Baitullah & Anr. Vs. State of U.P.
EmailAppeal: Criminal Appeal No.379 of 1995
(From the Judgment and Order dated 20.12.94 of the Allahabad High Court in Government Appeal No. 977 of 1980)
(From the Judgment and Order dated 20.12.94 of the Allahabad High Court in Government Appeal No. 977 of 1980)
Petitioner: Baitullah & Anr.
Respondent: State of U.P.
Apeal: Criminal Appeal No.379 of 1995
(From the Judgment and Order dated 20.12.94 of the Allahabad High Court in Government Appeal No. 977 of 1980)
(From the Judgment and Order dated 20.12.94 of the Allahabad High Court in Government Appeal No. 977 of 1980)
Judges: M.M. PUNCHHI & K. VENKATASWAMI, JJ.
Date of Judgment: Oct 17, 1997
Appearances:
Mr. U.P. Laliy, Senior Advocate. for Devendra Singh, Advocate with him for the Appellants.
Mr. G.K. Mathur, Senior Advocate and Mr. A.S. Pundir, Advocate with him for the Respondent.
Head Note:
CRIMINAL LAW
Indian Penal Code
Section 302/149-147,148 – Trial court had found that two deceased were murdered in the manner alleged by the prosecution – Held where murderous assault is established by clear ocular evidence, motive pales into insignificance – Eye witness evidence supported by medical report – Plea of self defence held to have been rightly rejected by High Court considering nature of inju-ries – Evidence of eye-witnesses cannot be brushed aside merely because they are related/interested – Appeal dismissed.
Indian Penal Code
Section 302/149-147,148 – Trial court had found that two deceased were murdered in the manner alleged by the prosecution – Held where murderous assault is established by clear ocular evidence, motive pales into insignificance – Eye witness evidence supported by medical report – Plea of self defence held to have been rightly rejected by High Court considering nature of inju-ries – Evidence of eye-witnesses cannot be brushed aside merely because they are related/interested – Appeal dismissed.
Held:
We have considered the submissions made at the bar and have carefully gone through the judgments of both the courts below and also the evidence and other materials placed before us. We have noticed earlier that the Trial Court gave a finding to the effect that the prosecution has fully established that the two deceased were murdered on the date, time and place and in the manner alleged by the prosecution. This finding was on the basis of the stand taken by the counsel for the defence. Bearing this in mind we proceed further. It is an admitted fact that Abdulas (A-2) caused spear blow in the vital part of Nisar Ahmad, which result-ed in his instantaneous death. The nature of the injury caused by the weapon used on the vital part of the body, be it noted against an unarmed person negates any just plea for right to self defence. Here we have to point out that it is very well estab-lished by a catena of cases of this Court that when the occur-rence was spoken to by eye-witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. In other words, where a murderous assault has been established by clear ocular evi-dence, motive pales into insignificance as rightly found by the High Court. We do not find any circumstance which would come to the aid of Abdulas to get out of the conviction awarded by the High Court. The High Court in its well reasoned and considered judgment has accepted the appeal only against three accused out of seven.
Coming to accused No.7 (Baitullah), we find from the records that he has admitted that he wielded the spear but, according to him, in self-defence. As pointed out by the High Court, the question of self-defence in this case may not arise when the deceased as well as PWs.2 to 4, who were near the scene of occur-rence, were totally unarmed. Therefore, the High Court was right in rejecting the plea of self-defence. Here again, the nature of injury inflicted on deceased Nabi Rasool, who has also given a statement while alive which has been referred to by the High Court, speak against the defence taken by the accused. As a matter of fact, we have seen that PW.2 has spoken in his evi-dence that certain witnesses cited by the prosecution could not be examined as they were won over by the accused. Moreover, there is nothing in the cross-examination of PWs.2 to 4 seriously to discard their version about the occurrence. The High Court has rightly pointed out that merely because the witnesses are interested/related, their evidence cannot be brushed aside as it is normally expected that they will not leave out the real cul-prits and rope in the innocent persons. (Para 20)
Cases Reffered:
1. Arjun & Ors. v. State of Rajasthan JT 1994 (5) SC 410 = (1994 Supp (3) SCC 189) (Para 21)
JUDGEMENT:
K.VENKATAWAMI, J.:
1. This appeal is preferred under Section 379 of the Code of Criminal Procedure in connection with a double murder which took place at about 10.00 a.m. on 26.4.79. Seven accused, namely, Sirajul Haq, Abdulas, Anwar Ali, Zainul Abdin, Yunus, Haroon and Baitullah, were charged under Section 147, 148, 302 read with Section 149, I.P.C. The case of the prosecution as culled out from the paper book is as follows:-
2. On the fateful day the deceased Nabi Rasool, brother of Informant in the case and another deceased Nisar Ahmad, cousin of the informant, were going from east to west in Chhithi village within Mahuli Police Station, Basti District. When all the accused were concealing their presence behind a Masjid, which was on the eastern side of the house of Sirajul Haq accused. As soon as both the deceased reached near the Masjid, Accused 1, 3 and 4 gave a lalkara to kill the accused. On this, the deceased raised alarms and ran towards the north of the Masjid. At that time PWs.2,3 and 4, who were sitting at the door of one Abdul Rashid, ran towards them. In the meantime, A-2 dealt a spear blow on the chest of Nisar Ahmad. On account of that, he fell down in the field of Mujibullah and died instantaneously. Accused 5 to 7 surrounded Nabi Rasool and caused spear injuries to him. Nabi Rasool ran with the injuries on his body and fell down in the room of one Mohd.Hussain. He was taken later on to the Hospital where he died at 7.10 p.m. on 26.4.79. When PWs. 2 to 4 and others rushed to save the victim the accused made good their escape.
3. After the incident, PW.2, Informant, gave a Report and the FIR was lodged on the same day at 11.00 a.m. on the basis of the written report given by the Informant. PW.6, a Sub-Inspector, reached the place of occurrence at 11.45 a.m. and prepared an Inquest Report and the dead body of Nisar Ahmad was sent to the mortuary. Thereafter, he examined the prosecution witnesses. On their pointing out he prepared a site plan in respect of the place of occurrence, recovered blood stained and ordinary earth from the place of occurrence and a recovery memo was prepared in respect thereof.
4. PW.1, the Doctor who conducted the post-mortem of the de-ceased Nisar Ahmad, found the following ante-mortem injury:
5. The Doctor was of the opinion that the death of Nisar Ahmad was due to shock and haemorrhage as a result of ante-mortem injury. One Dr.Avinash Chandra examined the injuries inflicted on by Nabi Rasool and found the following injuries on the body of Nabi Rasool when he was brought to the Hospital:-
6. According to the Doctor, Injury Nos.1 and 3 were caused by sharp-edged point weapon and they were fresh at the time of examination. After the death of Nabi Rasool, PW.1 conducted the post-mortem of deceased Nabi Rasool and he gave his report as follows:-
7. All the accused pleaded not guilty and claimed trial. At the trial the prosecution examined seven witnesses. Out of them PWs.2 to 4 were eye-witnesses. On the side of the defence, two Doctors were examined as DWs.1 and 2 to speak out about the injuries found on the body of accused Haroon.
8. PWs. 2,3 and 4 deposed stating that Abdulas (A-2) gave a spear blow to Nisar Ahmad in his chest as a result of which he fell down and died instantaneously. They also spoke about the role played by accused Haroon, Baitullah and Yunus stating that they seized Nabi Rasool and gave spear blows to him. In the light of the consistent evidence given by PWs. 2,3 and 4, the learned counsel for the defence appears to have accepted the fact that the two deceased were injured on the date, time and place and also in the manner alleged by the prosecution. In fact, the Trial Court observed as follows:-
9. On the basis of the above, the Trial Court gave the follow-ing finding:-
10. Nevertheless, the Trial Court acquitted all the seven ac-cused mainly on the ground that the motive suggested for the occurrence has not been established, that PWs. 2 to 4 cannot be believed for convicting the accused as their presence in the scene of occurrence cannot be implicitly believed and they are all interested witnesses. In addition to the above, the Trial Court also accepted the case of the defence that they caused the injuries to the deceased in exercise of their right to self defence. The Trial Court on the issue of private defence held as follows:-
11. On the basis of this finding, the Trial Court acquitted all the accused.
12. On appeal by the State, the Trial Court admitted the appeal only against three accused, namely, A-2 (Abdulas), A-6 (Haroon) and A-7 (Baitullah).
13. The High Court on a thorough reconsideration of the case and appreciating afresh the evidence both oral and documentary, differed from the findings given by the Trial Court.
14. On the question of motive disagreeing with the learned Sessions Judge, the High Court found that the complainant party filed a suit against the accused Haroon for injunction to re-strain the accused Haroon from proceeding with the illegal con-struction on the land of Sarakat. Despite the stay ordered by the Trial Court, constructions were going on and the Police had to be summoned in this connection. Therefore, the High Court found that it cannot be said that the accused party had no immediate motive for commission of the offence. In any case, the High Court also found that when there is a direct evidence of eye-witness against the accused the question of motive would pale into insignificance.
15. Regarding the presence of PWs.2 to 4 at the scene of occur-rence differing from the Trial Court, the High Court found that there was no inconsistency in the statements of witnesses in respect of their presence at the house of Rashid and after care-fully and closely examining the testimony of the witnesses on this point, the High Court found “we feel that the evidence of the witnesses does not suffer from any inconsistency in respect of the place where they were sitting at the time of incident and the place from where they saw the incident though it could not be alleged that they were near the spot.” On the aspect of interested witnesses, the High Court rightly observed that even if it is assumed that the witnesses were interested, their evi-dence could not be discarded on that ground alone as they would be the last persons to implicate the accused persons falsely permitting the real culprits to go scot free. The High Court held that the learned Sessions Judge was not justified in reject-ing the evidence of eye-witnesses on the ground that two out of them were inter se related and the third one was inimical to the accused.
16. Coming to the self-defence set up by the accused on the basis of injuries found on the body of the accused Haroon, the High Court found on an analysis of the evidence that nobody on the side of the deceased including witnesses had any weapon or lathi at the time of incident and they had not caused any injury to accused Haroon. The High Court also observed “that none of those two accused Haroon and Baitullah stated where from they got the spears and used them in self-defence. In case they had alrea-dy spears and were searching for their prey and they inflicted injuries, according to the High Court, there was no reason to discard the prosecution version that the two accused, namely, Haroon and Baitullah, were already armed with spears and they used them during the incident. The High Court also found that the injury found on the body of Haroon as spoken to by the prose-cution witnesses might have been caused while using the spears by the accused themselves against the deceased. Ultimately, the High Court concluded thus:-
17. It is under these circumstances the present appeal was preferred under Section 379, Cr.P.C.
18. Mr.Lalit, learned senior counsel, brought to our notice that pending this appeal accused No.6 (Haroon) died. Hence, the appeal is prosecuted only by the remaining two accused, namely, Abdulas and Baitullah. Mr.Lalit contended that the motive sug-gested by the prosecution has not been established as rightly found by the Trial Court. The occurrence, admittedly, took place during broad day light at about 10.00 a.m. and admittedly, apart from PWs.2 to 4, a number of other persons have seen the occur-rence, but no other independent witness came forward to give evidence supporting the prosecution. One of the accused Anwar Ali (A-3) pleaded alibi and he was acquitted and, therefore, the evidence of PWs. 2 to 4 cannot be believed and the Trial Court rightly discarded their evidence. According to the learned counsel, the acquittal by the Trial Court was based on a large number of circumstances and the High Court was not justified in reversing the acquittal and convicting the appellants.
19. Mr.Mathur, the learned senior counsel appearing for the respondent, submitted that the High Court has jurisdiction to reappreciate the evidence and the reasonings given by it for differing from the Trial Court are well founded and they do not call for any interference by this Court.
20. We have considered the submissions made at the bar and have carefully gone through the judgments of both the courts below and also the evidence and other materials placed before us. We have noticed earlier that the Trial Court gave a finding to the effect that the prosecution has fully established that the two deceased were murdered on the date, time and place and in the manner alleged by the prosecution. This finding was on the basis of the stand taken by the counsel for the defence. Bearing this in mind we proceed further. It is an admitted fact that Abdulas (A-2) caused spear blow in the vital part of Nisar Ahmad, which result-ed in his instantaneous death. The nature of the injury caused by the weapon used on the vital part of the body, be it noted against an unarmed person negates any just plea for right to self defence. Here we have to point out that it is very well estab-lished by a catena of cases of this Court that when the occur-rence was spoken to by eye-witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. In other words, where a murderous assault has been established by clear ocular evi-dence, motive pales into insignificance as rightly found by the High Court. We do not find any circumstance which would come to the aid of Abdulas to get out of the conviction awarded by the High Court. The High Court in its well reasoned and considered judgment has accepted the appeal only against three accused out of seven. Coming to accused No.7 (Baitullah), we find from the records that he has admitted that he wielded the spear but, according to him, in self-defence. As pointed out by the High Court, the question of self-defence in this case may not arise when the deceased as well as PWs.2 to 4, who were near the scene of occurrence, were totally unarmed. Therefore, the High Court was right in rejecting the plea of self-defence. Here again, the nature of injury inflicted on deceased Nabi Rasool, who has also given a statement while alive which has been referred to by the High Court, speak against the defence taken by the accused. As a matter of fact, we have seen that PW.2 has spoken in his evi-dence that certain witnesses cited by the prosecution could not be examined as they were won over by the accused. Moreover, there is nothing in the cross-examination of PWs.2 to 4 seriously to discard their version about the occurrence. The High Court has rightly pointed out that merely because the witnesses are interested/related, their evidence cannot be brushed aside as it is normally expected that they will not leave out the real cul-prits and rope in the innocent persons.
21. This Court in Arjun & Ors. vs. State of Rajasthan JT 1994 (5) SC 410 = (1994 Supp (3) SCC 189) while considering the con-tention about the reliability of interested and inimical evi-dence, observed thus:-
22. After considering carefully the judgments of the courts below and the relevant documents, we do not find any infirmity in the judgment of the High Court warranting interference by this Court. Accordingly, the appeal is dismissed.
1. This appeal is preferred under Section 379 of the Code of Criminal Procedure in connection with a double murder which took place at about 10.00 a.m. on 26.4.79. Seven accused, namely, Sirajul Haq, Abdulas, Anwar Ali, Zainul Abdin, Yunus, Haroon and Baitullah, were charged under Section 147, 148, 302 read with Section 149, I.P.C. The case of the prosecution as culled out from the paper book is as follows:-
2. On the fateful day the deceased Nabi Rasool, brother of Informant in the case and another deceased Nisar Ahmad, cousin of the informant, were going from east to west in Chhithi village within Mahuli Police Station, Basti District. When all the accused were concealing their presence behind a Masjid, which was on the eastern side of the house of Sirajul Haq accused. As soon as both the deceased reached near the Masjid, Accused 1, 3 and 4 gave a lalkara to kill the accused. On this, the deceased raised alarms and ran towards the north of the Masjid. At that time PWs.2,3 and 4, who were sitting at the door of one Abdul Rashid, ran towards them. In the meantime, A-2 dealt a spear blow on the chest of Nisar Ahmad. On account of that, he fell down in the field of Mujibullah and died instantaneously. Accused 5 to 7 surrounded Nabi Rasool and caused spear injuries to him. Nabi Rasool ran with the injuries on his body and fell down in the room of one Mohd.Hussain. He was taken later on to the Hospital where he died at 7.10 p.m. on 26.4.79. When PWs. 2 to 4 and others rushed to save the victim the accused made good their escape.
3. After the incident, PW.2, Informant, gave a Report and the FIR was lodged on the same day at 11.00 a.m. on the basis of the written report given by the Informant. PW.6, a Sub-Inspector, reached the place of occurrence at 11.45 a.m. and prepared an Inquest Report and the dead body of Nisar Ahmad was sent to the mortuary. Thereafter, he examined the prosecution witnesses. On their pointing out he prepared a site plan in respect of the place of occurrence, recovered blood stained and ordinary earth from the place of occurrence and a recovery memo was prepared in respect thereof.
4. PW.1, the Doctor who conducted the post-mortem of the de-ceased Nisar Ahmad, found the following ante-mortem injury:
5. The Doctor was of the opinion that the death of Nisar Ahmad was due to shock and haemorrhage as a result of ante-mortem injury. One Dr.Avinash Chandra examined the injuries inflicted on by Nabi Rasool and found the following injuries on the body of Nabi Rasool when he was brought to the Hospital:-
6. According to the Doctor, Injury Nos.1 and 3 were caused by sharp-edged point weapon and they were fresh at the time of examination. After the death of Nabi Rasool, PW.1 conducted the post-mortem of deceased Nabi Rasool and he gave his report as follows:-
7. All the accused pleaded not guilty and claimed trial. At the trial the prosecution examined seven witnesses. Out of them PWs.2 to 4 were eye-witnesses. On the side of the defence, two Doctors were examined as DWs.1 and 2 to speak out about the injuries found on the body of accused Haroon.
8. PWs. 2,3 and 4 deposed stating that Abdulas (A-2) gave a spear blow to Nisar Ahmad in his chest as a result of which he fell down and died instantaneously. They also spoke about the role played by accused Haroon, Baitullah and Yunus stating that they seized Nabi Rasool and gave spear blows to him. In the light of the consistent evidence given by PWs. 2,3 and 4, the learned counsel for the defence appears to have accepted the fact that the two deceased were injured on the date, time and place and also in the manner alleged by the prosecution. In fact, the Trial Court observed as follows:-
9. On the basis of the above, the Trial Court gave the follow-ing finding:-
10. Nevertheless, the Trial Court acquitted all the seven ac-cused mainly on the ground that the motive suggested for the occurrence has not been established, that PWs. 2 to 4 cannot be believed for convicting the accused as their presence in the scene of occurrence cannot be implicitly believed and they are all interested witnesses. In addition to the above, the Trial Court also accepted the case of the defence that they caused the injuries to the deceased in exercise of their right to self defence. The Trial Court on the issue of private defence held as follows:-
11. On the basis of this finding, the Trial Court acquitted all the accused.
12. On appeal by the State, the Trial Court admitted the appeal only against three accused, namely, A-2 (Abdulas), A-6 (Haroon) and A-7 (Baitullah).
13. The High Court on a thorough reconsideration of the case and appreciating afresh the evidence both oral and documentary, differed from the findings given by the Trial Court.
14. On the question of motive disagreeing with the learned Sessions Judge, the High Court found that the complainant party filed a suit against the accused Haroon for injunction to re-strain the accused Haroon from proceeding with the illegal con-struction on the land of Sarakat. Despite the stay ordered by the Trial Court, constructions were going on and the Police had to be summoned in this connection. Therefore, the High Court found that it cannot be said that the accused party had no immediate motive for commission of the offence. In any case, the High Court also found that when there is a direct evidence of eye-witness against the accused the question of motive would pale into insignificance.
15. Regarding the presence of PWs.2 to 4 at the scene of occur-rence differing from the Trial Court, the High Court found that there was no inconsistency in the statements of witnesses in respect of their presence at the house of Rashid and after care-fully and closely examining the testimony of the witnesses on this point, the High Court found “we feel that the evidence of the witnesses does not suffer from any inconsistency in respect of the place where they were sitting at the time of incident and the place from where they saw the incident though it could not be alleged that they were near the spot.” On the aspect of interested witnesses, the High Court rightly observed that even if it is assumed that the witnesses were interested, their evi-dence could not be discarded on that ground alone as they would be the last persons to implicate the accused persons falsely permitting the real culprits to go scot free. The High Court held that the learned Sessions Judge was not justified in reject-ing the evidence of eye-witnesses on the ground that two out of them were inter se related and the third one was inimical to the accused.
16. Coming to the self-defence set up by the accused on the basis of injuries found on the body of the accused Haroon, the High Court found on an analysis of the evidence that nobody on the side of the deceased including witnesses had any weapon or lathi at the time of incident and they had not caused any injury to accused Haroon. The High Court also observed “that none of those two accused Haroon and Baitullah stated where from they got the spears and used them in self-defence. In case they had alrea-dy spears and were searching for their prey and they inflicted injuries, according to the High Court, there was no reason to discard the prosecution version that the two accused, namely, Haroon and Baitullah, were already armed with spears and they used them during the incident. The High Court also found that the injury found on the body of Haroon as spoken to by the prose-cution witnesses might have been caused while using the spears by the accused themselves against the deceased. Ultimately, the High Court concluded thus:-
17. It is under these circumstances the present appeal was preferred under Section 379, Cr.P.C.
18. Mr.Lalit, learned senior counsel, brought to our notice that pending this appeal accused No.6 (Haroon) died. Hence, the appeal is prosecuted only by the remaining two accused, namely, Abdulas and Baitullah. Mr.Lalit contended that the motive sug-gested by the prosecution has not been established as rightly found by the Trial Court. The occurrence, admittedly, took place during broad day light at about 10.00 a.m. and admittedly, apart from PWs.2 to 4, a number of other persons have seen the occur-rence, but no other independent witness came forward to give evidence supporting the prosecution. One of the accused Anwar Ali (A-3) pleaded alibi and he was acquitted and, therefore, the evidence of PWs. 2 to 4 cannot be believed and the Trial Court rightly discarded their evidence. According to the learned counsel, the acquittal by the Trial Court was based on a large number of circumstances and the High Court was not justified in reversing the acquittal and convicting the appellants.
19. Mr.Mathur, the learned senior counsel appearing for the respondent, submitted that the High Court has jurisdiction to reappreciate the evidence and the reasonings given by it for differing from the Trial Court are well founded and they do not call for any interference by this Court.
20. We have considered the submissions made at the bar and have carefully gone through the judgments of both the courts below and also the evidence and other materials placed before us. We have noticed earlier that the Trial Court gave a finding to the effect that the prosecution has fully established that the two deceased were murdered on the date, time and place and in the manner alleged by the prosecution. This finding was on the basis of the stand taken by the counsel for the defence. Bearing this in mind we proceed further. It is an admitted fact that Abdulas (A-2) caused spear blow in the vital part of Nisar Ahmad, which result-ed in his instantaneous death. The nature of the injury caused by the weapon used on the vital part of the body, be it noted against an unarmed person negates any just plea for right to self defence. Here we have to point out that it is very well estab-lished by a catena of cases of this Court that when the occur-rence was spoken to by eye-witness and the same was supported by Medical Report, it will not be necessary to investigate the motive behind such commission of offence. In other words, where a murderous assault has been established by clear ocular evi-dence, motive pales into insignificance as rightly found by the High Court. We do not find any circumstance which would come to the aid of Abdulas to get out of the conviction awarded by the High Court. The High Court in its well reasoned and considered judgment has accepted the appeal only against three accused out of seven. Coming to accused No.7 (Baitullah), we find from the records that he has admitted that he wielded the spear but, according to him, in self-defence. As pointed out by the High Court, the question of self-defence in this case may not arise when the deceased as well as PWs.2 to 4, who were near the scene of occurrence, were totally unarmed. Therefore, the High Court was right in rejecting the plea of self-defence. Here again, the nature of injury inflicted on deceased Nabi Rasool, who has also given a statement while alive which has been referred to by the High Court, speak against the defence taken by the accused. As a matter of fact, we have seen that PW.2 has spoken in his evi-dence that certain witnesses cited by the prosecution could not be examined as they were won over by the accused. Moreover, there is nothing in the cross-examination of PWs.2 to 4 seriously to discard their version about the occurrence. The High Court has rightly pointed out that merely because the witnesses are interested/related, their evidence cannot be brushed aside as it is normally expected that they will not leave out the real cul-prits and rope in the innocent persons.
21. This Court in Arjun & Ors. vs. State of Rajasthan JT 1994 (5) SC 410 = (1994 Supp (3) SCC 189) while considering the con-tention about the reliability of interested and inimical evi-dence, observed thus:-
22. After considering carefully the judgments of the courts below and the relevant documents, we do not find any infirmity in the judgment of the High Court warranting interference by this Court. Accordingly, the appeal is dismissed.
