Ahmed
Bin Salam Vs. State of Andhra
Pradesh [1999] INSC
142 (13 April 1999)
M. B. Shah,
G. B. Pattanaik Pattanaik,
J.
The
appellant and two others were tried by the Additional Metropolitan Sessions
Judge, Hyderabad for the offences under Sections 307
& 302 IPC and Sections 3 and 5 of the Indian Explosive Substances Act.
Accused Mohammed Sardar died during the pendency of the trial and therefore,
the criminal proceeding stood abated as against him. The appellant was
convicted by the learned Sessions Judge under Section 302 IPC and was sentenced
to imprisonment for life and also to pay a fine of Rs.5,000/- , in default to
suffer R.I. for two years. He was also sentenced to undergo imprisonment for a
period of 10 years and also to pay a fine of Rs.5000/-, in default to suffer
R.I. for two years for the offence under Section 307 IPC and under Section 3 of
the Explosive Substances Act, he was sentenced to undergo R.I.
for
ten years and also to pay a fine of Rs.5,000/-, in default to suffer R.I. for
three years and under Section 5 of the Explosive Substances Act, was sentenced
to R.I. for five years and to pay a fine of Rs.5000/-, in default to suffer
R.I. for two years. The sentences were ordered to run concurrently. The other
accused Mohd. Burhanuddin was convicted under Section 302/34 IPC and was
sentenced to imprisonment for life and to pay a fine of Rs.1000/-, in default
to suffer R.I. for one year and for the offence under Section 307/34, he was
sentenced to undergo imprisonment for a period of five years and also to pay a
fine of Rs.2000/-, in default to suffer R.I. for one year and for the offence
under Section 3 of the Explosive Substances Act read with Section 34 IPC, he
was sentenced to imprisonment for a period of 10 years and also to pay a fine
of Rs.2000/-, in default to suffer R.I. for two years and for the offence under
Section 5 of the Explosive Substances Act read with Sec.34 IPC, he was
sentenced to undergo imprisonment for a period of five years and also to pay a
fine of Rs.1000/-, in default to suffer R.I. for one year.
Sentences
were ordered to run concurrently. On appeal, the High Court of Andhra Pradesh
came to hold that the prosecution has failed to establish the charges under
Sections 3 and 5 of the Explosive Substances Act and accordingly set aside the
conviction and sentences thereunder, but affirmed the conviction of the
appellant under Section 302 IPC and Section 307 IPC as well as the sentences
passed thereunder and also the conviction and sentences against the accused Md.Burhanuddin
under Section 302/34 and Section 307/34. The appellant preferred the appeal in
this court which was registered as Crl.Appeal No.587/94 and the co-accused
preferred the appeal which was registered as Crl.Appeal No. 375/93. Crl.Appeal
No.375/93 stood abated as the appellant therein died during the pendency of
this appeal and hence we are concerned with the present appellant alone.
Prosecution
case in nutshell is that on 6.7.90 at about 10.15 AM, the three accused persons
came on a scooter which was being driven by accused Burhanuddin and the present
appellant hurled five bombs, causing injury to PW1 as well as deceased Gopal
Sharma and deceased Kishan Rao Kandekar and on account of such injuries
received by them, Gopal Sharma died in the hospital on 10.7.90 at 9 A.M. while Kishan
Rao Kandekar died on the same day at 6.50 A.M.
in Osmania General Hospital. The prosecution alleged that there
exist civil disputes between brother of the present appellant and PW1 and
others in respect of a land in Piagah colony and on account of the said dispute
one Sabir Bin Salam had been murdered on 2.3.90 and the police had registered
Crime No. 48/90 on that score against PWs 1,2, 6 and 8. After PW 1 was released
on bail in the aforesaid case on 4.5.90 and was running his wine shop at Muslimgunj
Bridge on partnership with one Ranjit Singh and was also doing real estate
business at a place opposite to the wine shop, on the relevant date the accused
persons came on a scooter and after getting down from the scooter accused No.1 (the
present appellant) who was the pillion rider, took out from a box some bombs
and hurled at the office of PW1 which exploded and there was lot of smoke and
it is in that explosion, not only PW1 himself was injured but the two persons
as already stated died and accused persons went away with the scooter. The two
deceased persons were brought to the Osmania General Hospital in an unconscious condition and PW1
himself was admitted to the hospital. The S.I. of Police PW25 came to know of
the incident from some passerby and then he came to the hospital where he
recorded the statement of PW1 Exhibit-P2. PW 26, another Sub-Inspector of
Police also had received a prior intimation Exhibit P2 and had registered the
crime case and treated the same to be F.I.R. and took up investigation. On
completion of investigation, the police submitted the charge-sheet and on being
committed, the accused persons stood their trial. The prosecution examined as
many as 28 witnesses and exhibited a large number of documents. The defence
plea was one of denial. The learned Sessions Judge and the High Court relied
upon the evidence of the three eye witnesses PWs 1, 6 and 7 and convicted the
appellant of the charge under Sections 302 and 307 as already stated on the
basis of the aforesaid evidence. It may be noted that the appellant was not in
the picture and his name also did not find place in the F.I.R. and it is only
after the statement of PW6 was recorded on 30.7.90, the appellant was brought
into the arena of accused persons.
Mr. U.R.Lalit,
the learned Senior Counsel, appearing for the appellant submitted that the
prosecution version as unfolded in the F.I.R. was to the effect that one Sayeed,
who was the pillion rider, got down from the scooter, took out a bomb and threw
it towards PW1and then four other bombs were thrown by him. This earliest
version is now being changed in course of evidence during trial and Sayeed is
being replaced by appellant and it is being stated that the appellant threw the
bomb. According to Mr. Lalit, this story as unfolded through prosecution
witnesses in court cannot be sustained in view of the positive statement of Raghunandan
PW1 that it was one Sayeed, who got down from the scooter, took the bomb and
threw it. According to Mr. Lalit,
the eye witnesses admittedly being enemical towards the accused persons, their
evidence need a stricter scrutiny before being accepted by the court and on
such a scrutiny being made, no court can rely upon their testimony in view of
several material omissions from their earliest version recorded under Section
161 Cr.P.C. and several contradictions have brought out by way of confrontation
and, therefore, the Sessions Judge and the High Court committed error in
relying upon the evidence of the aforesaid witnesses. It is to be noticed that
though in Exhibit P2, Raghunandan had categorically stated that Sayeed was
sitting as a pillion rider and then threw bombs but no charge-sheet was filed
against Sayeed and instead charge-sheet was filed against the present appellant
and two others who in the meantime have died.
Learned
Counsel appearing for the State of Andhra Pradesh, on the other hand contended that two courts having
believed the evidence of the three eye witnesses, it would not be proper for
this court to re-examine the same and, therefore the conviction of the
appellant cannot be interfered with.
It is
true that ordinarily this court does not examine the evidence and re-appreciate
the same when two courts of fact have already relied upon but if there appears
some glaring features in the evidence, which can be seen by mere perusal, then
the court will be failing in its duty if it does not examine the same to test
their reliability on which evidence the accused persons are being convicted of
a charge of murder and sentenced to imprisonment for life. Bearing in mind the
aforesaid principle if we examine the evidence of PW1, whose statement has been
recorded on the date of occurrence, it appears that it would be highly unsafe
to rely on his evidence. At the outset it may be stated that while in his
statement recorded on 6.7.90 he had unequivocally stated that on the scooter he
could recognise Sayeed and his two brothers and it is Sayeed who was having a
box in his hand and after getting down from the scooter took out a bomb and
threw it and thereafter four other bombs were thrown, but in his evidence in
court, the version is totally changed and he stated that only two persons were
on the scooter namely the appellant and accused No. 3 and it was appellant No.
1 who was the pillion rider and it is he who brought out a bomb from a box and
threw. When he was confronted with his earlier version made before the police
he gave the explanation that his signature was taken on a document without the
contents being known and, therefore his so-called earlier version is not his
statement. In his examination-in-chief, while he stated that he knew both the
accused persons those who were present in court but in cross examination he
stated that the accused persons were totally stranger and, therefore he participated
in the identification test that was conducted. When the contradictions made in
his earlier statement to the police were confronted, he flatly denied to have
made such statement to the police as contained in Exhibit P2. This being the
evidence of the witness in court, we have no hesitation to hold that he is
thoroughly unreliable witness and, therefore his testimony cannot be utilised
by the prosecution for bringing home the charge against the appellant. Coming
to the next witness PW6 who is stated to be a friend of PW1, it appears that he
was examined by the police on 30th of July, though the occurrence is of 6th of
July, 1990. There is no explanation for such delayed examination of this
witness under Section 161 Cr.P.C. In such delayed examination by the police,
the witness had categorically stated that three persons were going on the
scooter, whereas in court he stated that the appellant and accused No. 3 were
going on the scooter. In his statement under Section 161 Cr.P.C. he had stated
that it is Sardar, who got down from the scooter and took out the bombs and
threw it into the office of Raghunandan, whereas in court he stated that it is
the appellant who threw the bombs after getting down from the scooter. A
definite suggestion was given that Inspector Narasing Rao introduced himself
after a month of the incident to counter the earlier murder case and to put
pressure on accused No. 1 to compromise the case which of course the witness
denied but in view of the material contradictions as pointed out earlier even
with regard to the person who threw the bomb, we do not think it safe to rely
on the evidence of this witness for establishing the charge against the
appellant that it is the appellant who threw the bomb to the shop of PW1. PW7,
is yet another witness who in his evidence has stated that he was working in
the wine shop of PW1 And when on the day of occurrence he heard some sound he
found that one person was sitting on a scooter and the other person hurling 3
or 4 times some object towards office of PW1 And those are objects of
explosions and he pointed out towards the appellant to be the person who hurled
the bombs and he supposed to have identified them in a test identification
parade. But in his earliest statement to the police recorded under Section 161 Cr.P.C.
he had positively asserted that he knows all the brothers and if he really knew
all the brothers then the fact that he could not name any and the so-called
test identification parade is of no consequence. Further in his earlier
statement which was duly confronted to him, though he had stated that there
were three accused persons who sped away but in court he changes the version
and restricts it to accused No. 1 and accused No. 3. The so-called
identification also is of a peculiar nature and the witness in his evidence
stated that the police asked him whether he could identify the persons who were
on the scooter to which he replied in affirmative and then the two accused
persons were shown for the purpose of identification and he identified them. We
fail to understand as to how the so-called identification done in the aforesaid
manner will assist the prosecution in any way and this cannot be held to be a
test identification parade.
In the
aforesaid premises, we feel it unsafe to rely upon the statement of the
aforesaid eye witness PW7. Learned Counsel appearing for the State in course of
his submission has urged that even PW3 can be held to be eye witness to the
occurrence and it is he who identified the two accused persons in court when he
was examined on 8.4.1992. He did not state in the evidence that he knew the
persons and the prosecution had not taken any steps to hold the test
identification parade for getting the accused persons identified by this
witness. The so-called identification of the accused persons by this witness
after two years in course of trial is of no consequence and on such
identification it cannot be said that the prosecution has been able to bring
home the charge against the accused.
This
witness also in his 161 Statement, unequivocally stated that the three persons
came on a scooter and one got down and took out a box and pick up a bomb and
threw it to the office of the PW1 which exploded loudly and it further stated
that of the three persons who ran away one among whom was Sayeed but in court
gave a totally different picture and on being confronted with his earlier
version makes a clean denial. In this state of unsatisfactory prosecution
evidence it is difficult for us to sustain the conviction of the appellant of a
serious charge of murder and we have no hesitation to hold that the learned
Sessions Judge as well as the High Court committed serious error by relying
upon such untrustworthy witnesses. In our considered opinion the prosecution
has totally failed to establish the charge against the appellant beyond
reasonable doubt and the appellant is entitled to be acquitted. We accordingly,
set aside the conviction and sentence passed against the appellant and acquit
him of the charges levelled against.
This
criminal appeal is allowed . The bail bonds stand discharged.
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