Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.119 of 2013
Noushad @ Noushad Pasha and Others ….
Appellants
VERSUS
State of Karnataka
….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal, at the instance of accused Nos.1 to 3 is directed
JUDGMENT
against the judgment of the Division Bench of the High Court of
Karnataka at Bangalore in Criminal Appeal No.787 of 2007 dated
01.03.2012 by which conviction and sentence imposed on the
Appellants for offences under Sections 143, 147, 148, 448 and 302,
Indian Penal Code (IPC) read with Section 149 of IPC was confirmed.
2. The case of the prosecution was that the accused along with
40 others formed themselves into an unlawful assembly with the
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common object of committing murder of the complainant Mahadeva
(PW-11) and the deceased Lingaraju apart from committing other
offences. It was alleged that with the above common object of such
assembly, they also hatched a criminal conspiracy prior to 3 p.m. on
13.02.1999 and all the accused went to the shop of the deceased
and the complainant, committed trespass armed with deadly
weapons like swords, choppers, longs, clubs etc., with an intention
to kill them and intentionally committed the murder of deceased
Lingaraju by assaulting him all over his body with the use of deadly
weapons possessed by them and that when the deceased Lingaraju
in his injured condition tried to escape and run away towards the
police station, he was further assaulted by the accused by chasing
him down. The deceased Lingaraju ultimately fell down with multiple
severe injuries in front of Surya Prabha Hardware shop. Thereafter,
the accused alleged to have run away from the scene with the
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weapons in different vehicles in different directions. When the victim
Lingaraju was immediately shifted to the Government Hospital, he
was declared dead on examination by the doctors.
3. Exhibit P-18 was the complaint which was lodged at 3.30 pm,
while the occurrence was stated to have happened at 3 p.m. on
13.02.1999. Altogether 44 accused were proceeded against. In the
course of trial, A-8 died. The trial Court convicted A-1, A-2, A-3, A-4,
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A-5 and A-29 and rest of the accused were all acquitted. The
Criminal Appeal No.787 of 2007 was preferred by the present
Appellants along with A-4, A-5 and A-29 while Criminal Appeal
No.1775 of 2007 was preferred by the State of Karnataka. By the
impugned judgment, the Division Bench of the High Court, while
confirming the conviction and sentence imposed on the Appellants,
allowed the appeal preferred by A-4, A-5 and A-29 and acquitted
them of all the charges. As many as 49 witnesses were examined on
the side of the prosecution.
4. We heard Mr. Altaf Ahmad, learned Senior Counsel for the
Appellants and Mr. Parikshit Angadi, learned counsel for the
Respondent. Mr. Altaf Ahmad, learned Senior Counsel in his
submissions stated that of the 49 witnesses, reliance was mainly
placed upon PWs-11, 14, 15, 19, 24, 30, 42, 43 and 44 out of whom
many turned hostile and quite a number of them were found to be
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chance witnesses and unreliable. PW-11 was relied upon by the
prosecution as star witness who was the complainant himself and
Exhibit P-18-complaint was lodged by him. Apart from PW-11, PWs-
19, 30 and 32 were also claimed to be eye-witnesses. The learned
Senior Counsel also submitted that no test identification parade was
held. According to him, though PW-11 was claimed to be an eye-
witness along with PWs-19, 30 and 32, there were serious
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deficiencies in their evidence and, therefore, they cannot be
accepted to have witnessed the occurrence even going by what they
have deposed before the Court. The learned Senior Counsel also
contended that going by the complaint Exhibit P-18, there were
serious contradictions as compared to the oral evidence led before
the trial Court and, therefore, the conviction of the Appellants
cannot be sustained. The learned Senior Counsel contended that
whatever reason which weighed with the Courts below for the
acquittal of the other accused equally applied to the Appellants and
consequently, they are also entitled for acquittal on the very same
reasoning.
5. The learned Senior Counsel pointed out that what weighed
with the High Court in confirming the conviction against A-1 were
the evidence of PWs-11, 19, 42 and 44, which were found to be not
trustworthy to confirm the conviction of A-4, A-5 and A-29 and in
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such circumstances, as the said evidence was mutatis mutandis
applied to A-1 also, the conviction as against A-1 could not have
been singled out for confirming the conviction. The learned Senior
Counsel pointed out that similarly in respect of A-2, the High Court
relied upon PWs-11, 14, 15, 24, 43 and 44 which again contained
very serious infirmities in order to acquit the other accused by the
trial Court and A-4, A-5 and A-29 by the High Court and
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consequently, the reliance placed upon those witnesses for
convicting A-2 was not justified. The learned Senior Counsel further
contended that the High Court relied upon PWs-11, 15, 19, 24, 30,
43 and 44 for confirming the conviction of A-3 and since the
evidence of those witnesses were not sufficient for confirming the
conviction of A-4, A-5 and A-29 and that their said evidence could
not be relied upon for the conviction of the other accused, the
confirmation of the conviction of A-3 alone by the High Court cannot
be confirmed. The learned Senior Counsel in support of his
submission took us through the contents of the complaint Exhibit
P-18, the evidence of PWs-11, 19, 30, 32, 42, 44 and the sketch
Exhibit P-55 to point out the serious discrepancies in their version
which, according to him, could not have been relied upon by any
stretch of imagination to support the conviction of the Appellants.
6. As against the above submissions, Mr. Parikshit Angadi
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submitted that the evidence of PWs-11, 15, 32 and 44 who were eye
witnesses to the incident were sufficient enough to support the case
of prosecution. The learned counsel pointed out that PW-15 was
truly an eyewitness as he was a hawker who was doing vending
business of Bananas by stationing his four wheeled pushing Gadi in
front of Anjuman complex building at Ambedkar Road opposite to
which the shop of the deceased was located. He also contended that
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PW-44, who was also doing fruit business as a hawker in his four
wheeled pushing Gadi in front of Dr. Mahadevswami Clinic on the
very same Ambedkar Road also witnessed the said incident and that
since they were regularly doing their vending business on the said
road opposite to the place of occurrence, their version was rightly
relied upon by the trial Court. The learned counsel further
contended that PW-11 was able to identify the Appellants by their
names and his complaint Exhibit P-18 was based on what he actually
witnessed at the place of occurrence and, therefore, the complicity
of the Appellants in the crime was established beyond reasonable
doubt. The learned counsel for the Respondent State, therefore,
contended that the conviction and sentence imposed on the
Appellants by the trial Court and confirmed by the High Court does
not call for any interference.
7. Having heard learned counsel for the Appellants and the
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Respondent, we wish to note the relevant provisions under which
the conviction was ordered by the trial Court in its judgment dated
21.04.2007. In its ultimate conclusion, the trial Court convicted A-1
to 5 and 29 for the offences under Sections 143, 147, 148, 448 and
302 read with Section 149, IPC. The said accused persons were
acquitted of the offences punishable under Section 120B and 153B
read with 149, IPC. The High Court in the impugned judgment
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confirmed the above said conviction of the Appellants while setting
aside the conviction relating to A-4, A-5 and A-29.
8. In the first instance, while considering the submission of
learned Counsel, we want to note the finding of the trial Court with
reference to some of the witnesses who were relied upon by the
High Court while confirming the conviction of the Appellants. Those
witnesses were PW-11, 14, 15, 19, 24, 30, 42, 43 and 44.
9. Insofar as PW-19 was concerned, when we peruse the
judgment of the trial Court, we find that in its conclusion the said
witness who was a chance witness has been held to be wholly
unreliable and unbelievable for stated reasons. In the opinion of the
trial Court, the said witness did not inspire confidence and,
therefore, it was wholly unsafe to rely upon the said witness. Having
regard to the said categoric findings of the trial Court that he was a
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chance witness and that his evidence was wholly unreliable and
unbelievable, the reliance placed upon the said witness by the High
Court for the guilt of A-2 cannot also be accepted. As far as the said
witness was concerned, the trial Court while considering his
evidence has specifically stated as under:
“therefore, the evidence of PW-19 given before the
Court by identifying A1, A3, A4 and A29 as the persons
present in the said assembly, in absence of specific
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evidence as to the carrying of or possessing deadly
weapons with them and assaulting the deceased with
the said weapons, do not appear to be reliable.”
10. After stating so, the trial Court proceeded to state as under:
“therefore, the evidence of PW-19 do not inspire any
confidence, as it appears to be weak and unbelievable
as against all accused.”
11. After arriving at the above conclusion as regards the reliability
of PW-19 in the very next passage, it proceeds to state that the
evidence of PW-19 was corroborated by the other eyewitnesses as
regards the presence and acts done in the commission of crime by
A-1, A-3, A-4, A-6 and A-29 and, therefore, though the evidence of
PW-19 was not reliable as a whole, his evidence insofar as
identifying A-1, A-3 A-4, A-6 and A-29 as the persons present in the
said assembly, was believable as corroborative evidence. It must be
noted here that for making such a sweeping and contradictory
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statement, the trial Court has not adduced any convincing and
cogent reasons to substantiate its conclusion. When we consider the
said conclusion of the trial Court, it must be stated that such a
conflicting conclusion reached by the trial Court without any strong
convincing reason will be wholly unsafe and it would be dangerous
to accept such a blank conflicting conclusion for returning the
finding of guilt. When once the trial Court finds that the evidence of
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a particular witness was unreliable and unbelievable, we fail to
understand as to how the said Court can in the same breath state
that such an unreliable and unbelievable version can be accepted as
a corroborative piece of evidence to prove their complicity in the
commission of the crime.
12. Therefore, once the trial Court arrived at the conclusion that
the evidence of PW-19 was unreliable and unbelievable, it cannot
subsequently turn around and state that such an unreliable and
unbelievable version can be supportive of the version of other
witnesses and that too without assigning any convincing reasons. It
does not appeal to any logic or reason for us to accept such a
conclusion. Therefore, that part of the analysis made by the trial
Court by which it reached the conclusion that PW-19 was an
unreliable and unbelievable witness, should go to the benefit of the
accused. In the said circumstances, the reliance placed upon by the
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High Court on PW-19 to confirm the conviction of A-1 and A-3 cannot
also be accepted.
13. Further the trial Court while referring to the evidence of PWs-
19, 24, 30 and 43 stated that all of them were chance witnesses
since they had gone to the place of incident on the date of
occurrence and time by chance in connection with their personal
work or business. Therefore, when PW-19 was a chance witness and
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in the conclusion of the trial Court he was an unreliable and
unbelievable witness, it will lead to a travesty of justice if the version
of the said witness is to be relied upon to support the guilt of A-1
and A-3.
14. When we come to the evidence of PW-24 whose version was
relied upon to support the guilt of A-2 and A-3, the trial Court while
examining his evidence stated as under:
“PW-24 specifically stated that, before giving
statement to police he had ascertained the names and
addresses of such persons known to him by face from
the radio repairer, by going to his shop and by giving
him the factual identity and their professions within
two minutes of the incident. This version of PW-24
appears to be exaggerative and therefore do not
inspire any confidence. Hence renders unreliable as
against all the accused whose names he has referred
in his statement before the police”
(underlining is ours)
JUDGMENT
15. PW-24 had referred about A-1 to A-4, A-29 and A-44. The trial
Court having analyzed his evidence had come to the above
conclusion. Admittedly, he was not knowing the names of any of the
accused persons. To support his stand that he saw A-1 to A-4, A-29
and A-44 he claimed that before giving his statement to the police,
he contacted a nearby shop owner who was also a Muslim and
through whom he ascertained the names of those individuals and
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that such ascertainment was made within a short span of two
minutes and that is how he was able to identify those accused
persons. The trial Court, under this circumstance, had rightly
concluded that such a claim of PW-24 was highly exaggerative and,
therefore, the same cannot be relied upon.
16. After reaching the above conclusion, here again the trial Court
took a contrary conclusion that his evidence as against A-1 to A-4
and A-29 was acceptable as a corroborative piece of evidence of
other eye-witnesses. Such a conclusion is diametrically opposite to
its own earlier conclusion that PW-24 was not knowing any of the
accused referred to by him on his own. The said contrary conclusion
of the trial Court is, therefore, liable to be rejected, in which event
there was no scope to rely upon the evidence of PW-24.
Consequently, the reliance placed upon PW-24 by the High Court for
confirming the conviction of A-2 and A-3 cannot be accepted.
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17. When we come to the evidence of PW-30, as stated earlier,
PW-30 was also found to be a chance witness as he had gone to the
place of incident on the date of occurrence and time by chance in
connection with his personal work or business. As regards his
evidence, after a detailed reference to his version, the trial Court
has concluded as under:
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“…….But, the said witness nowhere stated for having
seen any of the accused referred to by him in his
statement assaulting the deceased with any weapon
alleged to be possessed by him, either inside the shop of
the deceased or on the road by chasing. Therefore, the
evidence of PW-30 which is self contradictory cannot be
relied upon as a whole, except the evidence stated about
presence of accused No.3, 4 and 29 at the said place,
which is corroborated with evidence of other independent
eye witnesses…….”
18. When the said conclusion arrived at by the trial Court, relating
to PW-30 that he was a chance witness and that his version was self-
contradictory and, therefore, not reliable, his version about the
presence, in particular of A-3 with whom we are presently
concerned, cannot also be adverted to inasmuch as A-3 has
otherwise been held to have been directly involved in the
commission of the crime, namely, inflicting of injuries on the person
of the deceased Lingaraju. Such act of inflicting of injuries was
stated to be inside the shop of the accused, which was already
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surrounded by nearly 35 to 40 persons as stated by PW-11.
Therefore, there was no scope for placing any reliance upon PW-30
as well, either by the trial Court or by the High Court to confirm the
conviction of A-3.
19. The next witness which has been referred to and relied upon
by the High Court in the impugned judgment as against A-1 and A-3
was PW-43. In fact, with reference to PW-43, the conclusion of the
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trial Court as against him was highly derogatory. In paragraph 18 of
the trial Court judgment, the nature of evidence rendered by PW-43
has been mentioned and it has been observed as under:
“PW-43 also stated that he was working then in
Pandavapur and used to visit Kollegal once in a week.
Therefore, the chance of witnessing of such incident
by being present at the said place, time and date by
PW-43 appears to be doubtful and the evidence of PW-
43 given by identifying all the accused persons as the
persons and members of said group which fled away
from the said place appears to be an exaggeration,
when as admitted by said witness in cross-
examination that he had never seen any of the
accused before that day.”
(Underlining is ours)
20. When such is the caliber of the witness, namely, PW-43 and his
version relating to the occurrence, we fail to understand as to how
the High Court was able to rely upon the said witness in order to find
the guilt as against A-2 and A-3.
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21. The next witness who was relied upon by the High Court was
PW-44 as against all the three Appellants, namely, A-1 to A-3. It was
startling to note that with reference to the said witness, the trial
Court has remarked that his version was contradictory in material
aspects as against the case of the prosecution which was otherwise
claimed to be supported by the other eye-witnesses. Therefore, the
version of PW-44 was considered not trustworthy as it was
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exaggerative and wholly unbelievable. Hence, the evidence of PW-
44 in no way supported the case of the prosecution.
22. Having thus noted the version of PW-19, when we refer to the
evidence of PW-14, in the analysis of the trial Court his evidence was
also unreliable and unbelievable. The trial Court has remarked as
under while referring to the evidence of PW-14.
“Therefore, the evidence of this witness appears to be
unreliable and unbelievable as it do not inspire any
confidence in the mind of the Court as against the
unknown and unidentified persons alleged to be also
present in the said assembly, moreover the alleged
words said to be uttered by the other unknown and
unidentified persons said to be present in group,
cannot be sufficient to attribute knowledge of the
common object of committing murder of deceased and
joining said assembly intentionally and continuing in
said assembly till object is achieved.”
xxx xxx xxx
Therefore, the evidence of PW-14 also cannot be
accepted as sufficient and reliable to hold A-2, A-4, A-
23 and A-24 as guilty of the offences under Sections
143, 147 and 148 of IPC. The very presence of the said
witness at the time of the occurrence appears to be
suspicious, in view of self-contradictory versions of
said witness and the contrary evidence to the
prosecution story and to the evidence of PW-5 and
PW-13. All the said witnesses examined as PW-5, PW-
13 and PW-14 are chance witnesses, who happened to
have witnessed the incident, by being present at said
place and time by chance. The reasons assigned by
said witnesses for their presence at the said place and
time and their stay at the said place do not appear to
be natural or probable in view of the material
contradictions in their evidence.”
JUDGMENT
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23. After such a categoric conclusion relating to the unreliability
and suspicious version of PW-14, the trial Court in one breath
concluded that his evidence, as regards the presence and acts of A-
2 and A-4 done in commission of the offences, is considered for
corroboration with evidence of eye witnesses, along with the
prosecution witnesses examined as eye witnesses to the incident. In
the light of the earlier detailed reference to the nature of evidence
tendered by PW-14 along with PWs-5 and 13 and the ultimate
conclusion of the trial Court in having held that their evidence was
unreliable, unbelievable and suspicious, it was wholly improper on
the part of the trial Court to ultimately state without any justifiable
reason that their version can be accepted for corroboration.
Therefore, the reliance placed upon the said witness, namely, PW-14
both by the trial Court as well as the High Court cannot be accepted.
24. When we come to the evidence of PW-15, as noted by the trial
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Court, he used to sell bananas by stationing his puller Gadi in front
of Anjuman Complex on Ambedkar Road and that he saw 40 to 45
persons going towards the shop of the deceased armed with knives,
choppers and swords. He further stated that out of the said group,
15 persons trespassed into the shop of the deceased while around
20 persons were standing outside the shop. He stated that those
who trespassed into the shop assaulted the deceased Lingaraju with
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choppers, knives, longs and swords all over the body (viz.) chest,
neck, left hand, back etc. Significantly, he also stated that when he
saw the deceased Lingaraju escaping from the shop and running
towards the police station, he collapsed in front of Surya Prabha
Hardware shop and at that point of time, PWs-11 and 24 were
running towards that spot. The trial Court has also specifically noted
that the version of PW-15 in the course of the cross examination
that PW-11 arrived at the place of occurrence only after the fall of
the deceased near the hardware shop was contrary to the version of
PW-11. The trial Court, therefore, stated that if the said statement of
PW-15 is to be believed, then the evidence of PW-11 would be
unreliable as regards his witnessing the incident of assault of the
deceased inside the shop, as well as, outside the shop. The above
factors, therefore, disclose that the evidence of PW-15 and PW-11
are self contradictory in nature.
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25. When we analyse the evidence of PW-15 vis-à-vis the evidence
of PW-11, we are convinced that the version of both the said
witnesses cannot be relied upon for reaching a definite conclusion
as to the guilt of the accused, in particular, the Appellants herein.
Moreover, admittedly PW-15, the deceased and PW-11 are closely
related. The trial Court has also held that the version of PW-15 that
he saw A-6 present in the group of 15 persons who trespassed into
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the shop of the deceased and assaulted him was contrary to the
prosecution story and the evidence of other eye witnesses.
Admittedly, no weapon was recovered at the instance of A-6, while
according to PW-15, A-6 was not only in possession of a weapon but
also used it in the commission of the offence. In the light of the
above analyses made by the trial Court as regards the version of P-
15, which consists of very many incongruities relating to the factum
of occurrence, the presence of witnesses and the overt act alleged
against some of the accused, it will be highly unsafe to place
reliance upon the said witness as regards the guilt of the
Appellants/Accused.
26. Having noted the above features relating to PWs-14, 15, 19,
24, 30, 43 and 44, we are left with the so-called star witness,
namely, PW-11 who was none other than the elder brother of the
deceased Lingaraju. Since, the prosecution heavily relied upon the
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said witness, it is necessary to examine the version spoken to by the
said witness in some details as regards the motive, the place of
occurrence, the manner in which the act was said to have been
committed by the various accused, his claim about his presence at
the place of occurrence and also the extent of the overt act
attributed to different accused including the Appellants and the
subsequent conduct of the said witness. After making reference to
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these factors as narrated by him in his evidence as well as noted by
the trial Court in its judgment, it can be examined as to whether the
heavy reliance placed upon the said witness can be held to be
justified.
27. In order to analyse the evidence of the said witness in the first
instance, the location where the occurrence took place as spoken to
by PW-11 in his complaint and as to how many of the accused
according to him were involved in the commission of offence has to
be noted. The complaint is Exhibit P-18. The sum and substance of
the contents in the said document was that on 13.02.1999 at about
3 p.m. when PW-11 was coming from Shringar Hotel after taking
coffee towards his shop, noticed all of a sudden that about 15
persons trespassed into his shop and assaulted his younger brother
Lingaraju, the deceased with knife, choppers and the like mercilessly
on his body, back, neck and leg etc. and that while he was
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proceeding towards the place of occurrence, simultaneously
screaming, all the accused persons ran away from the shop
proclaiming that their vengeance was fulfilled and that the deceased
was murdered. He also stated that, while so, his younger brother,
namely, the deceased was running towards the police station from
the shop and fell down near the old post office. He, however, stated
that from among the accused persons who were running away he
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could note the three Appellants and that he did not know the names
of the other persons, though he would be in a position to identify
them if he gets an opportunity to see them.
28. Keeping the said version of PW-11 immediately after the
occurrence in mind, when we examine the mahazar prepared at the
place of occurrence, it has been noted therein that the place of
occurrence pointed out by PW-11 was situated inside the banana
shop of PW-11 himself. The size of the shop was described as North-
South 11 feet and East-West 8 feet with Mangalore tiled roof top. A
cement platform of 3 feet width and 2½ feet height with 9 feet
length was stated to be there in front of the said shop. The mahazar
also mentions that the occurrence took place at the time when the
deceased was carrying on his business activity of selling bananas
inside the South-East corner of the said shop. Again keeping the
above specific particulars noted in the mahazar based on the
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instructions given by PW-11, it will be necessary to note the place
where PW-11 was taking coffee, namely, Shringar Hotel, vis-à-vis the
exact place where the deceased fell down after he was allegedly
assaulted by the accused inside the shop and the approximate
distance as between the shop of PW-11, namely, where the
deceased was carrying on the business of selling bananas and the
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place where the deceased fell down by referring to the sketch mark,
namely, Exhibit P-55 before the trial Court.
29. The above mentioned sketch discloses that the banana shop of
PW-11 was situated on the eastern side of the main road called
Ambedkar Road while the Shringar Hotel was on the western side
i.e. on the opposite side where the banana shop was located. The
distance approximately stated to be around 150 feet. PW-11 claimed
that when he was returning from Shringar Hotel after taking coffee
and was approaching near the Mahadevswami Clinic, he noticed the
crowd which was assembled in front of his banana shop. As per the
Exhibit P-18 complaint, he noticed not less than 15 persons who
trespassed into his shop. Before the Court, he stated that when he
was returning back from Shringar Hotel along with his friend
Parmesh near Geeta Bhawan Hotel, he saw a group of about 40 to
45 persons who were coming from Nalanda Gas Agency in front of
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his banana shop and from among them, 15 persons were shouting
“ Mar do Mar do ” who were holding two swords like long, axes and
small knives in their hands. He also narrated that the deceased
Lingaraju was alone in the shop and the mob went inside the shop
and assaulted him with the said weapons. Considering the said
version of PW-11, in contrast to the version of PW-15 who was stated
to be present even before the occurrence took place, PW-15 stated
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in clear terms that when PW-11 arrived, the deceased had already
left the Banana shop running towards the Police Station and fell
down in front of Surya Prabha Hardware shop.
30. When we examine the deposition of PW-11, the relevant
factors to be noted are that his banana shop was situated near
Geeta Bhawan on Ambedkar Road, that Surya Prabha hardware shop
where the deceased ultimately fell down was at a distance of 140-
150 feet from his banana shop. The Shringar hotel where PW-11
was taking coffee was situated in a lane and that while he was
returning from the said hotel after taking coffee he saw 35-40
persons surrounding his shop and 15 persons forcibly entered his
shop armed with axe, knife and long (meaning a long knife) who
were assaulting the deceased Lingaraju. According to him, after the
deceased was attacked inside the banana shop, he somehow
escaped and was running towards the police station after crossing
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Geeta Bhawan and near Surya Prabha hardware shop where he
collapsed and fell down.
31. He would state that A-1 who was present and who assaulted
his deceased brother was holding an axe, that A-2 who was
assaulting his deceased brother was holding a long (meaning a long
knife), that A-3 was assaulting his deceased brother with a long and
A-29 was also assaulting his deceased brother with a sword. After
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saying so, in the later part of his evidence, he stated without any
ambiguity that M.O.5 sword, which was shown to him in the Court
was found in the hands of A-3. He also stated that the axe shown to
him marked as M.O.19 was in the hands of A-2. However, he stated
that it was not possible for him to state the weapons held by any of
the accused by identifying the same. He went on to state that his
younger brother i.e., the deceased was assaulted inside the shop
with the aid of long axe, knife that all the remaining accused who
were 35-40 in number, were standing outside the shop shouting
‘maro maro’ and that when his brother was attempting to escape
from the shop the assault continued. He would further state that
when he saw 15 persons entering his shop and another group of 30
persons standing outside his shop, he was frightened by such a
large group formed outside his shop and that he could see his
brother who was standing in front of his shop in order to escape
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from their clutches, running towards Surya Prabha hardware shop.
He also stated that after seeing the assault made by the persons in
the group on his younger brother, he did not run towards his shop
but ran towards Surya Prabha hardware shop where his brother fell
down.
32. Keeping the various above factors stated by PW-11 and also as
noted in the Exhibit P-18, the complaint, the mahazar as well as P-55
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sketch read along with the version of PW-15, it will have to be
stated that PW-11, who was taking coffee in Shringar hotel, which
was located in a lane situated beyond Surya Prabha hardware shop,
even by accepting the fact that he was approaching near
Mahadevswami Clinic, which was in between the said Shringar hotel
and his banana shop, the evidence of PW-11 could not have been
believed insofar as it related to the actual occurrence, which
admittedly was taking place inside his banana shop, the length and
breadth of it being 11 ft. x 8 ft. which place was admittedly
surrounded by nearly 30 persons while 15 persons were stated to be
inside the said shop of small size. We say so because it would have
been next to impossible for PW-11 to have witnessed the actual
occurrence that was taking place inside such a small place which
was already occupied by 15 persons and surrounded by 30 others
outside the shop, taking note of the fact that he was located in a
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place away from the shop near Mahadevswami Clinic.
33. It is necessary to examine and find a definite answer to the
said question in the light of various allied facts with reference to the
number of persons, the place from where he was witnessing such an
assembly, the nature of movement of the persons gathered in front
of his banana shop, his own statement that he was frightened while
looking at such a large group of persons and that even according to
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him he saw his brother running away from the shop with a view to
escape and that he did not run towards the shop but was eager to
follow his brother who was running towards Surya Prabha hardware
shop where he ultimately fell down and collapsed. In this context,
the evidence of PW-15, another so called eye witness, was very
categoric to the effect that when PW-11 came to the spot, the
deceased had already reached Surya Prabha Hardware Shop where
he collapsed.
34. It was beyond controversy that the actual occurrence of
assault on the deceased Lingaraju took place inside the banana
shop, the area of which going by the description, could not have
been beyond 90-100 sq. feet. If inside such a small place assuming
15 persons had entered and by the time PW-11 was approaching
near the Mahadevswami Clinic, the occurrence had already taken
place, it would have been next to impossible for anyone, much less
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PW-11 to have gone inside the shop and to have noticed as to who
was assaulting the deceased with what weapon. While looking at
the place of occurrence, even if it is from a nearby place, when the
particular place of occurrence was surrounded by not less than 35-
40 persons of whom 15 persons stated to have already entered the
place of occurrence, the scope for PW-11 to have witnessed the
incident with that much of exactitude, as to which accused
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assaulted his brother with what weapon in his hand cannot be said
to have been really witnessed by him. That apart, even by his own
version he saw his deceased brother coming out of the shop and
trying to escape from the assault of persons gathered there who
continued to inflict injuries on him and on seeing his brother running
towards the police station, which was beyond Surya Prabha
hardware shop, PW-11 himself instead of going towards the shop
was following his injured brother who fell down near Surya Prabha
Hardware and collapsed. The said part of his evidence is consistent
with the evidence of PW-15.
35. Apart from the above inconsistencies which could be gathered
from the evidence of PW-11, his specific overt act as against A-3
that he was holding a long in his hand, was falsified by his own
statement while identifying M.O.5, which was a sword which he
stated was found in the possession of A-3. Similarly, with reference
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to A-2 while in the earlier part of his statement, he stated that he
was assaulting the deceased with the aid of a long (a long knife)
when he identified M.O.-18, he stated that it was the said axe which
was found in the hands of A-2. Here again, PW-11 was not consistent
with reference to the weapon stated to have been found in the
possession of A-2 and A-3. A cumulative consideration of his version
discloses that PW-11 could not have witnessed the occurrence as
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spoken to by him. We, therefore, find that the evidence of PW-11
was full of inconsistencies and unfortunately the trial Court as well
as the High Court completely ignored such inconsistencies while
holding the Appellants guilty of the offence alleged against them.
36. As has been narrated in the earlier part of this judgment, the
High Court placed reliance upon PWs-11, 14, 15, 19, 24, 30, 43 and
44 to hold that the offence as against A-1 to A3 was sufficiently
established. When we peruse the judgment, we find that the High
Court seemed to have totally omitted to note relevant findings of the
trial Court as regards the evidence of PWs-14, 15, 19, 24, 30, 43 and
44 by stating that there was no reason to disbelieve their evidence
except that it suffered from little variations. On the other hand, as
has been noted by us, by extracting the relevant part of the findings
of the trial Court wherein the trial Court has given categoric finding
with reference to each of the above said witnesses, that many of
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them were chance witnesses and were not able to give a real picture
of what transpired in the place of occurrence because of glaring
inconsistencies in their evidence and, therefore, their evidence was
totally unreliable and unbelievable. Unfortunately, the High Court
without assigning any reason perfunctorily held that except minor
variations those witnesses were eye witnesses and that their version
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was believable, trustworthy, natural which finding was not supported
by any convincing reason.
37. Having regard to the above analysis made by us with reference
to the so-called star witness PW-11 and the other so-called eye
witnesses with reference to whom the trial Court has made it clear
that they were all unreliable and unbelievable, it will be wholly
unsafe to rely on such evidence in order to confirm the conviction
imposed on A-1 to A-3.
38. For the above stated reasons, we find force in the submission
of Mr. Altaf Ahmed, learned Senior Counsel that though the very
version spoken to by the said witnesses persuaded the trial Court to
acquit all other accused, except A-1 to A-5 and A-29 and the High
Court to acquit A-4, A-5 and A-29, for the very same reasoning, the
conviction of A-1 to A-3 cannot also stand. Consequently, the appeal
is allowed. The conviction and the sentenced imposed on the
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Appellants are set aside. The Appellants shall, therefore, be set at
liberty forthwith unless their detention is required in any other case.
...……….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
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...…….……….……………………………J.
[Abhay Manohar Sapre]
New Delhi;
December 03, 2014.
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