KHURSHID AHMED versus STATE OF JAMMU AND KASHMIR on 15 May 2018

[2018] 6 S.C.R. 1121

KHURSHID AHMED

v.

STATE OF JAMMU AND KASHMIR

(Criminal Appeal No. 872 of 2015)

MAY 15, 2018

[N. V. RAMANA AND S. ABDUL NAZEER, JJ.]

Ranbir Penal Code – s.302 – Prosecution case that there wasa scuffle between the appellant-accused and ‘A’ over some paymentissue – Same day in evening, appellant-accused assaulted ‘A’ onhis head in presence of his father-PW-9 – ‘A’ and PW-9 rushed toclinic for first aid and then went to police station and lodged anoral complaint – Head injury resulted in the death of ‘A’ – TrialCourt acquitted accused – However, High Court reversed the orderof acquittal into conviction u/ss. 302/341 RPC – Appellant-accusedcontended that the entire case depended on the veracity of evidenceof PW-9 but he was an interested witness and therefore his evidencewas not reliable – On appeal, held: Trial Court adopted hypertechnical approach which resulted in the acquittal of the accused –FIR lodged on the basis of the oral complaint made by the deceasedat the police station was a reliable document and was made soonafter the incident – The subsequent statement of the deceased at thehospital as recorded by the I.O. was duly corroborated by theevidence of PW-9 – PWs 2 & 10 also corroborated the testimony ofPW-9 and proved the attack as PWs 2 & 10 had heard the samefrom deceased himself – PW10 had deposed to have witnessed thescuffle between the accused and the deceased at the latter’s shopin the daytime and also the threat given by the accused – PWs 2 &10 had also witnessed the recovery of weapon of offence (iron rod)at the instance of accused, as the weapon was recovered by thepolice in their presence – Presence of PWs 2 & 10 at time of recoveryof weapon and their depositions corroborate and strengthens thecase of prosecution – Further, Doctor-PW13 deposed that cause ofdeath was head injury resulted by a blunt object and further revealedthat deceased had narrated to him how he was assaulted –Postmortem report and the evidence of doctor-PW-13 fullycorroborates with evidence of PW-9 – If the evidence of an

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Aeyewitness, though a close relative of the victim, inspires confidence,it must be relied upon without seeking corroboration with minutematerial particulars – Testimony of father-PW-9 inspired confidenceand the chain of events and circumstantial evidence thereofcompletely supports his statements which in turn strengthens theprosecution case with no manner of doubt – His evidence wasBintrinsically reliable and wholly trustworthy – A conspectus of allthe material conclude that the prosecution was successful in provingthe guilt of the accused beyond reasonable doubt.

Appeal – Powers of appellate Court – Held: The power ofthe appellate Court in an appeal against acquittal is same as thatCof an appeal against conviction – But, in an appeal against acquittal,the Court has to bear in mind that the presumption of innocence isin favour of the accused and it is strengthened by the order ofacquittal – At the same time, appellate Court will not interfere withthe order of acquittal mainly because two views are possible, butDonly when the High Court feels that the appreciation of evidence isbased on erroneous considerations and when there is manifestillegality in the conclusion arrived at by the trial Court.

Dismissing the appeal, the Court

Conclusion

Dismissing the appeal, the Court

HELD: 1. In the instant case, according to PW9 (father ofEthe deceased), the deceased had supplied some G.I. tin sheets toone person and the accused stood as guarantor for its payment.On the day of occurrence, when the deceased demanded to paythe money from the accused, he got annoyed and caught hold ofthe neck of the deceased and started beating him by which someFbruises also appeared on the right side of his neck. At that pointof time, (PW1), (PW12) and (PW10) were present there andseparated them. The accused then threatened the deceased thathe would see him anytime. After the closure of shop, whendeceased was going home along with his father, on their way theaccused holding an iron rod in his hands, appeared from oppositeGdirection, intercepted their way and abused them. When theymoved forward, the accused hit the deceased on his head withthe rod due to which he fell down with bleeding. [Para 17][1132-E-G]

2. The evidence of (PW2) and (PW10) also corroborateHthe testimony of PW9 and prove the attack as PWs 2 & 10 having heard the same from the deceased himself. PW10 has categoricallydeposed to have witnessed the scuffle between the accused anddeceased at the latter’s shop in the daytime, and also the threatgiven by the accused. He further stated that the deceased wastaken to the hospital on his motor cycle and he accompanied thedeceased throughout till the last rites of the deceased. PWs 2and 10 further stated that they have also witnessed the recoveryof weapon of offence (iron rod) at the instance of accused, as theweapon was recovered by the police in their presence. The saidrecovery of weapon in the presence of PWs 2 & 10 and theirdepositions would therefore corroborate and strengthens the caseof prosecution. [Para 18][1133-A-D]

3. The Doctor opined that the cause of death was headinjury resulted by a blunt object within the duration of 12 hours.It was specifically deposed by the Doctor in his evidence that theinjuries found on the body of the deceased were sufficient to causedeath. It was further revealed that while undergoing initialtreatment at the hospital, the deceased narrated to him that whenhe was going towards his home, someone had assaulted. Thepostmortem report and the evidence of Doctor (PW13) fullycorroborates with the evidence of PW9. [Para 19][1133-G-H;1134-A-B]

4. If the evidence of an eyewitness, though a close relativeof the victim, inspires confidence, it must be relied upon withoutseeking corroboration with minute material particulars. It is nodoubt true that the Courts must be cautious while consideringthe evidence of interested witnesses. In his evidence, thedescription of the incident by PW9 clearly portrays the way inwhich the accused attacked the deceased causing fatal head injuryas propounded by the prosecution. The testimony of the father ofdeceased (PW9) must be appreciated in the background of theentire case. [Para 27][1136-E-F]

5. The testimony of PW9 inspires confidence, and the chainof events and the circumstantial evidence thereof completelysupports his statements which in turn strengthens the prosecutioncase with no manner of doubt. PW9 is a ‘natural’ witness to theincident. On a careful scrutiny, evidence of PW9 is intrinsicallyreliable and wholly trustworthy. [Para 28][1136-G-H]

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A6. When analyzing the evidence available on record, Courtshould not adopt hyper technical approach but should look at thebroader probabilities of the case. Basing on the minorcontradictions, the Court should not reject the evidence in itsentirety. Sometimes, even in the evidence of truthful witness,there may appear certain contradictions basing on their capacityBto remember and reproduce the minute details. Particularly inthe criminal cases, from the date of incident till the day they giveevidence in the Court, there may be gap of years. Hence theCourts have to take all these aspects into consideration and weighthe evidence. The discrepancies and contradictions which do notCgo to the root of the matter, credence shall not be given to them.In any event, the paramount consideration of the Court must beto do substantial justice. The trial Court has adopted an hypertechnical approach which resulted in the acquittal of the accused.In the present case, there was manifest irregularity in theappreciation of evidence by the trial Court. The High Court basedDon sound principles of criminal jurisprudence, has interfered withthe judgment of acquittal passed by the trial Court and convictedthe accused as the prosecution was successful in proving theguilt of the accused beyond reasonable doubt. [Paras 30, 32][1137-B-D; 1138-C-D]E

Dalip Singh & Ors. v. State of Punjab [1954] 1 SCR145; Masalti v. State of U.P. [1964] 8 SCR 133; HarbansKaur & Anr. v. State of Haryana 2005 CriLJ 2199;Padam Singh v. State of U.P. (2000) 1 SCC 621 : [1999]5 Suppl. SCR 59 – relied on.

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Rathinam @ Rathinam v. State of Tamil Nadu & Anr.(2011) 11 SCC 140 : [2010] 11 SCR 871; BindeshwariPrasad Singh & Ors. v. State of Bihar & Anr. (2002) 6SCC 650 : [2002] 1 Suppl. SCR 495; Sunil KumarSambhudayal Gupta & Ors. v. State of MaharashtraG(2010) 13 SCC 657 : [2010] 15 SCR 452; ShivajiSahabrao Bobade & Anr. v. State of Maharashtra(1973) 2 SCC 793 : [1974] 1 SCR 489; State of U.P. v.Kishanpal & Ors. (2008) 16 SCC 73 : [2008] 11SCR 1048; Nallabothu Venkaiah v. State of AndhraPradesh (2002) 7 SCC 117 : [2002] 1 Suppl. SCR 606; H

Jarnail Singh & Ors. v. State of Punjab (2009) 9 SCC719 : [2009] 13 SCR 774; Shivaji Genu Mohite v. Stateof Maharashtra AIR 1973 SC 55 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.872 of 2015.

From the Judgment and Order dated 11.03.2015 of the High Courtof Jammu Kashmir at Jammu in Criminal Acquittal Appeal No. 36 of2012.

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Mohd. Aslam Goni, Sr. Adv., Syed Mehdi Imam, Atif Suhrawardy,Omar Siddiqui, Ms. Varnita Rastogi, Tabrez Ahmad, Advs. for theAppellant.

Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, M. ShoebAlam, Advs. for the Respondent.

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The Judgment of the Court was delivered by

N. V. RAMANA, J. 1. This appeal is directed against thejudgment dated 11[th] March, 2015 passed by the High Court of Jammuand Kashmir at Jammu in Criminal Appeal No. 36 of 2012. By the saidjudgment, the High Court reversed the order of acquittal passed by the H

APrincipal Sessions Judge, Bhaderwah against the appellant, and convictedhim for the offences punishable under Sections 302/341 of the RanbirPenal Code (hereinafter referred to as ‘RPC’) and sentenced him tosuffer imprisonment for life and to pay a fine of Rs.1,000/- for the offencepunishable under Section 302, RPC and to pay a fine of Rs.500/- for theoffence under Section 341, RPC, with the direction to realize the fineBamount from his estate.

2. The brief facts, as culled out from the prosecution case arethat on 18[th] May, 2006 a shop keeper of hardware material, namely,Arshad Sajad accompanied by his father Sajad Ahmed Bhat (PW9)were going to their home after closure of shop in the evening at aboutC5.30 p.m., while they were on their way, near Masjid, the appellant hereinintercepted them from the opposite directionand started hurling abusesagainst them. When they ignored his abuses and moved forward, theappellant attacked Arshad Sajad on his head from behind with an ironrod. The injured Arshad Sajad and his father then went to the clinic ofDone Ali Mohd. (PW3) and on his advise they went to the Bhaderwahpolice station and informed the police about the incident. Accordingly,FIR No. 53 of 2006 was registered against the accused—appellant forthe offences punishable under Sections 341/323, RPC. Police then sentthe injured to Sub District Hospital, Bhaderwah for treatment.As hiscondition was deteriorating, for better treatment, he was being shifted toEGovernment Medical College, Jammu, but on the way,he succumbed tothe injuries.

3. Nisar Ahmed, S.H.O. of police station Bhaderwah—PW 14took up the investigation, sent the body of the deceased for postmortem,seized his clothes, inspected the spot, collected samples of bloodstainedFearth as well as normal earth and prepared site map (Ext. PW N.A.)and seizure memos. The accused—appellant was arrested on 20[th] May,2006 and one iron rod being the weapon of assault has been recoveredat his instance and sent it for chemical examination. Having recordedstatements of witnesses under Section 161, Cr.P.C. the I.O. carried onGthe investigation in which it was revealed that the motive behind theaccused assaulting the deceased was actually related to a prior tusslebetween them during the daytime at the shop of the deceased over afinancial transaction. Allegedly, basing on the guarantee and undertakinggiven by the accused—appellant, the deceased supplied some G.I. sheetsto one Gias-ud-Din. When the appellant came to the shop of the deceased,H

he insisted the appellant to make payment. Over that issue, there occurreda scuffle between the appellant and the deceased. The passersby includingFarid Iqbal (PW1), SajadAhmed—father of the deceased (PW9), AbidHussain (PW10) and Amjad Hanif (PW12) got them separated. Whileleaving the shop, the appellant declared that he will see the deceasedanytime, and in the evening when the deceased and his father (PW9)were going to their home, the accused met them on the way and assaultedthe deceased on his head.

4. As the head injury resulted in the death of Arshad Sajad, chargeagainst the accused was altered for the offence under Section 302/341,RPC and accordingly charge sheet waslaid. The accused pleaded notguilty and claimed to be tried.

5. At the trial, in its endeavour to prove the guilt of the accused,prosecution had examined as many as 14 witnesses, whereas the accusedin his defencehas examined one witness. The trial Court after a fullfledged trial, came to the conclusion that the prosecution has failed toprove motive and the statement of sole eyewitness (father of thedeceased) stood uncorroborated with the other witnesses, as theprosecution has failed to establish the guilt of the accused beyondreasonable doubt has acquitted the accused from the alleged offencesunder Section 302/341, RPC.

6. Aggrieved by the order of acquittal passed by the trial Court,the State of Jammu & Kashmir raised appeal before the High Court.Upon adjudicating the same, the High Court has come to the contraryconclusion and observed that the evidence of the sole eyewitness (fatherof the deceased) was duly corroborated by oral, documentary and expertevidence and by improperly rejecting the same, the trial Court hascommitted grave miscarriage of justice. Therefore, the High Courtreversed the order of acquittal into conviction for the charges underSection 302/341, RPC and sentenced the accused—appellant as statedhereinabove. That is how the accused is in appeal before this Court.

7. Before analyzing the evidence available on record and goinginto the legal aspects of the same, we feel it appropriate to first deal withthe contentions advanced by the learned counsel on either side.

8. Mohd. Aslam Goni, learned senior counsel representing theaccused-appellant has advanced hisargumentsstrongly pointing out thatin the entire case there were several lapses on the part of prosecution AB

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Awhich were ignored by the High Court, while reversing the well consideredjudgment of the trial Court. Disputing the genesis of FIR itself, learnedsenior counsel argued that as per the prosecution,on 18.5.2006, oral reportwas given by the deceased at 8.30 p.m. at police station, Bhaderwahabout the occurrence, based on which FIR was registered. According toI.O.—Nisar Ahmed (PW14), he recorded the statement of deceased atB10 p.m. in the hospital.But, the said statement is missing in the main filewhich was replaced with a statement in the handwriting of ASI—JanMohd (DW1), who has not been examined as a prosecution witness.The reason behind replacing the statement of I.O. with that of ASI JanMohd is only with a view to implicate the appellant in the crime.

C9.It was further contended that despite there being noproof of strong motive for the appellant to commit the offence,nor therebeing any independent eyewitness to the incident,the fact that only oneinjury has been suffered by the deceased, the High Court should nothave taken a different view to the one taken by the trial Court.The HighDCourt should have dealt with the case with high standard of presumptionof innocence on the part of the appellant. Supporting the decisionrendered by the trial Court, learned senior counsel relied on the judgmentsof this Court in Rathinam @ RathinamVs. State of Tamil Nadu&Anr., (2011) 11 SCC 140, Bindeshwari Prasad Singh & Ors. Vs. Stateof Bihar & Anr., (2002) 6 SCC 650 and Sunil KumarESambhudayalGupta & Ors. Vs. State of Maharashtra, (2010) 13SCC 657, submitted that interference by the High Court is not justified inthe present case inasmuch as there is no manifest error, perversity orillegality in the trial Court’s judgment.

10. The learned senior counsel tried to impress upon this CourtFthat the evidence of PW9 i.e. father of the deceased, is not trustworthyand he is an interested witness. Further, as a matter of fact, it can befound from Page No. 64 of account (khata) that there was nothing toestablish that the accused stood as guarantor to pay the sum due byGias-ud-Din.Taking strength from the deposition of PW9 that in 2007Gone VillayatGoni paid him the amount due in the name of Gias-ud-Din, itwas argued that prosecution has failed to prove the motive and the allegedoffence beyond reasonable doubt for the reason that it was someoneelse who paid the due amount but the prosecution had wrongly projectedthe accused as guarantor and unnecessarily implicated the appellant inthe case.H

11. Relying further on the decisions of this Court in ShivajiSahabraoBobade& Anr.Vs.State of Maharashtra, (1973) 2 SCC 793,State of U.P. Vs. Kishanpal& Ors., (2008) 16 SCC 73,NallabothuVenkaiahVs. State of Andhra Pradesh, (2002) 7 SCC 117and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9 SCC 719,learned senior counsel submitted that the High Court ignored theimportant legal principles while convicting the accused,who was alreadydeclared innocent and acquitted by the trial Court, under Section 302,RPC the circumstances should be conclusive in nature.The prosecutionstated that at the time of occurrence, one Aslam and Zakir were alsothere at the spot, but they were not named as witnesses nor were theyexamined. Even the alleged eyewitness, father of the deceased, has notexactly seen at whose hands the deceased was injured. It can be foundfrom his own words that he was walking one meter ahead of the deceasedand when he turned back on hearing the cry of his son, the appellantdisappeared from there. In such situation, the prosecution case solelybased on the evidence of PW9cannot be believed, as his evidence isfilled with assumptions and presumptions as well as surmises andconjectures.

12. The next contention of the learned senior counsel is that whenthe deceased was taken to hospital he was in complete consciousness,but the attending Doctor did not adopt proper course of treatment so asto save the life of the deceased. The Doctor did not even advise for X-ray. In fact, the death of the deceased should have been ascribed tomedical negligence.

13. On the other hand, learned counsel appearing for the State ofJammu & Kashmir, while supporting the judgment of the High Court,submitted that there is enough material on record to prove the guilt ofthe accused which is duly supported by the evidence of witnesses andcorroborated by the medical evidence. Immediately after the occurrence,the deceased personally visited the police station and apprised underwhat circumstances the accused attacked him. Even within three hoursafter the occurrence, the I.O. recorded the statement of injured victim(deceased) when he was sent to the hospital for treatment wherethedeceased had further explained to the I.O.in detail about the altercationtook place during the day in connection with the financial transaction forwhich the accused was a guarantor. When there is direct evidenceavailable on record in the form of statement of the deceased himself and AB

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Athe statement of the eyewitness SajadAhmed—father of the deceased(PW9), prosecution is no longer burdened with proving motive. At thesame time, it is also immaterial to examine all the witnesses who carriedthe injured to the hospital. Similarly, on the advice of Ali Mohammad(PW3) to inform about the assault to police, when the deceased hurriedlyreached the police station, his focus would naturally be limited only toBthe extent of informing the police about how he got injured and to getimmediate medical assistance, and it shall not be expected from a seriouslyinjured person to narrate whole episode at that point of time. In suchcircumstances, the High Court has rightly assessed the incriminatingfacts and circumstances and by a prudent judgment, reversed the orderCof acquittal into conviction for which the accused—appellant was liableas he had made an inhuman attack on the deceased merely for demandingto pay the money for which he stood as a guarantor.

14. Having heard the learned counsel on either side, after goingthrough the material available on record, we would like to deal with theDcontentions one after the other. The first and foremost contention, thelearned senior counsel appearing for the accused-appellant advanced iswith regard to the credence to be attached to the FIR No. 53 of 2006registered on 18.5.2006, we find from the material on record that soonafter the occurrence, the deceased as well as his father—Sajad Ahmed(PW9) rushed to the clinic of Ali Mohammad (PW3) for first aid, thenEon his advice they went to the police station at about 8.45 p.m. andlodged an oral complaint. Based on the same, FIR No. 53/2006 wasregistered and investigation has been entrusted to Ved Raj 185, HeadConstable. This fact is affirmed by the testimonies of father of thedeceased (PW9), Ali Mohammad (PW3) and PW14—Nissar Ahmed, FI.O. According to PW3, on the day of occurrence, the deceased and hisfather along with 2-4 persons visited his clinic seeking treatment to theinjured/deceased whereupon without providing any treatment, he advisedthem to go to the police station at first instance.

15. PW14—Nissar Ahmed, I.O. stated that the oral report wasGwritten by munshi and he had put his signature on it (Parcha-53). Aftercompleting that formality, he assigned the investigation to HawaldarVedRaj. Then at the first instance, he had sent the injured to hospital, andlater on hevisited the injured at about 11 p.m. in the hospital.Whereuponfinding his condition to be serious, he took up the investigation andrecorded the statement of injured and added offence under Section 307,H

RPC. He specifically mentioned that the statement recorded underSection161, Cr.P.C. was not in his own handwriting but he has affixedhis signature on it. In our opinion, there is no doubt that the FIR waslodged in this case on the basis of the oral complaint made by thedeceased at the police station which is a reliable document and madesoon after the incident. Time and again this Court has illustrated that thefirst information report is not an encyclopaedia. It is not necessary thatit should contain each and every detail concerning the offence at thetime of lodging of FIR. Here in the present case, the informant who hadreceived a severe head injury and accompanied by his father (PW9),went to the clinic of PW3 and later to the police station, would havebeen under great tension. Their mental condition in such a situation canbe visualised. In such a state of mind, failure on their part to disclose theentire sequence of events in the first information report is neither unnaturalnor fatal to the case of the prosecution. The trial Court has misconstruedthe two statements of the deceased, one given at the police stationimmediately after the occurrence and the other, at the hospital while hiscondition was deteriorating. We are of the view that the subsequentstatement of the deceased at the hospital as recorded by the I.O. is dulycorroborated by the evidence of PW9 and absolutely there is no reasonto disbelieve the same and the contention in this regard is meritless.

16. Another argument advanced is that there was no motive tocommit the offence and in the absence of strong motive, the appellantcannot be held guilty under Section 302, RPC. In the present case, motivecan be traced from the evidences produced by the prosecution withregard to the prior incident that took place between the deceased andaccused in connection with payment of money over a transaction where

the accused stood as a guarantor. Because of the earlier scuffle, thesubsequent incident has occurred in which the accused hit the deceasedwith an iron rod due to which the deceased lost his life.It is appropriateto observe that in Halsbury’s Laws of England, 3[rd] Edition, with regardto ‘motive’, it is stated that “the prosecution may prove, but it is notbound to prove the motive for a crime”. ‘Motive’ is an emotion whichcompels the person to do a particular act. But in all the cases, it will bevery difficult for the prosecution to prove the real motive. Motive is adouble edged weapon when there is a direct and reliable evidenceavailable on record, motive loses its importance. In a case ofcircumstantial evidence, motive assumes greater importance than in the AB

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Acase of direct evidence. In a case of direct and compelling evidence,even assuming that no motive is attributed, still the prosecution versionhas to be examined. As regards to the importance of existence of motivein a criminal case, here it is worthwhile to look at the ratio laid down bythis Court in Shivaji Genu Mohite v. State of Maharashtra,AIR 1973SC 55:B

“In case the prosecution is not able to discover an impelling motive,that could not reflect upon the credibility of a witness proved tobe a reliable eye-witness. Evidence as to motive would, no doubt,go a long way in cases wholly dependent on circumstantialevidence. Such evidence would form one of the links in the chainCof circumstantial evidence in such a case. But that would not beso in cases where there are eye-witnesses of credibility, thougheven in such cases if a motive is properly proved, such proofwould strengthen the prosecution case and fortify the court in itsultimate conclusion. But that does not mean that if motive is notDestablished, the evidence of an eye-witness is rendereduntrustworthy”.

17. In the light of the above, wehave to examine whether theprosecution was successful in proving the motive and what is the evidenceavailable on record to prove the alleged act of the accused. In the instantEcase, according to PW9, the deceased had supplied some G.I. tin sheetsto one Gias-ud-Din and the accused stood as guarantor for its payment.On the day of occurrence, when the deceased demanded to pay themoney from the accused, he got annoyed and caught hold of the neck ofthe deceased and started beating him by which some bruises alsoappeared on the right side of his neck. At that point of time, Farid IqbalF(PW1), Amzad Hanif (PW12) and Abid Hussain (PW10) were presentthere and separated them. The accused then threatened the deceasedthat he would see him anytime. After the closure of shop, when deceasedwas going home along with his father, on their way the accused holdingan iron rod in his hands, appeared from opposite direction, interceptedGtheir way and abused them. When they moved forward, the accused hitthe deceased on his head with the rod due to which he fell down withbleeding. When PW9 responded to the cry of his son, the accuseddisappeared from the scene. Thereafter they went to a local doctor(PW3) for first aid and then reported the matter at police station.

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18. It is also evident from the record that the iron rod of 3 feetlength and 8 centimeter circumference, used as weapon of offence wasrecovered by the police at the instance of the accused vide Ext. PW-MH I on 21.5.2006. The evidence of Mohd. Hafeez (PW2) and AbidHussain (PW10) also corroborate the testimony of PW9 and prove theattack as PWs 2 & 10 having heard the same from the deceased himself.PW10 has categorically deposed to have witnessed the scuffle betweenthe accused and deceased at the latter’s shop in the daytime, and alsothe threat given by the accused. He further stated that the deceasedwas taken to the hospital on his motor cycle and he accompanied thedeceased throughout till the last rites of the deceased. PWs 2 and 10further stated that they have also witnessed the recovery of weapon ofoffence (iron rod) at the instance of accused, as the weapon wasrecovered by the police in their presence. The said recovery of weaponin the presence of PWs 2 & 10 and their depositions would thereforecorroborate and strengthens the case of prosecution.

19. We have also given our precise consideration to the evidenceof Dr. Raj Kumar—PW 13 who conducted postmortem on the body ofthe deceased on 19[th] May, 2006. The postmortem report (Annexure P/

2) shows that the deceased sustained the following injuries:

1. Lacerated wound bone deep 1.5 cm x 0.25 cm on left frontalparietal region (Stitched).

2. Three linear scratch marks on right side of neck each ½ cm. inlength.

On internal examination, the Doctor found

1. Linear left temporal frontal region

2. Extradural haematoma on left lamprey parietal region

3. Meiurages over left temporal lobe torn

4. Underlying left temporal parietal lobe lacerated The Doctor opined that the cause of death was head injury resultedby a blunt object within the duration of 12 hours. It was specificallydeposed by the Doctor in his evidence that the injuries found on the bodyof the deceased were sufficient to cause death. It was further revealedthat while undergoing initial treatment at the hospital, the deceasednarrated to him that when he was going towards his home, someone had A

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Aassaulted. In his cross examination, the Doctor made it clear that whenthe deceased was kept in observation, he was in full senses and aspecialist surgeon was also called. Ambulance was also provided to shiftthe patient to GMC, Jammu for providing better treatment. He could notdetect the fracture of left frontal parietal bone initially due to non-availability of X-ray, but even if it was detected, it could be fatal, but inBsome cases if specialized treatment is provided life could be saved. Inour considered view, the postmortem report and the evidence of Dr. RajKumar (PW13) fully corroborates with the evidence of PW9.

20. Considering the evidence of other prosecution witnesses, wefind that Farid Iqbal (PW1), an independent witness, proved the scuffleCthat took place at the shop of the deceased, and the angered accusedadmonishing and threatening the deceased that he will see him anytime.PW4—Nazir Ahmed, deposed that police had taken his signatures atthe time of postmortem on blank paper. However, he proved to havereceived the dead body of the deceased (Ext. PW-NH). PW5—RiyazDAhmed also while proving the receipt of dead body of the deceased,deposed that 20-25 days after the death of deceased, police seized aregister from the shop of deceased, to which he was the witness. PW7—Mohammad Ramzan stated that when he visited the hospital in the year2006, the clothes were put off from the body of the deceased in hispresence. Accordingly he witnessed the seizure of clothes of the deceasedEand put his signature on the seizure memo (Ext. PW-MR). Mohd. Saleem(PW8) also deposed that police seized the clothes of the deceased andhe had put his signature on the seizure memo. PW11—Ishteyaq Ahmedand PW12—Amjad Hanif also supported the prosecution case in toto.

21. Upon considering the evidence of defence witness Jan Mohd.F(DW1), it appears that at the relevant time he was working as ASI, hecan very well write and read Urdu, whereas the I.O. (PW14) could notwrite Urdu. Therefore, on the directions of I.O., he prepared exhibitssuch as site plan (Ex. PW NA), seizure memo (Ex. PW SH II),FardInkshaf (Ex. PW NH), FardBaramdgi (Ex. PW NH I),GFardSuprdnama (Ex. PW SH III), Fard Jama Talashi (Ex. PW NAV)and statements of witnesses, in his own handwriting. In his cross-examination, it has been revealed that he is a distinct relative to theaccused and educated only up to middle standard. Investigation has notbeen carried out by him, but only on the instructions of I.O. he draftedthe memos wherein his integrity remained doubtful as he tried to alterH

the prosecution case. In such a case, we cannot give any weightage tohis deposition.

22. It was contended that the accused was not at all a guarantorto the alleged transaction and he had been unnecessarily implicated inthis case. In our view, there is no need for this Court to go into the rootsof the financial transaction to find out whether the deceased, a smalltimemerchant of hardware items, kept his account books in proper order ornot and who is debtor and who is guarantor. Our concern is to see whetherthe accused has committed the overt act that led to the death of deceasedand whether the accused is liable to be punished in accordance withlaw. The trial Court appears to have misguided itself in appreciating theevidence on record and acquitted the accused by ignoring the materialand legal aspects surrounding the case.

23. In view of the above discussion, we are of the consideredview that the direct oral evidence available on record coupled with themedical evidence, points at the guilt of the accused and not proving themotive for commission of the offence lost its significance in the facts ofthe case.

24. The learned senior counsel submits that in the present case,according to the prosecution, Sajad Ahmed, father of the deceased (PW9)was the only person who was present at the scene of offence at thetime of occurrence. The entire case, therefore, depends on the veracityof his evidence. PW9, being father of the deceased, the appellant—accused had naturally made the allegation that he is an interested witnessand therefore his evidence is not reliable. We are not able to appreciatesuch contentions. This Court considered the aspect of truthfulness of aninterested witness in several cases. In Dalip Singh& Ors. v. State ofPunjab, (1954) 1 SCR 145 it is observed:

“Ordinarily, a close relative would be the last to screen the realculprit and falsely implicate an innocent person. It is true, whenfeelings run high and there is personal cause for enmity, that hereis a tendency to drag in an innocent person against whom a witnesshas a grudge along with the guilty, but foundation must be laid forsuch a criticism and the mere fact of relationship far from being afoundation is often a sure guarantee of truth”.

25. In Masalti v. State of U.P., (1964) 8 SCR 133 this Courtobserved:

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A“There is no doubt that when a criminal Court has to appreciateevidence given by witnesses who are partisan or interested, it hasto be very careful in weighing such evidence. Whether or notthere are discrepancies in the evidence; whether or not the evidencestrikes the Court as genuine; whether or not the story disclosedby the evidence is probable, are all matters which must be takenBinto account.

But it would, we think, be unreasonable to contend that evidencegiven by witnesses should be discarded only on the ground that itis evidence of partisan or interested witnesses. Often enough,where factions prevail in villages and murders are committed as aCresult of enmity between such factions, criminal Courts have todeal with evidence of a partisan type.

The mechanical rejection of such evidence on the sole groundthat it is partisan would invariably lead to failure of justice”.

D26. There is no proposition in law that relatives are to be treatedas untruthful witnesses. On the contrary, reason has to be shown whena plea of partiality is raised to show that the witnesses had reason toshield actual culprit and falsely implicate the accused [See :HarbansKaur& Anr. v. State of Haryana, 2005CriLJ2199].E27. If the evidence of an eyewitness, though a close relative ofthe victim, inspires confidence, it must be relied upon without seekingcorroboration withminute material particulars. It is no doubt true that theCourts must be cautious while considering the evidence of interestedwitnesses. In his evidence, the description of the incident by PW9 clearlyportrays the way in which the accused attacked the deceased causingFfatal head injury as propounded by the prosecution. The testimony of thefather of deceased (PW9) must be appreciated in the background of theentire case.

28. In our opinion, the testimony of PW9 inspires confidence, andthe chain of events and the circumstantial evidence thereof completelyGsupportshis statements which in turn strengthens the prosecution casewith no manner of doubt. We have no hesitation to believe that PW9 isa ‘natural’ witness to the incident. On a careful scrutiny, we find hisevidence to be intrinsically reliable and wholly trustworthy.

29. The argument that the evidence of PW9 cannot be weighedHwith as he was walking one meter ahead of the deceased at the time of incident and he cannot say that it was accused who hit the deceasedwith iron rod, does not sound correct and it cannot be given any weightconsidering the circumstance as a whole. It was also contested that theeyewitness did not suffer any injury. It is not necessary that to prove anoffence, every eyewitness who had seen the accused hitting the victimshould also receive injuries. Such contentions are meritless and do notfall for consideration.

30. When analyzing the evidence available on record, Court shouldnot adopt hyper technical approach but should look at the broaderprobabilities of the case. Basing on the minor contradictions, the Courtshould not reject the evidence in its entirety. Sometimes, even in theevidence of truthful witness, there may appear certain contradictionsbasing on their capacity to remember and reproduce the minute details.Particularly in the criminal cases, from the date of incident till the daythey give evidence in the Court, there may be gap of years. Hence theCourts have to take all these aspects into consideration and weigh theevidence. The discrepancies and contradictions which do not go to theroot of the matter, credence shall not be given to them. In any event, theparamount consideration of the Court must be to do substantial justice.We feel that the trial Court has adopted an hyper technical approachwhich resulted in the acquittal of the accused.

31. The learned counsel strenuously submitted that in an appealagainst acquittal, the scope of interference by the appellate Court isvery narrow and the High Court erred in interfering with the wellconsidered judgment of acquittal. It is appropriate to refer Padam Singhv. State of U.P.,(2000) 1 SCC 621, in which while explaining the duty ofthe appellate court, this Court has expressed thus:

“It is the duty of an appellate Court to look into the evidenceadduced in the case and arrive at an independent conclusion as towhether the said evidence can be relied upon or not and even if itcan be relied upon, then whether the prosecution can be said tohave been proved beyond reasonable doubt on the said evidence.The credibility of a witness has to be adjudged by the appellatecourt in drawing inference from proved and admitted facts. Itmust be remembered that the appellate court, like the trial court,has to be satisfied affirmatively that the prosecution case issubstantially true and the guilt of the accused has been provedbeyond all reasonable doubt as the presumption of innocence with AB

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Awhich the accused starts, continues right through until he is heldguilty by the final Court of Appeal and that presumption is neitherstrengthened by an acquittal nor weakened by a conviction in thetrial court.

32. The power of the appellate Court in an appeal against acquittalBis the same as that of an appeal against conviction. But, in an appealagainst acquittal, the Court has to bear in mind that the presumption ofinnocence is in favour of the accused and it is strengthened by the orderof acquittal. At the same time, appellate Court will not interfere with theorder of acquittal mainly because two views are possible, but only whenthe High Court feels that the appreciation of evidence is based onCerroneous considerations and when there is manifest illegality in theconclusion arrived at by the trial Court. In the present case, there wasmanifest irregularity in the appreciation of evidence by the trial Court.TheHigh Court based on sound principles of criminal jurisprudence, hasinterfered with the judgment of acquittal passed by the trial Court andDconvicted the accused as the prosecution was successful in proving theguilt of the accused beyond reasonable doubt.

33. In view of the foregoing discussion and a conspectus of all thematerial would pave way to conclude that the prosecution has provedthe case beyond reasonable doubt and the appeal preferred by theEaccused is bereft of any substance and accordingly dismissed.

Ankit Gyan

Appeal dismissed.

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