Kayed Ali Vs. Moizuddin & Ors.
EmailAppeal: Criminal Appeal No. 1899 of 1996
Petitioner: Kayed Ali
Respondent: Moizuddin & Ors.
Apeal: Criminal Appeal No. 1899 of 1996
Judges: S. SAGHIR AHMED & DORAISWAMY RAJU, JJ.
Date of Judgment: Apr 04, 2000
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302 – Murder – Conviction by trial court – On appeal High Court acquitting the accused on the ground that the identity of the accused had not been established – Validity. Held it was a case where identity of the accused was not involved. The offence of killing of two persons in day light having been witnessed by four persons who specified by name the accused persons. There was no question for establishing the identity of accused in trial. High Court’s order being perverse held unsustainable. Matter remanded for fresh disposal.
(Para 6)
JUDGEMENT:
ORDER
1. This appeal is directed against the judgment and order passed by the Gauhati High Court which has acquitted the Respondents from the charge under Section 302 IPC etc. It is contended that the appeal of the Respondents who were convicted by the trial court, has been allowed by the High Court on a question which did not arise. It is contended that the judgment of the High Court is perverse.
2. The occurrence in question took place on 15.2.1986 at about 5.00 P.M. when the informant Kayed Ali (P.W. 2) was dragged out of his house by Kalim Uddin and some other Respondents herein and taken to his field where he was asked to identify the boundaries of the field, which he could not tell and said that the bounda-ries could be pointed out only by his father or grand-father. It was at this stage that Moizuddin (Respondent No. 1) assaulted him with a lathi while Azimuddin (Respondent No. 7) inflicted injury on his abdomen. His mother Molicha Bibi came running to the spot and pleaded with them not to assault her son but she, too, was assaulted. While Moizuddin assaulted Molicha Bibi with lathi, Azimuddin gave a spear blow on the abdomen of Molicha Bibi. Another blow was given to Mongla Mia who was the uncle of the informant. When he fell down, he was assaulted by Respondent Nos. 4 & 6.
3. F.I.R. of this incident was lodged on the next day on 16.2.1986 at 9.00 A.M. at Police Station Barpeta. In the FIR, 17 persons were named but a chargesheet, after due investigation, was submitted against 15 persons who were tried for offences under Sections 148, 302/149, 323/149 and 324/149 as Molicha Bibi and Mongla Mia had, in the meantime, succumbed to their injuries. The Sessions Judge convicted seven persons and acquitted rest of the accused. Those seven persons who are the Respondents here had filed an appeal in the High Court which was allowed by the im-pugned judgment and all of them have been acquitted on the only ground that the identity of the Respondents had not been proved or established. The High Court observed that although the incid-ent was said to have been witnessed by four persons, namely, P.W. 1, P.W. 2, P.W. 6 and P.W. 7, it would not discuss their evidence in detail inasmuch as the case could be disposed of on the funda-mental question relating to the identity of the accused. The High Court observed as under :
“………… It must be mentioned herein that there were as many as 15 accused. In the FIR itself 17 accused were mentioned. It was further stated in the FIR that many others were involved in the crime. In the FIR only the names of the various accused have been mentioned but their place of residence have not been men-tioned. In the trial court also each and every accused was not identified in the manner as required to be done. PW-2 also did not make any statement in his deposition as to the identification of the accused. No attempt was made on behalf of the prosecution to identify each and every accused. He is the author of the FIR. In the FIR a long list of the alleged perpetrators of the crime was appended. Nothing has been stated in the FIR as to the iden-tity of the accused. Equally there is even not a single whisper in the evidence of the PWs 1, 2, 6 and 7 as to the names of the parents of the Appellants and the other actual perpetrators of the crime of their place of residence. True, all these witnesses attributed various overt acts to various persons having the names similar to those of the accused and the Appellants. But nothing has been mentioned as to the names of the parents of the Appell-ants or the place of their residence. No attempt has been made on behalf of the prosecution to ask these eye-witnesses to identify each of the accused or Appellants in the dock by name and face.
In the world there may be thousands of persons having same name. Therefore, identification of the offenders is most import-ant in a criminal trial. Therefore, it is not sufficient on the part of the prosecution to get statements through the witnesses that certain persons having names similar to those of the accused committed the crimes in question. They are to be identified only by face in the dock in course of the trial provided the miscre-ants are known to the witnesses.
In the absence of any such evidence of identification, it is impossible on our part to sustain the conviction of the Appell-ants. We, have also considered as to whether the case can be re-manded back to the trial court on the question of identification of the offenders. But after passage of such a long time such attempt would be absolutely farce and mockery.”
4. We are surprised at the approach of the High Court, which has gone by the question of identification in a case where identifi-cation is not involved. All the Respondents before us were named in the FIR along with others and they themselves did not chal-lenge their identity nor was any question about identity of the accused put to any of the eye-witnesses when they gave their statement as a witness on oath specifying the role of the Re-spondents in the incident in question. In this incident, the mother and uncle of the complainant as also the complainant were assaulted. The complainant’s mother and uncle succumbed to the injuries sustained by them.
5. The judgment of acquittal is normally not interfered with, much less at the instance of the complainant. But where the judgment is wholly perverse and based on principles unknown to criminal law, it has to be set aside unhesitatingly.
6. In the instant case, as pointed out earlier, the question of identity of the accused was not involved. It was a case where two persons lost their lives and the whole incident was witnessed by four persons who were examined in the court and who specified the accused by their names and also narrated their role in that incident. It was not a case where the incident took place in the dark of the night or that the accused had come by concealing their faces or the accused, even if their faces were not con-cealed, were unknown to the complainants or other witnesses. The accused had their field adjacent to the field of the complainant and it was a dispute of boundary which was the cause of the incident. Since the accused were known to the complainant from before they had been specifically named in the F.I.R., there was no question of their identity being established at the trial. It was a situation where the identity was not challenged by any of the accused and no question with regard to their identity was put to any of the eye-witnesses when they were in the witness box before the trial court. The High Court has proceeded on a wrong premise and has acquitted the accused on a technical plea which did not arise in the case. The judgment passed by the High Court cannot be sustained.
7. In view of the above, we allow the appeal, set aside the judgment passed by the High Court and remand the appeal to the High Court for hearing afresh and decide the case in accordance with law.
1. This appeal is directed against the judgment and order passed by the Gauhati High Court which has acquitted the Respondents from the charge under Section 302 IPC etc. It is contended that the appeal of the Respondents who were convicted by the trial court, has been allowed by the High Court on a question which did not arise. It is contended that the judgment of the High Court is perverse.
2. The occurrence in question took place on 15.2.1986 at about 5.00 P.M. when the informant Kayed Ali (P.W. 2) was dragged out of his house by Kalim Uddin and some other Respondents herein and taken to his field where he was asked to identify the boundaries of the field, which he could not tell and said that the bounda-ries could be pointed out only by his father or grand-father. It was at this stage that Moizuddin (Respondent No. 1) assaulted him with a lathi while Azimuddin (Respondent No. 7) inflicted injury on his abdomen. His mother Molicha Bibi came running to the spot and pleaded with them not to assault her son but she, too, was assaulted. While Moizuddin assaulted Molicha Bibi with lathi, Azimuddin gave a spear blow on the abdomen of Molicha Bibi. Another blow was given to Mongla Mia who was the uncle of the informant. When he fell down, he was assaulted by Respondent Nos. 4 & 6.
3. F.I.R. of this incident was lodged on the next day on 16.2.1986 at 9.00 A.M. at Police Station Barpeta. In the FIR, 17 persons were named but a chargesheet, after due investigation, was submitted against 15 persons who were tried for offences under Sections 148, 302/149, 323/149 and 324/149 as Molicha Bibi and Mongla Mia had, in the meantime, succumbed to their injuries. The Sessions Judge convicted seven persons and acquitted rest of the accused. Those seven persons who are the Respondents here had filed an appeal in the High Court which was allowed by the im-pugned judgment and all of them have been acquitted on the only ground that the identity of the Respondents had not been proved or established. The High Court observed that although the incid-ent was said to have been witnessed by four persons, namely, P.W. 1, P.W. 2, P.W. 6 and P.W. 7, it would not discuss their evidence in detail inasmuch as the case could be disposed of on the funda-mental question relating to the identity of the accused. The High Court observed as under :
“………… It must be mentioned herein that there were as many as 15 accused. In the FIR itself 17 accused were mentioned. It was further stated in the FIR that many others were involved in the crime. In the FIR only the names of the various accused have been mentioned but their place of residence have not been men-tioned. In the trial court also each and every accused was not identified in the manner as required to be done. PW-2 also did not make any statement in his deposition as to the identification of the accused. No attempt was made on behalf of the prosecution to identify each and every accused. He is the author of the FIR. In the FIR a long list of the alleged perpetrators of the crime was appended. Nothing has been stated in the FIR as to the iden-tity of the accused. Equally there is even not a single whisper in the evidence of the PWs 1, 2, 6 and 7 as to the names of the parents of the Appellants and the other actual perpetrators of the crime of their place of residence. True, all these witnesses attributed various overt acts to various persons having the names similar to those of the accused and the Appellants. But nothing has been mentioned as to the names of the parents of the Appell-ants or the place of their residence. No attempt has been made on behalf of the prosecution to ask these eye-witnesses to identify each of the accused or Appellants in the dock by name and face.
In the world there may be thousands of persons having same name. Therefore, identification of the offenders is most import-ant in a criminal trial. Therefore, it is not sufficient on the part of the prosecution to get statements through the witnesses that certain persons having names similar to those of the accused committed the crimes in question. They are to be identified only by face in the dock in course of the trial provided the miscre-ants are known to the witnesses.
In the absence of any such evidence of identification, it is impossible on our part to sustain the conviction of the Appell-ants. We, have also considered as to whether the case can be re-manded back to the trial court on the question of identification of the offenders. But after passage of such a long time such attempt would be absolutely farce and mockery.”
4. We are surprised at the approach of the High Court, which has gone by the question of identification in a case where identifi-cation is not involved. All the Respondents before us were named in the FIR along with others and they themselves did not chal-lenge their identity nor was any question about identity of the accused put to any of the eye-witnesses when they gave their statement as a witness on oath specifying the role of the Re-spondents in the incident in question. In this incident, the mother and uncle of the complainant as also the complainant were assaulted. The complainant’s mother and uncle succumbed to the injuries sustained by them.
5. The judgment of acquittal is normally not interfered with, much less at the instance of the complainant. But where the judgment is wholly perverse and based on principles unknown to criminal law, it has to be set aside unhesitatingly.
6. In the instant case, as pointed out earlier, the question of identity of the accused was not involved. It was a case where two persons lost their lives and the whole incident was witnessed by four persons who were examined in the court and who specified the accused by their names and also narrated their role in that incident. It was not a case where the incident took place in the dark of the night or that the accused had come by concealing their faces or the accused, even if their faces were not con-cealed, were unknown to the complainants or other witnesses. The accused had their field adjacent to the field of the complainant and it was a dispute of boundary which was the cause of the incident. Since the accused were known to the complainant from before they had been specifically named in the F.I.R., there was no question of their identity being established at the trial. It was a situation where the identity was not challenged by any of the accused and no question with regard to their identity was put to any of the eye-witnesses when they were in the witness box before the trial court. The High Court has proceeded on a wrong premise and has acquitted the accused on a technical plea which did not arise in the case. The judgment passed by the High Court cannot be sustained.
7. In view of the above, we allow the appeal, set aside the judgment passed by the High Court and remand the appeal to the High Court for hearing afresh and decide the case in accordance with law.
