Mr. Huzefa Ahmadi, learned senior counsel for
appellants contented that both the Courts below have
committed an error in convicting the appellants for the
offence punishable under Section 302 IPC, along-with
other accused. He submitted that there were material
improvements made by PW14 in his deposition when
compared to the fardbeyan given to the police on the date
of the incident and no specific role has been attributed to
the present appellants. But after careful analysis of the
fardbeyan (Ext.7), we have an entirely different opinion.
It is true that deposition is somewhere literally larger
than the fardbeyan, however, it is no where contrary to
it. It may rightly be said that the deposition of PW14 is
merely elaborated form of statement recorded before the
police, with minor contradictions. Oral evidence of a
witness could be looked with suspicion only if it
contradicts the previous statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.484-487 of 2008
SHEIKH JUMAN & ANR. ETC.
V
STATE OF BIHAR .
Dated:February 23, 2017.
Citation: AIR 2017 SC 1121
1. These appeals are directed against the judgment
and order dated 5th October, 2007 passed by the High
Court of Judicature at Patna in Criminal Appeal Nos.122,
92, 98 and 123 of 2003, whereby the High Court while
confirming the conviction of the appellants and the
sentence of life term, commuted the death sentence of
Sheikh Shamsul and Sheikh Gheyas, to imprisonment
for life and dismissed the appeals.
1. The brief facts necessary to dispose of these appeals
are that on 19.01.1991 at about 6:00 pm, one Askari
(since deceased), who happened to be the nephew of the
informant (PW14) was at his grocery shop when
appellants armed with bomb explosives and guns came
near his shop. Appellant Sheikh Shamsul hurled a bomb
at the deceased and as a result of the explosion Askari
fell down on the Gaddi of the shop. In the meanwhile,
appellant Sheikh Ashfaq also attacked him by a bomb
which hit him on the chest and exploded and
consequently Askari died at the Gaddi itself. Informant’s
another nephew, namely, Mohd. Asad, who was at the
Flour Mill just opposite the shop of Askari, hearing the
sound of explosion came running to the shop and he was
also attacked by a bomb by accused Sheikh Gheyas. Due
to explosion Mohd. Asad sustained severe injury, fell
down near the shop and became unconscious. Md. Vasir
(PW1) who was standing there was also injured. On
hearing the sound of the bomb explosion, villagers
assembled there and appellants fled away towards North,
firing shots in the air. Injured Mohd. Asad was taken to
Bhagalpur hospital by the villagers in critical condition
but he succumbed to injuries at the hospital on the same
day.
2. Motive of the occurrence, according to first
information report (‘FIR’), is that two years prior to the
occurrence, a case under Section 307 of IPC was filed by
the informant against the appellants and they were
threatening the informant to withdraw the case,
otherwise they would eliminate the whole family.
3. The law was set into motion upon lodging of FIR by
PW14 (informant) arising out of Fardbeyan being Ext.
No.7 on the same day at 10:00 pm, at Shahkund Police
Station. The FIR was registered as C.R. No.I-69 of 2009.
The post-mortem of the deceased was performed by Dr.
H.I. Ansari (PW13). Looking to the post-mortem note of
deceased Mohd. Askari, marked Annexure A-13, there
were found explosive blast injuries on chest cavity deep,
face; both lungs and hear were lacerated. As per the
Post-mortem Report of deceased Mohd. Asad, there were
found blast explosive injury on abdominal cavity;
lacerated and bruise skin and lever. Both the deceased
died due to injuries caused by powerful bomb blast as
per above stated post-mortem reports marked Ext.13 and
13/13.
4. Upon completion of investigation and submission of
the charge sheet, Sessions Case No.309/22 of
1993/1999 was registered against the accused.
Thereafter, the Court of 1st Additional District & Sessions
Judge, Bhagalpur, framed charges against the accused
persons for the offences punishable under Sections 302,
302 read with Section 149 of IPC, Sections 3, 4 of the
Explosive Substances Act, and Section 27 of the Arms
Act. After they denied the said charges in their
statements, the evidence of prosecution witnesses was
recorded.
5. After recording the evidence of the prosecution
witnesses and considering all the relevant facts, the Trial
Court vide its judgment and order dated 4.02.2003
convicted accused No.3, 8 and 9 for the offence
punishable under section 302 of IPC and Sections 3, 4 ofPage 5
5
Explosive Substances Act and sentenced accused Nos.3
and 9 (Sheikh Shamsul and Sheikh Gheyas) to death
since the Court did not want to give them opportunity to
commit third homicide as they had already been
convicted previously in some other homicidal death case.
Accused No.8 was sentenced to imprisonment for life.
The accused No.7 Sheikh Chengwa was convicted for
offence punishable under Section 302 read with Section
149 IPC and Sections 3 & 4 of the Explosive Substances
Act and sentenced him to rigorous imprisonment for 10
years. Rest of the accused were convicted for the offences
punishable under Section 302 read with Section 149 of
IPC and Section 27 of the Arms Act and sentenced to
undergo rigorous imprisonment for a period of three
years.
6. Being aggrieved by the aforesaid judgment and
order of the Trial Court, the accused persons filed
appeals before the High Court. While 1st Additional
Sessions Judge, Bhagalpur, made Death Reference No.2
of 2003 vide letter dated 18.02.2003 for confirmation ofPage 6
6
death sentence, Criminal Appeals Nos.92, 98, 122-126 of
2003 were preferred by the accused persons seeking
acquittal.
7. The High Court vide its judgment and order dated
5
th October, 2007, rejected the death reference and also
dismissed the aforesaid appeals filed by accused persons
and confirmed their conviction. However, the death
sentence of accused Sheikh Samsul and Sheikh Gheyas
was commuted to imprisonment for life. Aggrieved by the
aforesaid judgment and order passed by the High Court,
the accused persons have sought to challenge the same
before us in these appeals.
8. Keeping in mind the position of law as enunciated
in the case of Ganga Kumar Srivastava Vs. State of
Bihar, (2005) 6 SCC 211, pertaining to the principles for
exercise of power under Article 136 of the Constitution of
India and settled by a series of decisions of this Court, we
shall now examine the evidence adduced by the parties
and the materials on record and see that in view of the
nature of offence alleged to have been committed by thePage 7
7
appellants, whether the concurrent findings of fact call
for interference in the facts and circumstances of the
case.
9. In the present case, there are concurrent findings of
both the Courts below as to the guilt of the accused
persons. The High Court has discussed basically four
issues in its judgment, viz. (a) interpretation of Section
172 of Code of Criminal Procedure, 1973; (b) veracity of
the evidence adduced; (c) relevance of overt act in
conviction under Section 149 of the Penal Code; and (d)
rarest of the rare cases theory for confirming death
sentence.
10. On the first issue, the High Court has observed that
police dairy cannot be used as evidence in the case but to
aid it in such inquiry or trial, while relying upon the
judgment of this Court in Habeeb Mohammad Vs. State
of Hyderabad, AIR 1954 SC 51: 1954 SCR 475, wherein
it was held that when attention of a witness is not drawn
to his previous statement during the course of
investigation, same cannot be looked into in exercise ofPage 8
8
powers under Section 172(2) of the Code of Criminal
Procedure. Apropos second issue, it was observed by the
High Court that failure of witness to go to police station
and lodge the report on time without delay, and minor
contradictions pertaining to presence of customers at the
shop, in no way, affects the case of the prosecution.
11. High Court further found distinction between
judgments given in the case of Shambhu Nath Singh
Vs. State of Bihar, AIR 1960 SC 725 and that of Ram
Dular Rai & Ors. Vs. State of Maharashtra, 1961 SCR
(2) 773, though both the judgments discuss Section 149
of the IPC pertaining to unlawful assembly. With regard
to third issue, it was observed by the High Court that
merely because informant (PW14) was left unharmed or
that all appellants did not enter into the shop, the
prosecution case cannot be rejected, since overt act of
acting and omitting with regard to common object was
proved after appraisal of the evidence in the Court below.
In support of the fourth issue, the High Court while
relying upon its earlier judgments in State of Bihar Vs.Page 9
9
Sanjeet Rai and Anr., 2006 (4) PLJR 479 and State of
Bihar Vs. Prajeet Kumar Singh, 2006 (2) PLJR 656,
rejected the death reference holding that the case was
not falling in the category of rarest of rare cases.
12. While upholding the judgment and order of
conviction passed by the Trial Court, the High Court has
primarily relied upon the evidence of eye-witnesses,
PW14, PW4, PW5 and PW9 who were found to be
trustworthy and reliable. The High Court held that the
accused were sharing the common object of doing away
the deceased. However, from a perusal of the cross
examinations of PW4 and PW5, it appears that there was
personal enmity and PW3, PW4, PW14 were made
accused in a case of murder of Asfak, son of Sheikh
Samsul, appellant herein. PW14 had also filed a case
under Section 307 of IPC against the appellants two
years prior to the date of the incident which was still
pending.
13. Further, looking to the evidence given by PW9,
though not an eye-witness, the factum of assault with a
bomb on deceased Mohd. Asad was corroborated.
According to him he is also a witness to the seizure of
empty cartridge from Sheikh Ishteyaque.
14. Mr. Huzefa Ahmadi, learned senior counsel for
appellants contented that both the Courts below have
committed an error in convicting the appellants for the
offence punishable under Section 302 IPC, along-with
other accused. He submitted that there were material
improvements made by PW14 in his deposition when
compared to the fardbeyan given to the police on the date
of the incident and no specific role has been attributed to
the present appellants. But after careful analysis of the
fardbeyan (Ext.7), we have an entirely different opinion.
It is true that deposition is somewhere literally larger
than the fardbeyan, however, it is no where contrary to
it. It may rightly be said that the deposition of PW14 is
merely elaborated form of statement recorded before the
police, with minor contradictions. Oral evidence of a
witness could be looked with suspicion only if it
contradicts the previous statement.
15. He further submitted that narration of the incident
by the deceased Asad to PW3, as stated by PW3, is only
to falsely implicate the present appellants. According to
him, such deposition is improbable since PW15 –
Investigating Officer of the case and PW12 did not
narrate that deceased had regained consciousness and
named the accused and no other witness was examined
to prove the fact that deceased regained consciousness
and most importantly no recovery of gun has been made.
Thus, the prosecution case is shrouded with reasonable
doubt. It was further argued that in the light of judgment
of this Court in the case of K. M. Ravi and Ors. Vs.
State of Karnataka, (2009) 16 SCC 337, the appellants
holding outside shop cannot be held guilty, wherein it
was held that “mere presence or association with other
members alone does not per se be sufficient to hold
everyone of them criminally liable for the offences
committed by the others unless there was sufficient
evidence on record to show that one such also indented toPage 12
12
or knew the likelihood of commission of such an offending
act.”
16. Reliance was further placed on the judgment of this
Court in Jodhan Vs. State of Madhya Pradesh, (2015)
11 SCC 52, wherein it was held in paragraphs 25 & 26
that if the testimony is of an interested witness who have
a motive to falsely implicate the accused then the Court
before relying upon his testimony should seek
corroboration in regard to material particulars. In
paragraphs 28 & 29 also it was held that the testimony of
the injured witness stands on a higher pedestal than
other witnesses and reliance should be placed on it
unless there are strong grounds for rejection of his
evidence. [See also Hem Raj and Ors. Vs. State of
Haryana, (2005) 10 SCC 614]
17. Finally, it has been argued by the learned senior
counsel appearing for the appellants that the
post-mortem report does not support the prosecution
story that injury was caused only by a powerful bomb. It
was submitted that both the deceased were not close toPage 13
13
each other and deceased Asad was running towards the
shop when a bomb was allegedly thrown at him. Other
accused were standing with guns in their hands but they
did not share the common object and hence cannot be
held liable. In support of this, learned senior counsel
relied on the case of Bhim Rao and Ors. Vs. State of
Maharashtra, (2003) 3 SCC 37, wherein it was
observed:
“In the absence of any material to the contrary,
it should be presumed that those members of
the original unlawful assembly who only
shared the common object of assaulting
deceased Prabhakar cannot be attributed with
the subsequent change in the common object
of some of the members of the assembly who
entered the house of Prabhakar and caused
grievous injuries to him. So far as the present
appellants are concerned, who stood outside
the house of the deceased and who could not
have known what actually transpired inside
the house, the act of those members of the
original unlawful assembly who entered the
house, cannot be attributed, hence, as
contended by the learned counsel for the
appellants at the most these appellants will be
liable to be punished for sharing the original
common object which is only to assault the
deceased, therefore, they can be held guilty of
an offence punishable under Section 352 read
with Section 149 only.”Page 14
14
18. Mr. Ravi Bhushan, learned counsel appearing for
the respondent-State, on the other hand, supported the
order of conviction and sentence passed by both the
Courts below. He submitted that judgments cited by the
counsel for appellants have no point relevant to the
present case. The judgment given in the case of K. M.
Ravi (supra), is not relevant in whatsoever manner to the
present case, as in the present case, there was
facilitating the act of hurling of bombs by the other
accused persons as well as captivating the relatives of the
deceased so as to prevent them to come to his rescue.
This shows their active participation in the crime though
having overt act of merely holding guns outside the place
of occurrence.
19. It was further argued that the position cited in Bhim
Rao’s case (supra) is different from that of the present
case. PW14 and other witnesses present with him were
prevented from saving the victims while bombs were
hurled at the deceased. While relying upon the evidence
of PW4, PW5, PW6 and PW16 and other witnesses, it isPage 15
15
corroborated that after hurling of bomb by Shamsul and
Ashfaq the appellants fled away by firing in the air. One
of the appellants was caught with hot cartridge tied in his
lungi by PW-16 and this fact has been corroborated by
PW7, PW9, PW14, PW15 and PW16. Therefore, the
prosecution case leaves no room for doubt whatsoever
about the commission of offence by the appellants.
20. We have seen in the instant case that the witnesses
have vividly deposed about the genesis of the occurrence,
the participation and involvement of the accused persons
in the crime. The non-examination of the witnesses, who
might have been there on the way to hospital or the
hospital itself when deceased narrated the incident,
would not make the prosecution case unacceptable.
Similarly, evidence of any witness cannot be rejected
merely on the ground that interested witnesses
admittedly had enmity with the persons implicated in the
case. The purpose of recoding of the evidence, in any
case, shall always be to unearth the truth of the case.
Conviction can even be based on the testimony of a sole
eye-witness, if the same inspires confidence. Moreover,
prosecution case has been proved by the testimony of the
eye-witness since corroborated by the other witnesses of
the occurrence. We are constrained to reject the
submissions made on behalf of the appellants.
21. Keeping the facts and circumstances of the present
case in mind, we wish to emphasize the judgment of this
Court in Jodhan’s case (supra) and the relevant part of
the judgment is reproduced hereunder:
“On the bedrock of the aforesaid
pronouncement of law, the submission
canvassed by Mr. Sharma does not merit any
consideration inasmuch as the prosecution has
been able to establish not only the appellant’s
presence but also his active participation as a
member of the unlawful assembly. He might not
have thrown the bomb at the deceased, but
thereby he does not cease to be a member of
the unlawful assembly as understood within
the ambit of Section 149 IPC and there is ample
evidence on record to safely conclude that all
the accused persons who have been convicted
by the High Court had formed an unlawful
assembly and there was common object to
assault the deceased who succumbed to the
injuries inflicted on him. Thus analysed, the
submission enters into the realm of total
insignificance.”
22. In the instant case, the witnesses, as the High
Court has found and we have no reason to differ, are
reliable and have stood embedded in their version and
remained unshaken. They have vividly deposed about the
genesis of occurrence, the participation and involvement
of the accused persons in the crime and the injuries
inflicted on the deceased, and on each of them.
23. Thus, in the light of the above discussion, we are of
the view that the present appeals are devoid of merits
and the judgment passed by the High Court does not
warrant interference. These appeals are, accordingly,
dismissed.
…………………………………..J.
(Pinaki Chandra Ghose)
…………………………………..J.
(Ashok Bhushan)
New Delhi;
February 23, 2017.
appellants contented that both the Courts below have
committed an error in convicting the appellants for the
offence punishable under Section 302 IPC, along-with
other accused. He submitted that there were material
improvements made by PW14 in his deposition when
compared to the fardbeyan given to the police on the date
of the incident and no specific role has been attributed to
the present appellants. But after careful analysis of the
fardbeyan (Ext.7), we have an entirely different opinion.
It is true that deposition is somewhere literally larger
than the fardbeyan, however, it is no where contrary to
it. It may rightly be said that the deposition of PW14 is
merely elaborated form of statement recorded before the
police, with minor contradictions. Oral evidence of a
witness could be looked with suspicion only if it
contradicts the previous statement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.484-487 of 2008
SHEIKH JUMAN & ANR. ETC.
V
STATE OF BIHAR .
Dated:February 23, 2017.
Citation: AIR 2017 SC 1121
1. These appeals are directed against the judgment
and order dated 5th October, 2007 passed by the High
Court of Judicature at Patna in Criminal Appeal Nos.122,
92, 98 and 123 of 2003, whereby the High Court while
confirming the conviction of the appellants and the
sentence of life term, commuted the death sentence of
Sheikh Shamsul and Sheikh Gheyas, to imprisonment
for life and dismissed the appeals.
1. The brief facts necessary to dispose of these appeals
are that on 19.01.1991 at about 6:00 pm, one Askari
(since deceased), who happened to be the nephew of the
informant (PW14) was at his grocery shop when
appellants armed with bomb explosives and guns came
near his shop. Appellant Sheikh Shamsul hurled a bomb
at the deceased and as a result of the explosion Askari
fell down on the Gaddi of the shop. In the meanwhile,
appellant Sheikh Ashfaq also attacked him by a bomb
which hit him on the chest and exploded and
consequently Askari died at the Gaddi itself. Informant’s
another nephew, namely, Mohd. Asad, who was at the
Flour Mill just opposite the shop of Askari, hearing the
sound of explosion came running to the shop and he was
also attacked by a bomb by accused Sheikh Gheyas. Due
to explosion Mohd. Asad sustained severe injury, fell
down near the shop and became unconscious. Md. Vasir
(PW1) who was standing there was also injured. On
hearing the sound of the bomb explosion, villagers
assembled there and appellants fled away towards North,
firing shots in the air. Injured Mohd. Asad was taken to
Bhagalpur hospital by the villagers in critical condition
but he succumbed to injuries at the hospital on the same
day.
2. Motive of the occurrence, according to first
information report (‘FIR’), is that two years prior to the
occurrence, a case under Section 307 of IPC was filed by
the informant against the appellants and they were
threatening the informant to withdraw the case,
otherwise they would eliminate the whole family.
3. The law was set into motion upon lodging of FIR by
PW14 (informant) arising out of Fardbeyan being Ext.
No.7 on the same day at 10:00 pm, at Shahkund Police
Station. The FIR was registered as C.R. No.I-69 of 2009.
The post-mortem of the deceased was performed by Dr.
H.I. Ansari (PW13). Looking to the post-mortem note of
deceased Mohd. Askari, marked Annexure A-13, there
were found explosive blast injuries on chest cavity deep,
face; both lungs and hear were lacerated. As per the
Post-mortem Report of deceased Mohd. Asad, there were
found blast explosive injury on abdominal cavity;
lacerated and bruise skin and lever. Both the deceased
died due to injuries caused by powerful bomb blast as
per above stated post-mortem reports marked Ext.13 and
13/13.
4. Upon completion of investigation and submission of
the charge sheet, Sessions Case No.309/22 of
1993/1999 was registered against the accused.
Thereafter, the Court of 1st Additional District & Sessions
Judge, Bhagalpur, framed charges against the accused
persons for the offences punishable under Sections 302,
302 read with Section 149 of IPC, Sections 3, 4 of the
Explosive Substances Act, and Section 27 of the Arms
Act. After they denied the said charges in their
statements, the evidence of prosecution witnesses was
recorded.
5. After recording the evidence of the prosecution
witnesses and considering all the relevant facts, the Trial
Court vide its judgment and order dated 4.02.2003
convicted accused No.3, 8 and 9 for the offence
punishable under section 302 of IPC and Sections 3, 4 ofPage 5
5
Explosive Substances Act and sentenced accused Nos.3
and 9 (Sheikh Shamsul and Sheikh Gheyas) to death
since the Court did not want to give them opportunity to
commit third homicide as they had already been
convicted previously in some other homicidal death case.
Accused No.8 was sentenced to imprisonment for life.
The accused No.7 Sheikh Chengwa was convicted for
offence punishable under Section 302 read with Section
149 IPC and Sections 3 & 4 of the Explosive Substances
Act and sentenced him to rigorous imprisonment for 10
years. Rest of the accused were convicted for the offences
punishable under Section 302 read with Section 149 of
IPC and Section 27 of the Arms Act and sentenced to
undergo rigorous imprisonment for a period of three
years.
6. Being aggrieved by the aforesaid judgment and
order of the Trial Court, the accused persons filed
appeals before the High Court. While 1st Additional
Sessions Judge, Bhagalpur, made Death Reference No.2
of 2003 vide letter dated 18.02.2003 for confirmation ofPage 6
6
death sentence, Criminal Appeals Nos.92, 98, 122-126 of
2003 were preferred by the accused persons seeking
acquittal.
7. The High Court vide its judgment and order dated
5
th October, 2007, rejected the death reference and also
dismissed the aforesaid appeals filed by accused persons
and confirmed their conviction. However, the death
sentence of accused Sheikh Samsul and Sheikh Gheyas
was commuted to imprisonment for life. Aggrieved by the
aforesaid judgment and order passed by the High Court,
the accused persons have sought to challenge the same
before us in these appeals.
8. Keeping in mind the position of law as enunciated
in the case of Ganga Kumar Srivastava Vs. State of
Bihar, (2005) 6 SCC 211, pertaining to the principles for
exercise of power under Article 136 of the Constitution of
India and settled by a series of decisions of this Court, we
shall now examine the evidence adduced by the parties
and the materials on record and see that in view of the
nature of offence alleged to have been committed by thePage 7
7
appellants, whether the concurrent findings of fact call
for interference in the facts and circumstances of the
case.
9. In the present case, there are concurrent findings of
both the Courts below as to the guilt of the accused
persons. The High Court has discussed basically four
issues in its judgment, viz. (a) interpretation of Section
172 of Code of Criminal Procedure, 1973; (b) veracity of
the evidence adduced; (c) relevance of overt act in
conviction under Section 149 of the Penal Code; and (d)
rarest of the rare cases theory for confirming death
sentence.
10. On the first issue, the High Court has observed that
police dairy cannot be used as evidence in the case but to
aid it in such inquiry or trial, while relying upon the
judgment of this Court in Habeeb Mohammad Vs. State
of Hyderabad, AIR 1954 SC 51: 1954 SCR 475, wherein
it was held that when attention of a witness is not drawn
to his previous statement during the course of
investigation, same cannot be looked into in exercise ofPage 8
8
powers under Section 172(2) of the Code of Criminal
Procedure. Apropos second issue, it was observed by the
High Court that failure of witness to go to police station
and lodge the report on time without delay, and minor
contradictions pertaining to presence of customers at the
shop, in no way, affects the case of the prosecution.
11. High Court further found distinction between
judgments given in the case of Shambhu Nath Singh
Vs. State of Bihar, AIR 1960 SC 725 and that of Ram
Dular Rai & Ors. Vs. State of Maharashtra, 1961 SCR
(2) 773, though both the judgments discuss Section 149
of the IPC pertaining to unlawful assembly. With regard
to third issue, it was observed by the High Court that
merely because informant (PW14) was left unharmed or
that all appellants did not enter into the shop, the
prosecution case cannot be rejected, since overt act of
acting and omitting with regard to common object was
proved after appraisal of the evidence in the Court below.
In support of the fourth issue, the High Court while
relying upon its earlier judgments in State of Bihar Vs.Page 9
9
Sanjeet Rai and Anr., 2006 (4) PLJR 479 and State of
Bihar Vs. Prajeet Kumar Singh, 2006 (2) PLJR 656,
rejected the death reference holding that the case was
not falling in the category of rarest of rare cases.
12. While upholding the judgment and order of
conviction passed by the Trial Court, the High Court has
primarily relied upon the evidence of eye-witnesses,
PW14, PW4, PW5 and PW9 who were found to be
trustworthy and reliable. The High Court held that the
accused were sharing the common object of doing away
the deceased. However, from a perusal of the cross
examinations of PW4 and PW5, it appears that there was
personal enmity and PW3, PW4, PW14 were made
accused in a case of murder of Asfak, son of Sheikh
Samsul, appellant herein. PW14 had also filed a case
under Section 307 of IPC against the appellants two
years prior to the date of the incident which was still
pending.
13. Further, looking to the evidence given by PW9,
though not an eye-witness, the factum of assault with a
bomb on deceased Mohd. Asad was corroborated.
According to him he is also a witness to the seizure of
empty cartridge from Sheikh Ishteyaque.
14. Mr. Huzefa Ahmadi, learned senior counsel for
appellants contented that both the Courts below have
committed an error in convicting the appellants for the
offence punishable under Section 302 IPC, along-with
other accused. He submitted that there were material
improvements made by PW14 in his deposition when
compared to the fardbeyan given to the police on the date
of the incident and no specific role has been attributed to
the present appellants. But after careful analysis of the
fardbeyan (Ext.7), we have an entirely different opinion.
It is true that deposition is somewhere literally larger
than the fardbeyan, however, it is no where contrary to
it. It may rightly be said that the deposition of PW14 is
merely elaborated form of statement recorded before the
police, with minor contradictions. Oral evidence of a
witness could be looked with suspicion only if it
contradicts the previous statement.
15. He further submitted that narration of the incident
by the deceased Asad to PW3, as stated by PW3, is only
to falsely implicate the present appellants. According to
him, such deposition is improbable since PW15 –
Investigating Officer of the case and PW12 did not
narrate that deceased had regained consciousness and
named the accused and no other witness was examined
to prove the fact that deceased regained consciousness
and most importantly no recovery of gun has been made.
Thus, the prosecution case is shrouded with reasonable
doubt. It was further argued that in the light of judgment
of this Court in the case of K. M. Ravi and Ors. Vs.
State of Karnataka, (2009) 16 SCC 337, the appellants
holding outside shop cannot be held guilty, wherein it
was held that “mere presence or association with other
members alone does not per se be sufficient to hold
everyone of them criminally liable for the offences
committed by the others unless there was sufficient
evidence on record to show that one such also indented toPage 12
12
or knew the likelihood of commission of such an offending
act.”
16. Reliance was further placed on the judgment of this
Court in Jodhan Vs. State of Madhya Pradesh, (2015)
11 SCC 52, wherein it was held in paragraphs 25 & 26
that if the testimony is of an interested witness who have
a motive to falsely implicate the accused then the Court
before relying upon his testimony should seek
corroboration in regard to material particulars. In
paragraphs 28 & 29 also it was held that the testimony of
the injured witness stands on a higher pedestal than
other witnesses and reliance should be placed on it
unless there are strong grounds for rejection of his
evidence. [See also Hem Raj and Ors. Vs. State of
Haryana, (2005) 10 SCC 614]
17. Finally, it has been argued by the learned senior
counsel appearing for the appellants that the
post-mortem report does not support the prosecution
story that injury was caused only by a powerful bomb. It
was submitted that both the deceased were not close toPage 13
13
each other and deceased Asad was running towards the
shop when a bomb was allegedly thrown at him. Other
accused were standing with guns in their hands but they
did not share the common object and hence cannot be
held liable. In support of this, learned senior counsel
relied on the case of Bhim Rao and Ors. Vs. State of
Maharashtra, (2003) 3 SCC 37, wherein it was
observed:
“In the absence of any material to the contrary,
it should be presumed that those members of
the original unlawful assembly who only
shared the common object of assaulting
deceased Prabhakar cannot be attributed with
the subsequent change in the common object
of some of the members of the assembly who
entered the house of Prabhakar and caused
grievous injuries to him. So far as the present
appellants are concerned, who stood outside
the house of the deceased and who could not
have known what actually transpired inside
the house, the act of those members of the
original unlawful assembly who entered the
house, cannot be attributed, hence, as
contended by the learned counsel for the
appellants at the most these appellants will be
liable to be punished for sharing the original
common object which is only to assault the
deceased, therefore, they can be held guilty of
an offence punishable under Section 352 read
with Section 149 only.”Page 14
14
18. Mr. Ravi Bhushan, learned counsel appearing for
the respondent-State, on the other hand, supported the
order of conviction and sentence passed by both the
Courts below. He submitted that judgments cited by the
counsel for appellants have no point relevant to the
present case. The judgment given in the case of K. M.
Ravi (supra), is not relevant in whatsoever manner to the
present case, as in the present case, there was
facilitating the act of hurling of bombs by the other
accused persons as well as captivating the relatives of the
deceased so as to prevent them to come to his rescue.
This shows their active participation in the crime though
having overt act of merely holding guns outside the place
of occurrence.
19. It was further argued that the position cited in Bhim
Rao’s case (supra) is different from that of the present
case. PW14 and other witnesses present with him were
prevented from saving the victims while bombs were
hurled at the deceased. While relying upon the evidence
of PW4, PW5, PW6 and PW16 and other witnesses, it isPage 15
15
corroborated that after hurling of bomb by Shamsul and
Ashfaq the appellants fled away by firing in the air. One
of the appellants was caught with hot cartridge tied in his
lungi by PW-16 and this fact has been corroborated by
PW7, PW9, PW14, PW15 and PW16. Therefore, the
prosecution case leaves no room for doubt whatsoever
about the commission of offence by the appellants.
20. We have seen in the instant case that the witnesses
have vividly deposed about the genesis of the occurrence,
the participation and involvement of the accused persons
in the crime. The non-examination of the witnesses, who
might have been there on the way to hospital or the
hospital itself when deceased narrated the incident,
would not make the prosecution case unacceptable.
Similarly, evidence of any witness cannot be rejected
merely on the ground that interested witnesses
admittedly had enmity with the persons implicated in the
case. The purpose of recoding of the evidence, in any
case, shall always be to unearth the truth of the case.
Conviction can even be based on the testimony of a sole
eye-witness, if the same inspires confidence. Moreover,
prosecution case has been proved by the testimony of the
eye-witness since corroborated by the other witnesses of
the occurrence. We are constrained to reject the
submissions made on behalf of the appellants.
21. Keeping the facts and circumstances of the present
case in mind, we wish to emphasize the judgment of this
Court in Jodhan’s case (supra) and the relevant part of
the judgment is reproduced hereunder:
“On the bedrock of the aforesaid
pronouncement of law, the submission
canvassed by Mr. Sharma does not merit any
consideration inasmuch as the prosecution has
been able to establish not only the appellant’s
presence but also his active participation as a
member of the unlawful assembly. He might not
have thrown the bomb at the deceased, but
thereby he does not cease to be a member of
the unlawful assembly as understood within
the ambit of Section 149 IPC and there is ample
evidence on record to safely conclude that all
the accused persons who have been convicted
by the High Court had formed an unlawful
assembly and there was common object to
assault the deceased who succumbed to the
injuries inflicted on him. Thus analysed, the
submission enters into the realm of total
insignificance.”
22. In the instant case, the witnesses, as the High
Court has found and we have no reason to differ, are
reliable and have stood embedded in their version and
remained unshaken. They have vividly deposed about the
genesis of occurrence, the participation and involvement
of the accused persons in the crime and the injuries
inflicted on the deceased, and on each of them.
23. Thus, in the light of the above discussion, we are of
the view that the present appeals are devoid of merits
and the judgment passed by the High Court does not
warrant interference. These appeals are, accordingly,
dismissed.
…………………………………..J.
(Pinaki Chandra Ghose)
…………………………………..J.
(Ashok Bhushan)
New Delhi;
February 23, 2017.
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