THE SUPREME COURT OF INDIA
Abdul Wahid & Anr. v. State of Rajasthan
Criminal Appeal No. 722 of 2012
Judgement Date 28-02-2025
Pankaj Mithal, Ujjal Bhuyan JJ
HEADNOTE WITH FULL TEXT JUDGEMENT
CRIMINAL LAWS
Murder – Evidence of PW1, an eyewitness and the informant in the case – His evidence suffers from severe inconsistencies, contradictions and credibility issues – According to PW1 he along with Ahsan Ali (deceased) went to later’s in-laws’ house, deceased was talking to his relatives, when PW1 saw Abdul Wahid and Abdul Shakur – Since PW1 was aware of enmity between deceased and accused, he advised the deceased to take another route on their return, but deceased refused – On way back seven person attacked the deceased including Abdul Wahid, Babu and Abdul Shakur, Aziz @ Patti, Latur Ali etc. – Babu inflicted stab wound on stomach, Abdul Wahid stabbed him in chest, Aziz and Abdul Shakur tried to attack PW1, but he escaped – Police station was 200-300 metres away but he did not go to police station- Involvement of PW1 in 3-4 criminal cases, admitted by him – He was presented as a witness in another criminal case against Aziz in a unrelated matter – He was a stock witness and often used by police alleged – PW1 had a motive to falsely implicate the accused, as he was employee and relative of the deceased – There are contradictions/inconsistencies in his testimony – Initially he stated that Ahsan was stabbed before falling from motorcycle, later he contradicted himself stating that deceased fell from motorcycle first then he was stabbed – If deceased was stabbed before falling, there should have been blood on motorcycle – PW1 claimed that 100-150 people witnessed the assault put surprisingly none including PW1 came forward to rescue or reported the crime – PW17 (Station House Officer) found no bystanders, when he visited the crime scene, contradicting the claim of PW1. Held on facts it raises serious doubts on presence of PW1 at the crime scene. Further absence of independent eyewitness weakens the PW1’s credibility
HELD
Let us now briefly analyse the evidence of the prosecution witnesses as alluded to hereinabove. Coming first to the evidence of PW-1, his conduct appears to be highly unusual. When the police station was only 200 meters away from the place of crime, instead of rushing to the police station to save himself and also to inform the police about the assault on Ahsan, he goes into the lane of Gauri Hotel and hid himself there. He did not raise any alarm either. PW-1 contradicted himself by first saying that Ahsan was injured by the knife blows before he fell down from the motorcycle but in the same breath, he goes on to say that Ahsan was stabbed after he fell down. He also deposed that there were about 100 people in and around the crime scene but none came to the rescue of Ahsan which is also quite unusual. Besides being entangled in several criminal cases, it has also come on record that he is a stock witness of the police to depose in favour of the police in other cases including in a case where one of the present accused persons Aziz @ Patti was an accused. Evidence of such a witness without further corroboration cannot form the basis to convict an accused. (Para 18)
Evidence of PW4 – Inconsistencies and discrepancies in his statement – According to him he along with PW3 went to have tea and panmasala – They went to Ghantaghar after deceased and PW1 left – They heard a sound of motorcycle approaching being driven by deceased with PW1 as a pillion rider – If he left, after deceased, how did they reach Ghantaghar before deceased remained unexplained – He saw 8-9 persons mounting attack on deceased – 100-150 persons witnessed the assault, but he did nothing to rescue the deceased nor raised any hue and cry – He neither went to police station nor took the deceased to hospital – During cross examination he contradicted himself by saying that he saw a crowd of 100 to 150 people saying that a man had been killed. Held it means he did not witness the crime. (Para 19)
Murder – Inadequacies in investigation – Motorcycle driven by deceased not seized – PW17 (SHO) did not see any blood stains on front wheel, petrol tank or seat – Hence this finding contradicts PW1’s claim that deceased was stabbed before falling from motorcycle – No collection of blood samples from the crime scene by PW20 (IO) for forensic analysis – Hence it could not be determined whether blood found in the crime scene matched with deceased’s blood – According to PW17 no matorcycle was present at the crime scene when police arrived – Though as alleged by PWs 1, 3, 4, that 100-150 persons were present but when PW17 went to the place of occurrence, none found – Further assault took place only 300-400 metres away from police station, but policemen did not hear any noise – ASI took the deceased to hospital, but PW1 not accompanying him – According to PW1 he took motorcycle to police station as directed by ASI though it is the duty of police personnel- On receipt of FIR, according to PW17 he sent ASI and police team to the place of occurrence, but when got information about deceased lying injured, he went and took the injured to hospital – No information where PW1 went as he neither accompanied the deceased nor he said so. Held investigative failure undermined the prosecution’s case as crucial evidence that could have linked the accused to the crime was missing or mishandled. The lack of forensic proof and contradictions in statements of witnesses, further weakened the reliability of the prosecution’s narrative.
HELD
Though PW-17 and PW-20 stated about the recovery of the weapons on the basis of information given by the accused persons, the manner in which the recoveries were made and the circumstances surrounding the recoveries made the recoveries highly suspect. That apart, the alleged recoveries were made after several days of the incident and no bloodstains etc. were found on the weapons. PW-15, the doctor who had conducted the post-mortem examination, deposed in his evidence that the seized weapons were not shown to him. As a matter of fact, the knives etc. were also not produced in court. Besides, all the seizure witnesses turned hostile. Therefore, Section 27 of the Evidence Act cannot come to the aid of the prosecution. Moreover, the clothes of the accused were not seized and sent for forensic examination to find out whether there were any bloodstains. Such examination would have revealed whether there were any bloodstains on the clothes; whether those bloodstains were of human blood; and whether those matched the blood of the deceased. (Para 21)
It has also come on record that while according to PW Nos.1, 3 and 4 there were about 100 to 150 people at the crime scene, when PW-17 went to the place of occurrence immediately after lodging of FIR, he did not find anyone there. That apart it is quite unnatural that the policemen in the police station did not hear any noise when such a gruesome assault had taken place only about 300 to 400 steps away from the police station. Certainly, Ahsan would have screamed on being so brutally assaulted. In fact, it has come on record that the accused persons had yelled warning the crowd not to interfere. It is therefore quite inconceivable that the inmates of the police station would not have heard the commotion from so near a place. If there were indeed 100 to 150 people present, they would not have remained a mute spectator to such a gruesome assault. But this narrative of there being a crowd at the crime scene has been proved false through the evidence of PW-17 and PW-20 who deposed that when they reached the crime scene minutes after the incident after lodging of FIR, they did not find anybody there and that there was all pervading silence. (Para 22)
Another significant material inconsistency has come to light from an analysis of the evidence of PW-1 and PW-17. According to PW-1, it was the ASI who had taken the injured Ahsan to the hospital in an auto rikshaw. It is very unusual that PW-1 did not accompany the injured Ahsan to the hospital. Instead, he said that he was asked by the ASI to take the motorcycle to the police station. This is also not at all believable because if at all the motorcycle was required to be taken to the police station for investigation, it would have been taken by policemen and not by PW-1. On the other hand, PW-17 in his evidence stated that he had sent ASI Ram Prasad alongwith a team of policemen to the place of occurrence on receipt of the FIR. When he received further information that Ahsan was lying injured, he went to the spot himself and took the injured to the hospital leaving a constable behind to guard the crime scene. Where did PW-1 go? PW-17 did not say that PW-1 accompanied him to the hospital; neither did PW-1 say so. Such glaring inconsistency clearly impeached the very credibility of PW-1 and has cast a deep shadow over the prosecution case. (Para 23)
Murder – Death homicidal – According to prosecution accused are guilty of murdering deceased. Held it is for prosecution to connect the accused to the murder of deceased by tendering credible and legally admissible evidence. No material is connect the accused with the crime. Hence appellants are entitled to benefit of doubt. (Para 24)
CASES REFERRED
:
- Narendrasinh Keshubhai Zala v. State of Gujarat [2023 SCC OnLine SC 284] (Para 7.4.)
- Anil Phukan v. State of Assam [JT 1993 (2) SC 290] (Para 7.1.)
UJJAL BHUYAN, J.
- This judgment and order will dispose of Criminal Appeal Nos. 722 and 1266 of 2012.
- Criminal Appeal No. 722 of 2012 arises out of SLP (Crl.) No. 1764 of 2012 filed by Abdul Wahid and Babu (appellants herein). In this appeal, challenge has been made to the judgment and order dated 26.08.2011 passed by the High Court of Judicature for Rajasthan at Jaipur Bench (for short ‘High Court’ hereinafter) in D.B. Criminal Appeal No. 639 of 2003 whereby the High Court has upheld the judgment and order dated 10.03.2003 passed by the learned Additional Sessions Judge No. 4, Kota (‘trial court’ for short) in Sessions Case No. 13/1996 convicting the appellants under Sections 302/148 of the Indian Penal Code, 1860 (IPC). However, the High Court modified the conviction by holding the accused guilty of the offence punishable under Section 302 with the aid of Section 149 IPC while maintaining the sentence of life imprisonment.
2.1. Criminal Appeal No. 1266 of 2012 has been filed by Abdul Shakur (appellant herein) against the aforesaid judgment and order of the High Court dated 26.08.2011 affirming the judgment and order of the trial court and convicting the appellant under Sections 302/149 IPC and sentencing him to undergo imprisonment for life.
2.2. So the 3 appellants are Abdul Wahid, Babu and Abdul Shakur.
- Since Criminal Appeal No. 722 of 2012 was argued as the lead appeal, facts narrated therein are referred to hereunder, though both the appeals arise out of the same incident and the same judgment of the High Court.
- Faeem Ahmed lodged first information before the Maqbara police station, Kota, Rajasthan on 25.06.1988 at about 12:35 AM. He stated therein that Ahsan Ali and himself were on way to the residence of the in-laws of Ahsan Ali in Nayapura around 10:40 PM. While Ahsan Ali was talking to his relatives in the shop of his brother-in-law, he was seen by accused Abdul Sattar and Abdul Wahid. This was noticed by Faeem Ahmed who knew them and also about the strained relationship between Ahsan Ali on the one hand and Abdul Sattar and Abdul Wahid on the other hand. He suggested to Ahsan Ali that while returning home, they should change the route. However, Ahsan Ali insisted on going through the same route by which they had come. While returning, when they reached the place called Ghantaghar at around 12 midnight, suddenly accused Babu, Abdul Wahid, Abdul Sattar, Aziz @ Patti, Abdul Shakur, Bundu and Latur Ali accosted them and attacked Ahsan Ali and himself with knives etc. The first knife injury was inflicted by Babu on the stomach of Ahsan Ali whereafter he fell down from the motorcycle; the second injury was inflicted by Abdul Wahid on the chest of Ahsan Ali, also by knife; Abdul Sattar inflicted injury by a katar (sword) on the backside of Ahsan Ali. Abdul Shakur and Aziz @ Patti who were also trying to inflict injuries on Ahsan Ali, chased the informant Faeem Ahmed. He ran into the Gauri Hotel lane. When the said two accused persons did not find Faeem Ahmed, they returned back and started assaulting Ahsan Ali.
4.1. Informant somehow managed to escape and went to the police station to lodge the first information. He stated that Ahsan Ali was lying at the place of occurrence in an injured condition. The incident was witnessed by Wahid (brother-in-law of Ahsan Ali) and Jameel. He alleged that due to previous enmity, the above named 7 accused persons i.e. Babu, Abdul Sattar, Abdul Wahid, Abdul Shakur, Aziz @ Patti, Bundu and Latur Ali alongwith Jaffar Mohammad formed an unlawful assembly whereafter they assaulted Ahsan Ali with a murderous intent.
4.2. On the basis of the first information, FIR No. 48/1988 was registered on 25.06.1988 under Sections 147/148/149/307 IPC. Injured Ahsan Ali was taken to the hospital for treatment but he succumbed to his injuries whereafter Section 302 IPC was added to the FIR.
4.3. Police carried out the investigation and on completion of the same, filed chargesheet against the 8 accused persons under Sections 147/148/149/302 IPC. Since it was sessions triable, the case was committed to the Court of Sessions whereafter charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried.
4.4. Prosecution examined as many as 22 witnesses. On completion of the prosecution evidence, the accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) who denied the charge and alleged false implication. The defence also examined 3 witnesses. It may be mentioned that trial against 4 accused persons viz. Abdul Sattar, Bundu, Latur Ali and Aziz @ Patti abetted on account of their death. On conclusion of the trial, trial court vide the judgment and order dated 10.03.2003 acquitted accused Jaffar Mohammed of all the charges. The present 3 appellants Abdul Wahid, Babu and Abdul Shakur were convicted for the offence under Sections 302/148 IPC and sentenced accordingly.
- Aggrieved by the aforesaid conviction and sentence, the 3 appellants preferred appeal before the High Court. The High Court vide the judgment and order dated 26.08.2011 (impugned judgment) affirmed the judgment and order dated 10.03.2003 of the trial court with the modification that the conviction was under Sections 302/149 IPC. The sentence of life imprisonment imposed upon the appellants was maintained. The appeal was accordingly dismissed.
- In the first appeal, notice was issued by this Court in the related SLP on 24.02.2012. Leave was granted on 30.04.2012 and the 2 appellants, Abdul Wahid and Babu, were granted bail. In so far the second appeal is concerned, leave was granted on 16.08.2012 and vide order dated 07.12.2012, the appellant Abdul Shakur was granted bail.
- Learned counsel for the appellants submits that the courts below were not justified in convicting the appellants on the testimony of the sole eyewitness PW-1. After disbelieving the evidence of other witnesses presented as eyewitnesses by the prosecution, evidence of PW-1 has to be taken with a pinch of salt as he was a relative and an employee of the deceased. He is an interested witness and his testimony is not corroborated by any independent witness.
7.1. Learned counsel further submits that PW-1 is not a reliable and trustworthy witness in as much as in his cross-examination, he has admitted that he is a stock witness; police had produced him as a witness in the Babar Mushtaq case to depose falsely. Further, in his cross-examination he admitted that there are 3/4 criminal cases pending against him. Thus, he has got criminal antecedents. It is evident that PW-1 was being used by the police to nail the accused and, therefore, a great deal of suspicion hovers over his testimony. As such, it would be wholly unsafe to rely on the testimony of PW-1 to convict the appellants without any independent corroboration. In this connection, he has placed reliance on the decision of this Court in Anil Phukan v. State of Assam [JT 1993 (2) SC 290 : 1993 (3) SCC 282].
7.2. Learned counsel for the appellant has also cast aspersions on the FIR contending that though the same was registered on 25.06.1988 around midnight (12:30 PM), it was forwarded to the concerned magistrate only two days thereafter on 27.06.1988.
7.3. Referring to the testimony of the investigating officer PW-17, learned counsel submits that the said witness admitted in his cross-examination that the motorcycle on which the deceased was travelling alongwith PW-1 when he was allegedly attacked by the accused persons was never seized; the blood soil sample from the place of incident was not collected by the investigating officer and, therefore, could not be subjected to forensic examination. He also submits that the knives and katar allegedly used by the appellants to assault the deceased and recovered pursuant to confessional statements of the accused persons were never produced in court. As a matter of fact, all the witnesses to the alleged recovery of weapons turned hostile stating that they had put their signature on being forced by the police.
7.4. Learned counsel also submits that PW-1 in his evidence stated that appellant No. 2 had inflicted a stab wound on the stomach of the deceased. But in the postmortem report, no such injury was found either on the stomach or in the abdominal region. PW-15, the doctor who had conducted the postmortem examination, deposed in his cross-examination that the weapons used in the offence i.e. knives and katar were not shown to him. Further PW-15 stated in his crossexamination that all the injuries from injury No. 1 to injury No. 8 could well be inflicted by only one weapon as the injuries were of the same nature. In this connection, reliance has been placed on the decision of this Court in Narendrasinh Keshubhai Zala v. State of Gujarat [2023 SCC OnLine SC 284].
7.5. High Court had rightly rejected the evidence of PW-2, PW-3, PW-4, PW-5 and PW-8 as their depositions did not inspire the confidence of the court. The aforesaid witnesses displayed unnatural conduct by not taking the deceased to the hospital when he was in an injured condition even after the assailants had left the place of occurrence. They did not rush to the police station either, though it was so nearby. Such conduct raises grave doubts about the presence of the aforesaid witnesses at the time of the incident.
- Per Contra, learned counsel representing the respondent State submits that both the trial court as well as the High Court had carefully analysed the entire evidence on record and thereafter convicted the appellants under Sections 302/149 IPC. The impugned conviction and sentence do not suffer from any legal infirmity to warrant interference under Article 136 of the Constitution of India.
8.1. Learned counsel submits that PW-1 Faeem is an eyewitness to the incident. It is he who had lodged the FIR where he named the appellants as accused. FIR was lodged very promptly without the slightest delay.
8.2. There is complete consistency between the ocular evidence of PW-1 and the medical evidence. The ocular evidence of PW-1 clearly states that the appellants had given knife blows in the chest and in other parts of the body which were also indicated in the postmortem report. Such sharp injuries caused the death of the deceased.