Javed Masood ANR. Vs. State of Rajasthan  INSC 156 (9 March 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1522
OF 2008 Javed Masood & Anr. ...APPELLANTS VERSUS
Sudershan Reddy, J :
This appeal pursuant to the special leave granted is directed
against the concurrent judgments.
The two appellants were tried for offences punishable under
Sections 147, 323, 324, 302 of IPC. The trial court convicted both of them for
the offences punishable under Sections 148, 201 and 302 IPC. On appeal, the
High Court, however, confirmed the sentences awarded against the appellants for
the offences punishable under Section 302 of the IPC while setting aside the
conviction of the 2 appellants of the charges under Sections 201 and 148 IPC.
prosecution case is as follows :
25, 1999 at about 1.00 p.m., Chuttu @ Nizamuddin (PW-5) lodged a Parcha Bayan
(Ex.P-12) before the Police Sub-Inspector of Kotwali, Tonk inter-alia stating
that at about 12.30 in the noon he along with Saleem (PW-7) and Noor (PW-13)
were getting a truck repaired at Rajasthan Tyrewala near Roadways Depot, Tonk.
One Mohamaad Deen @ Mulla (deceased) came at the shop of Ayub Bhai (PW-6).
All of a
sudden about 10-12 persons equipped with deadly weapons such as gupties,
swords, knives and gandasas came there and surrounded the deceased. Javed
Masood (A.1), Syed Najeeb Hassan (A.2), Ashraf and Aziz were armed with gupties
and others were equipped with swords and knives.
Masood inflicted blow with gupti on the chest of the deceased, Najeeb and
others inflicted blows on neck, face and back. One Gullo and Sadiqque gave
blows with swords on hands of deceased. Thereafter the assailants fled away
from the scene of occurrence under the impression that Mohammad Deen @ Mulla
was dead. Meanwhile police patrol van reached at the spot and removed the
deceased to the 3 hospital where he was declared dead. On the basis of Parcha
Bayan, the FIR No.184/99 (Ex.P-48) was registered and investigation commenced.
On completion of investigation, charge-sheet was filed against the appellants
and investigation was kept pending under Section 173(8) Cr.P.C.
the rest of the individuals named in the Parcha Bayan.
prosecution in support of its case examined as many as 33 witnesses and got
marked certain documents and material objects in evidence. The appellants
denied the charges and claimed trial.
The trial court accepted the prosecution case and convicted and
sentenced the accused, as stated above. The trial court held that the
prosecution proved its case beyond reasonable doubt against the appellants and
held them guilty of having entered into a criminal conspiracy, unlawful
assembly and committing murder of the deceased. The High court, however,
confirmed the conviction of the appellants only under Section 302 IPC and
acquitted them of the rest of the charges.
In the appeal before the High Court and as well as before us, it
was contended on behalf of the defence that the 4 incident took place out of
acute enmity. The evidence of highly interested eye-witness should be rejected
as there is likelihood of implicating some innocent persons.
Shri Amarender Sharan, learned senior counsel, inter-alia,
submitted that the presence of alleged eye-witnesses at the scene of offence is
highly doubtful and no reliance can be placed on their evidence. He relied on
the evidence of Mohammad Ayub-PW-6 and police personnel-Laxmi Narayan-PW-29,
Suresh Kumar-PW-18 and Ranjeet Singh- PW-30 in this regard. The learned counsel
appearing for the State supported the judgment under appeal.
As has been rightly held by the courts below that the death of
Mohammad Deen @ Mulla was homicide in nature. As per post-mortem report
(Ex.P-43) following ante mortem injuries were found on the dead body:
Incised wound 1" x =" sub cut deep right parietal posterior part,
Incised wound 1" x =" pharyngeal cavity deep elliptical vertical
bleeding + Rt. carotid region ant. to ear lobule.
Incised wound =" x <" muscle deep on Rt. parotid region anterior
to injury No. 2 vertical elliptical.
Contusion 3" x 2" lt. forehead above lt. eye brow with black eye.
Incised wound 1" x 1/8" sub cut elliptical 1=" lateral to eye on
face right vertical.
wound elliptical 1=" x =" muscle deep on upper 1/3rd forearm Lt.
Incised wound elliptical 1=" x =" muscle deep on lt. arm upper 1/3
Penetrating incised wound 1=" x =" Rt. chest cavity deep 2"
above & =" medial to right nipple on anterior right chest wall
elliptical, directing down & medial aspect.
Penetrating incised wound 1=" x =" chest cavity deep elliptical,
oblique 1<" medial to injury No. 8 giving downward & laterally on
ant. chest wall (Rt.)
Incised wound 1=" x >" muscle deep elliptical oblique direction
medial & lateral aspect Rt. lower chest mammary line interiorly.
Penetrating Incised wound 1=" x =" abdominal cavity deep on left
hypochondrium on abdominal wall elliptical obliquely placed 2" below sub
costal Lt. marg & 2" lt. lateral to mid line.
Incised wound =" x 1/8" sub cuticle 4=" below left nipple
Abrasion 3 No. 2=", 2", 1" linear oblique each parallel to each
other 4" lat. & above to umblicus on lt. Ant. abdominal wall.
Incised wound 4" x =" muscle oblique above down 2"
to (Rt. nipple, on Rt. chest anterior lat.)
Incised wound 1=" x <" muscle deep elliptical horizontally in mid
axillary region (right).
Penetrating Incised wound 1=" x =" chest cavity deep Rt. mid axillary
region =" below injury No. 15, elliptical vertical bleeding.
Incised wound 1=" x =" x scapular deep horizontal elliptical Rt. back
chest inter scapular region.
Incised wound 1<" x <" muscle deep left to mid line of back on
chest vertical elliptical
Incised wound 1<" x <" muscle deep transverse =" right
medial to mid line on Rt. back of chest
Incised wound =" x <" muscle deep on left lower to chest back in
lower part elliptical horizontal.
Abrasion (three) <" x <" each three No. number Rt. knee joint.
Abrasion (two) <" x <" on left knee joint.
The cause of death according to the medical opinion was due to the
excessive haemorrhage on account of injuries caused to right lung and liver.
The injuries found on the chest were penetrating in nature.
The short question that arises for consideration in this appeal is
as to whether the courts below committed any manifest error in relying on the
evidence of Chuttu (PW-5), Noor (PW-13) and Rayees (PW-14) to convict the
appellants for the charge under Section 302 IPC. It is well settled and needs
no restatement at our hands that concurrent findings of facts are not usually
interfered with 7 by this court in exercise of its jurisdiction under Article
136 of the Constitution of India by reappreciating the evidence unless it is
clearly established that the courts below altogether ignored vital piece of
evidence and rested their conclusion placing reliance on the evidence which
cannot be accepted on the face of it.
Chuttu (PW-5) who lodged the FIR is an important witness.
or less confirmed in the examination-in-chief as to what has been stated by him
in Parcha Bayan (Ex.P-12).
specifically alleged that Javed Masood (A.1) inflicted gupti blow on the chest
of the deceased and Najeeb (A.2) had inflicted with gupti on abdomen and chest.
It is in his evidence that the occurrence was witnessed by Husain (PW-4),
Rayees (PW-14) and Ayub Bhai Tyrewala (PW-6).
that while assault was going on the deceased he remained shouting and no one
came to rescue the deceased. Meanwhile, a white coloured police gypsy arrived
at the scene of offence in which the deceased was removed to hospital where
Mullaji was declared dead. He admitted that police gypsy reached just after two
minutes of occurrence. He also admitted that there was an enmity 8 between him
and the appellants as Javed Masood lodged a case against him and PW 14 and
The evidence of Ayub Bhai (PW-6) is very crucial. It is in his
evidence that on the fateful day the deceased alone had come on a motorcycle to
his shop at about 12.30 p.m. to repay an old debt. The deceased requested for
sale of some more tyres on credit basis to which he refused.
conversation for about 15 minutes in that regard. While the deceased was
sitting in the shop he went into the basement of the shop to find as to any old
tyres were available to sell as requested by the deceased and when he returned
to the shop the deceased was not found in the shop. Then he found crowd in the
street parallel to his shop and went to the place to know as to what transpired
and found the deceased was lying overturned completely soaked in blood. He had
died at the place of occurrence. Within 5-10 minutes the police came in gypsy
and removed the body to hospital in gypsy. It is specifically stated in his
evidence that PW-5-Chuttu who is none other than the brother of the deceased
came to the spot after 10 minutes of the removal of the dead body and 9 enquired
from him regarding the occurrence and he informed that the police took him to
the hospital. He also stated in his evidence that he has not given the names of
any individuals to the police in as much as he had not seen the actual
occurrence of the incident. It is also in his evidence that immediately after
the incident he telephoned to one Habib with a request to communicate the
message to Chuttu about the occurrence. He repeatedly stated that Chuttu
(PW-5), Noor (PW-13), Saleem (PW-7) and Rayees (PW-14) were not present when
the police kept the dead body of Mullaji (deceased) in gypsy. He also explained
that there was no need for him to send any telephonic message had they been
present at the scene of occurrence. This witness did not support the prosecution
case. He was not subjected to any cross-examination by the prosecution. His
evidence remained unimpeached.
The evidence of Noor (PW-13) and Rayees (PW-14) is more or less
the same as of PW-5 and therefore no detailed discussion is required about their
Suresh Kumar (PW-18) is a Police Constable who along with driver
Ranjit Singh (PW-30) went in the gypsy to the 10 spot and lifted the injured
person into gypsy to take him to the hospital. He stated in his evidence that
at that time except himself, driver Ranjit Singh (PW-30) and Circle Inspector
nobody else was present. He specifically stated that Chuttu (PW-5), Rayees
(PW-14) and Noor (PW-13) were not present at the place of occurrence at the
time when he reached the scene of offence. Laxshami Narayan (PW-29) is another
Policeman who corroborated the evidence of Constable Suresh Kumar (PW-18)
stating that he and Constable Suresh Kumar and driver Ranjit Singh (PW-30) kept
the body of the injured (deceased) in the gypsy and went to Sahadat hospital.
There was crowd near the injured person but no relative of deceased was
present. In the same manner Ranjit Singh (PW-30) driver of the gypsy
corroborated the evidence of PW-18 and PW- 29 stating that no one was present
when they have lifted the body from the scene of occurrence and placed the same
in gypsy. All of them were police personnel and on duty at the relevant time.
There is no reason for them to depose falsely. It is nobody's case that PWs 6,
27, 29 and 30 are not independent witnesses. There is no reason to 11
disbelieve the evidence of PW-6 and no valid reason has been suggested as to
why his evidence cannot be relied on and taken into consideration. The evidence
of PW-6, if it is to be taken into consideration, makes the presence of PWs 5,
13 and 14 highly doubtful at the scene of occurrence. We do not find any reason
whatsoever to discard the evidence of PW-6 who is an independent witness. He
was not present at the actual scene of offence when the deceased was subjected
to attack even though PW-5, in his evidence stated as if PW-6 was also present
at the time of attack. But PW-6 in categorical terms stated, by the time he
went to the scene of offence within a couple of minutes, the deceased was lying
dead in a pool of blood and neither PW-5 nor PWs 13 and 14 were present at the
scene of offence. PW-5 is none other than the brother of deceased and a highly
interested witness whose evidence was required to be carefully scrutinised and
precisely for that reason we have looked into the evidence of PW-5 with care
and caution. The testimony of Mohammad Ayub (PW- 6) cannot easily be surmounted
by the prosecution. He has testified in clear terms that PWs 5, 13 and 14 were
not 12 present at the scene of occurrence. It is not known as to why the public
prosecutor in the trial court failed to seek permission of the court to declare
him "hostile". His evidence is binding on the prosecution as it is.
No reason, much less valid reason has been stated by the Division Bench as to
how evidence of PW-6 can be ignored.
In the present case the prosecution never declared PWs 6,18, 29
and 30 "hostile". Their evidence did not support the prosecution.
Instead, it supported the defence. There is nothing in law that precludes the
defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs.
(NCT of Delhi)1 observed:
A similar question came up for consideration before this Court in Raja Ram v.
State of Rajasthan, (2005) 5 SCC 272. In that case, the evidence of the Doctor
who was examined as a prosecution witness showed that the deceased was being
told by one K that she should implicate the accused or else she might have to
Doctor was not declared "hostile". The High Court, however, convicted
the accused. This Court held that it was open to the defence to rely on the
evidence of the Doctor and it was binding on the prosecution.
5 SCC 258 13
the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the
prosecution that he had given his Maruti car to police in which police had gone
to Bahai Temple and apprehended the accused. When Goel did not support that
case, accused can rely on that evidence."
The proposition of law stated in the said judgment is equally
applicable to the facts in hand.
It is clear that the evidence of PW-6 completely rules out the presence
of Chuttu (PW-5) at the scene of offence. It is thus clear that PW-5 was not
speaking truth, being interested witness obviously made an attempt to implicate
the appellant in the case due to previous enmity. Be it noted that the entire
prosecution case rests upon the Parcha Bayan (Ext. P12) lodged by PW-5. Once
his presence is disbelieved, the whole case of the prosecution collapses like a
pack of cards. In addition, the evidence of PWs 18, 29 and 30 who are all
independent witnesses, also cast a serious shadow on the evidence of PWs 5, 13
and 14 as regards their presence at the scene of offence. It is under those
circumstances, we find it difficult and impossible to place any reliance
whatsoever on the 14 evidence of PW-5 who is a highly interested and partisan
witness. No reliance can be placed on his evidence in order to convict the
appellants of the charge under Section 302, IPC. For the same reasons, the
evidence of PWs 13 and 14 also is to be discarded. None of them was speaking
The Courts below altogether ignored these vital aspects of the
matter which compelled us to carefully analyze their evidence. On such careful
analysis, we find it difficult to accept the evidence of PWs 5, 13 and 14 to
sustain the conviction and sentence imposed on the appellants. There is no
other acceptable evidence on record based on which the charge could be held
proved against the appellants.
For the aforesaid reasons the conviction of the appellants and the
sentence imposed on them is set aside and they are directed to be released
The appeal is accordingly allowed.
...............................................J. (B. SUDERSHAN