Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.497 OF 2009
Pappi @ Mehboob …Appellant
:Versus:
State of Rajasthan …Respondent
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal has been filed by accused No.1, who has
been convicted for offence punishable under Section 302 of the
Indian Penal Code (“IPC”) simpliciter. From amongst seven
accused persons named by the prosecution as involved in
Signature Not Verified
commission of the offence, five accused were tried by the
Digitally signed by
DEEPAK SINGH
Date: 2019.02.05
14:36:56 IST
Reason:
Additional District and Sessions Judge No.2, (Fast Track),
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Kota, in Sessions Case No.77/2001. The incident occurred on
th
15 January, 1998 when one Guddu @ Shehjad was assaulted
by the accused persons while he was returning from
Meenawala Baba’s Dargah. The incident was witnessed by
Yunus (PW6) who submitted a written report (Exh. P9) at the
Police Station, Railway Colony, Kota, on the same day
immediately after the incident in question occurred. He
reported that when Guddu @ Shahzad was returning from
Meenawala Baba’s Dargah, accused Pappi @ Mehboob
(Accused No.1/appellant), Idrish (Accused No.2), Laxman
(Accused No.5), Hemu @ Hemant (Accused No.6), Gyani @ Lalit
Kumar Singh (Accused No.4) and two others, who were
equipped with swords, inflicted sword blows on him. When
Yunus (PW6) attempted to intervene, Idrish gave a sword blow
which struck on the fingers of his left hand. He was asked to
stay away or else face dire consequences. Yunus (PW6) then
watched the entire incident in that condition when the
accused persons repeatedly assaulted Guddu who succumbed
to the injuries.
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2. After registration of FIR and investigation of the case by
the local police, chargesheet was filed and the case was
remitted for trial before the Additional District and Sessions
Judge No.2, (Fast Track), Kota. Although seven persons were
mentioned in the report, Idrish (Accused No.2) and Shamsu
(Accused No.7) could not be tried as they were absconding.
The trial proceeded against five accused, namely, Pappi
(Accused No.1/appellant), Sabir (Accused No.3), Gyani
(Accused No.4), Laxman (Accused No.5) and Hemu (Accused
No.6) and they were held guilty of committing offence under
Sections 148, 302 and 324/149 IPC. Sabir (Accused No.3)
came to be acquitted of the charge. Accused Pappi (appellant),
Hemu, Gyani and Laxman were acquitted of the charge of
committing offence under Sections 147, 307, 307/149,
th
323/149 IPC. The judgment and order dated 4 September,
2002 passed by the Trial Court was assailed by Pappi
(Accused No.1), Gyani (Accused No.4) and Hemu (Accused
No.6) before the High Court, being Criminal Appeal
No.1614/2002 and Laxman (Accused No.5) filed separate
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appeal being Criminal Appeal No.1275/2002. The High Court
vide impugned judgment disposed of both the appeals together
in terms of the following order:
“25. As a result of the above discussion, we dispose of the
instant appeals in the following terms:
(i) Appeal of Pappi @ Mehboob stands
dismissed and his conviction and sentence
under section 302 IPC are maintained. He
however stands acquitted of the charges
under sections 148 and 324/149 IPC.
(ii) Appeals of Gyani @ Lalit Kumar Singh,
Hemu @ Hemant and Laxman are allowed and
they stand acquitted of the charges under
sections 302, 148 and 324/149 IPC. These
appellants are in jail, they shall be set all
liberty forthwith, if they are not required to be
detained in any other case.
(iii) Impugned Judgment of learned Trial court
stands modified as indicated above.”
3. As a result, Pappi (Accused No.1/appellant) who alone
has been convicted for offence simpliciter under Section 302 of
IPC is in appeal before this Court.
4. The appellant Pappi (Accused No.1) has assailed the
impugned judgment and order on the ground that the quality
of evidence as has come on record is not worthy of recording a
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finding of guilt against him and in any case, the Trial Court
having acquitted Sabir (Accused No.3) and the High Court
having acquitted the other three coaccused Gyani, Hemu and
Laxman and also that the prosecution could not proceed
against Idrish (Accused No.2) and Shamsu (Accused No.7), as
they were absconding, the appellant deserves to be acquitted
for the same reasons recorded in the case of Gyani, Hemu and
Laxman by the High Court. The High Court vide impugned
judgment and order had allowed the appeals filed by the said
accused for the reasons recorded in paragraphs 23 & 24 which
read thus:
“23. It appears from the material on record that charge
sheet was not filed against Shamsu and Idrish was
absconded during trial. Learned trial court acquitted
Sabir on the ground that he was not named in the FIR.
24. Having analysed the evidence of Yunus, Rashid and
Rafiq with particular reference to its trustworthiness
and truthfulness by a process of judicial scrutiny, we
find that case of appellants Gyani, Hemu and Laxman
is not distinguishable with that of the case of Shamsu
and Sabir. All these accused persons have been
assigned identical role by injured eye witness Yunus.
Since Shamsu was not charge sheeted and Sabir got
acquitted and no appeal was filed by the State against
him, appellants Gyani, Hemu and Laxman, in our
opinion, are entitled to benefit of doubt. We do not
want to express any opinion in regard to accused
Idrish since he is not before us.”
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5. We have heard Ms. Aishwarya Bhati, learned counsel
appearing for the appellant and Mr. Jayant Bhatt, learned
counsel appearing for the State of Rajasthan and we have also
carefully perused the record. It is noticed from the judgment of
the Trial Court that the prosecution case has been believed by
the Trial Court against accused Pappi, Hemu, Gyani and
Laxman, essentially relying on the evidence of Yunus (PW6)
and Rashid (PW9). The Trial Court has accepted their
evidence to be credible evidence. The Trial Court has also
noted that the defence could not shake the credibility of Yunus
(PW6) who was an injured eyewitness and Rashid (PW9) an
independent eyewitness – their presence at the scene of
occurrence has been found to be natural. Besides their
evidence, the Trial Court has taken into account other
circumstances, amongst others, 67 injuries suffered by
deceased Guddu to which he eventually succumbed, recovery
of swords from the concerned accused including Pappi
(Accused No.1).
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6. Notably, even the High Court has not doubted the
evidence of Yunus (PW6) and Rashid (PW9). The High Court
gave benefit of doubt to Accused Gyani, Hemu and Laxman,
merely on the ground that their case was not distinguishable
from that of Shamsu and Sabir. As regards accused Shamsu,
chargesheet could not be filed as he remained absconding
during the trial. As regards Sabir, the Trial Court had taken
into account the circumstances such as he was not named in
the FIR and his involvement was disclosed by Yunus (PW6)
belatedly. Yunus obviously did not know his name. Further, it
has been admitted by Yunus that his name was mentioned to
him (Yunus) by a shopkeeper. But that shopkeeper was
neither named by Yunus nor was examined by the
prosecution. Additionally, Rafiq (PW5) was examined by the
prosecution to establish the involvement of Sabir in the
commission of offence but the Trial Court disbelieved PW5 as
unreliable witness. Viewed thus, the acquittal of Sabir by the
Trial Court was on different ground and not limited to the fact
that his name did not appear in the FIR, as has been noted in
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paragraph 23 of the impugned judgment. Be that as it may, it
is noticed that the names of Gyani, Hemu and Laxman have
been mentioned in the FIR, unlike that of Sabir. However,
neither the State nor the complainant has chosen to file
appeal to question the said conclusion recorded by the High
Court in favour of those accused (in paragraph 24 of the
impugned judgment).
7. The question is: whether the fact that Sabir (Accused
No.3) has been acquitted by the Trial Court and the co
accused Gyani (Accused No.4), Hemu (Accused No.6) and
Laxman (Accused No.5) have been acquitted by the High
Court, by itself can be the basis to acquit the appellant – Pappi
(Accused No.1)? Our answer is an emphatic “NO”.
8. Learned counsel for the appellant was at pains to
persuade us to take a view that the quality of evidence leaves
much to be desired and was not sufficient to record a finding
of guilt against the appellant Pappi (Accused No.1). However,
after going through the judgments of the two Courts and the
relevant record, we are of the considered opinion that the
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finding of guilt recorded by the Trial Court against the
appellant Pappi (Accused No.1) and affirmed by the High Court
is a possible view and needs no interference. As aforesaid, the
Trial Court besides relying on the evidence of Yunus (PW6)
and Rashid (PW9) also adverted to other circumstances to
record a finding of guilt against the appellant. The evidence
for recording such a finding is very much available on record.
Merely because the appellant alone has been convicted for the
stated offence simpliciter under Section 302, while the other
coaccused have been acquitted, it does not follow that the
appellant should be given the benefit of doubt despite the
clinching evidence on record to establish his guilt and
involvement in the commission of offence. It is a different
matter that the same witnesses Yunus (PW6) and Rashid
(PW9) have spoken about the involvement of other accused
who have now been acquitted. As noted earlier, the reason for
which the High Court acquitted those coaccused Gyani,
Hemu and Laxman, cannot be countenanced on the basis of
the evidence on record against them. However, that erroneous
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finding in their favour would be of no avail to the appellant
whose name and role has been clearly mentioned in the FIR as
also by the witnesses Yunus (PW6) and Rashid (PW9) whose
credibility has remained unshaken. The role of the appellant
in the commission of the offence has been clearly spelt out by
these witnesses. They have stated that the appellant gave the
first blow with sword, whereafter the other accused followed
and repeatedly assaulted deceased Guddu, causing as many
as 67 injuries all over his body, most of which are incised
injuries, possible by means of a sword. The injuries caused to
the deceased Guddu, have been noted in the postmortem
report as follows:
“Guddu @ Shahjad S/o Yamin Mohd. Caste Mohamaden age
19 years, R/O Safety Match Box Factory dudwada KOTA PS.
Rly. Colony PMR No.21/98 16.01.98
Antimortem Injuries :
1. Incise wound – 5x1 cm x bone deep on centre of
parietal scalp oblique. Red color.
2. Abrasion – 8x4 cm. on Lt half of forehead.
3. Abrassion – (4in No.) 1x1 cm each on front of forehad.
4. Abrassion – 2x ½ cm. on nose Rt. Side.
5. Abrassion – 3x2 cm. on Lt. check maxillaryarea.
6. Incise wound: 8x ½ cm. Skindeep on Rt. Arm upper
1/3 Lateral side obliquely placed.
7. Incise wound 5x ½ cm. x Skindeep Transverse on Rt.
Arma middle 1/3 anteriooby.
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8. Scratch – 4.cm long on Rt. Arm Lat side obliquely.
9. Incise wound – 2x ½ cm x Skindeep Rt. Aram Lover
1/3 Posteriorly transvorese.
10. Incise wound – 9x2 cm x bone deep on back of
Rt.elbow vertical. There is fracture of Rt. Radius &
ulna upper 1/3.
11. Scratch – 6 cm oblique on lat side of Rt. Elbow
12. Incise wound – 6x1 cm x skin deep on lat side of Rt.
elbow Transverse.
13. Scratch – 5 cm. Transverse on back of Rt. fore arm
lower 1/3
14. Incise wound – 1 ½ x ¼ cm. x skindeep on Rt. little
finger at Distal Interphalyrgeal 1t Post.
15. Incise wound – 2x ¼ cm x muscle deep on Rt. pales
vertical.
16. Incise wound – 1 x ¼ cm x skindeep on Rt. Land at
web space of thumb & Index finger.
17. Scratch – ½ cm long on back of Rt. index finger.
18. Scratch – ½ cm long on back of Rt. middle finger.
19. Scracth – 10 cm Transverse on Rt. side of chest.
20. Scratch – 6 cm. long vertical on Rt. left side of chest.
21. Abrasion : 5x1 cm on Rt. Lat side of Abdomen.
22. Abrassion 6x1 cm on Lt. shoulder.
23. Scratch – 13 cm. oblique on Lt. Scrapular region
24. Scratch – 5 cm on front of Lt. Shoulder upper 1/3
Lately.
25. Scratch – 8cm. on Lt. shoulder upper 1/3 lately.
26. Scratch – 5cm on Lt. arm upper 1/3 Laterally
Transverse.
27. Scratch – 3cm. Transverse on Lt arm middle 1/3 lately
28. Scratch m 7 cm on Lt. arm lower 1/3 Laterally.
29. Incise wound – 2 ½ x ½ cm. x skindeep on Lt. forearm
upper 1/3 Posteriorly oblique.
30. Incise wound – 10x7 cm x bone deep on Lt. forearm
upper ½ posteriorly with fracture of upper 1/3 Radius
& ulna seen.
31. Incise wound – 2x ¼ cm. skindeep on Lt. forearm lover
1/3 oblique.
32. Incise wound – 7x 5 cm x bone deep on Lt. wrist
Postero medical aspect Transverse with fracture of
Lower 1/3 of Radius ulna seen.
33. Incise wound – 6x1 cm x skin deep on Lt.
Wrist parallel to Inj No. (32).
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34. Incise wound – 3 x 1 cm x muscle deep on Lt. forearm
middle 1/3 anteriorly.
35. Incise wound – 3 x ¼ cm x skindeep on back of Lt.
hand Transverse.
36. Incise wound – 2x ½ cm x muscle deep en Lt. index
finger.
37. Incise wound – 1 x ¼ cm. skindeep on Lt middle
finger.
38. Incise wound – 3 x ¼ cm. x skindeep on Lt. Plam.
39. Incise wound – 8 x 3 cm x muscledeep, vertical on Lt.
Palm.
40. Incise wound – 3 x ¼ cm. x skindeep Lt. Palm.
41. Incise wound 6x2cm x muscle deep on Lt. lip lateral
side oblique.
42. Incise wound – 4 x 1 cm. x skindeep on Lt. thigh
middle 1/3 laterally. Transverse.
43. Incise wound – 1x ¼ cm. x skin deep on Lt. High
middle 1/3 laterally.
44. Incise wound – 5 x 1 cm x skin deep Lt. thigh laterally.
45. Scratch – 5 cm Transverse just above Lt. knee antly.
46. Incise wound – 1 x ¼ cm x skin deep on lateral side of
Lt. knee.
47. Incise wound – 2 x ½ cm. x skin deep on Lt. Knee cap
oblique.
48. Scratch – 4cm. on Lt. Knee cap Lower part.
49. Scratch – 3cm. on Lt. Leg Upper 1/3 laterally.
50. Scratch – 4 cm. Transverse on Lt. leg upper 1/3
anterly.
51. Scratch – 5 cm Lt. leg Middle 1/3 laterally.
52. Incise wound – 5 x 1 cm x Skin deep Lt. leg middle 1/3
anterly oblique.
53. Abrassion 3 x 1 cm. Lt. leg middle 1/3 anteriorly.
54. Incise wound 3 x ½ cm. x Skin deep on Lt. leg lower
1/3 laterally. Transverse.
55. Incise wound – 8 x 2 cm x bone deep on medial side of
Lt. ankle.
56. Incise wound – 8 x 4 cm x muscle deep on back of Lt.
Knee.
57. Scratch 15 cm on back of chest upper part.
58. Incise wound (4 in No.) – 2 x ½ cm x muscle deep on
back of Lt. Lip.
59. Incise wound – 2 x ½ cm x muscle deep on back of Rt.
Lip.
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60. Scratch – 8 cm Transverse on lat side of Rt. High
middle 1/3.
61. Abrassion 6x3 cm Rt. Leg upper 1/3 laterally.
62. Incise wound – 2 x ½ cm. x muscle deep on Rt. Leg.
Middle 1/3 antly.
63. Incise wound: 4 x 1 cm x skin deep on Rt. knee cap.
64. Incise wound: 3 x 1 cm x bone deep on Rt. leg middle
1/3 interiorly.
65. Incise wound: 5 x 3 cm. x bone deep on Rt. Leg.
Lower 1/3 interiorly with fracture of Rt. tibia & fibula
Lower 1/3.
66. Incise wound: 3 x 1 cm x skin deep on medial side of
Rt. ankle Transverse.
67. Abrasion : 1 x ½ cm. medial side of Rt. greattse.
All the above mentioned injuries are ante martem in nature.
Duration: fresh before death.
Weapon: Sharp for injury also (1), (6) – (20), (23) –(52),
(54) – (60), (62) – (66)
Blunt – (2) – (5), (21), (22), (53), (61), (67).”
9. Reverting to the ocular evidence of Yunus (PW6) and
Rashid (PW9), both of them have stated that when Guddu
was coming back on foot from Meenawala Baba’s Dargah after
performing Jiyarat, Pappi (Accused No.1), Idrish (Accused
No.2), Laxman (Accused No.5), Hemu (Accused No.6), Gyani
(Accused No.4), Sabir (Accused No.3) and Shamsu (Accused
No.7) came running from the front side and immediately after
arriving there, accused Pappi @ Mehboob (appellant) gave the
first sword blow on the head of Guddu. This version has
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remained unshaken. Yunus (PW6) himself was injured in the
same incident having been attacked by Idrish with a sword
which hit his finger on the left hand. Besides the evidence of
Yunus (PW6) and Rashid (PW9), other circumstances such
as recovery of sword at the instance of the appellant has also
been proved – as found by the Trial Court and which finding
has not been disturbed by the High Court. To put it differently,
there is direct evidence to establish the role of the appellant in
the commission of offence. He took the lead in assaulting
Guddu by giving the first sword blow.
The argument of the appellant that there is no clear
10.
evidence to show as to which injury was caused by the blow
given by the appellant, in our view, is devoid of merit. The
prosecution has succeeded in establishing that deceased
Guddu suffered as many as 67 injuries, most of which were
incised wounds caused by sharp weapon like sword. In the
opinion of the doctor, the death was caused due to multiple
injuries and shock as a result of multiple fractures described
in the postmortem report. The assault continued for quite
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some time till Guddu was completely immobilized and stopped
responding. The participation of the appellant in giving first
blow and continuing with the assault has been spoken by the
injured eyewitness Yunus (PW6) and other eyewitness
Rashid (PW9). That evidence coupled with the circumstances
as noted by the Trial Court, therefore, would be sufficient to
sustain the finding of guilt against the appellant Pappi
(Accused No.1).
11. The appellant placed reliance on the dictum in the case
1
of , in which,
Durga Burman Roy Vs. State of Sikkim
however, the accused was acquitted as the prosecution had
failed to point out any substantive evidence against him and
because the coaccused against whom there was evidence of
strangulation was already acquitted. Even the decision in the
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case of Sadananda Mondal Vs. State of West Bengal ,
wherein the Court acquitted the appellant as the prosecution
had failed to establish the case beyond reasonable doubt
about the involvement of the appellant therein in the
1
(2014) 13 SCC 35
2
(2013) 15 SCC 293
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commission of the crime and that the coaccused were already
acquitted having disbelieved the entire case of the prosecution
on the basis of the same evidence. To avoid prolixity, we do not
wish to refer to other decisions relied upon by the counsel for
the appellant which are on the facts of that case.
12. In the present case, however, we find that there is direct
evidence to substantiate the involvement of the appellant
(Accused No.1) in the commission of the crime, given by the
injured eyewitness (PW6) besides the independent witness
(PW9) and other circumstances, pointing towards the guilt of
the appellant who gave the first blow and continued to give
further blows, as a result of which deceased Guddu suffered
multiple injuries and succumbed to those injuries.
13. Suffice it to observe that the acquittal of the coaccused
by giving benefit of doubt, by itself can be no ground to
discard the otherwise reliable evidence which has remained
unshaken, pointing towards the complicity of the appellant in
the commission of crime. In that view of the matter, no fault
can be found with the impugned judgment affirming the
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finding of guilt against the appellant alone, amongst the five
accused tried together, while convicting the appellant
simpliciter under Section 302 of IPC. Hence, this appeal must
fail and the same is dismissed. Bail bond stands cancelled.
While parting, we place on record our appreciation for the
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able assistance given by the counsel appearing on both sides.
................................J
(A.M. Khanwilkar)
................................J
(Ajay Rastogi)
New Delhi.
February 5, 2019.