STATE OF MAHARASHTRA versus AHMED SHAIKH BABAJAN & ORS.

9. The High Court, as noticed hereinabove, while affirm- ing the acquittal of A-1 toA-3, has disagreed with the Trial Court and has set aside the conviction of the respondents for offences under Section 456 read with Section 109 l.P.C as well. In re- versing the judgment, the High Court has relied on the following D circumstances – (i) though the FIR was lodged by PW-1, three hours after the occurrence and that too after consulting his fa- ther (PW-4) there is not a word in the FIR about the forcible occupation of the flat in question by accused A-4 and A-5; (ii) · since accused A-1 and A-2 were admittedly apprehended by the mob soon after the incident in which lndrajeet was assaulted and they remained in police custody thereafter, there was no possibility of their abetting the commission of offence by ac- cused A-4 and A-5; (iii) after the male members of the family had been apprehended and had been taken into custody by the police, the two female members of the family would not dare to forcibly occupy the flat; (iv) if the version of PW-5 is to be believed, accused A-4 and A-5 were detained by the police constable, who had taken them to the hospital with PW-6, the concerned constable was not examined to prove this fact. Hence G the present appeals.

10. Mr. Adsure, learned counsel appearing forthe State submitted that the High Court committed serious error in pass- ing impugned judgment without taking into consideration the fact that a day prior to the date of occurrence, accused A-1 to A-3 had threatened PW-4 (father of the deceased) of forcible eviction from the flat and assault on the deceased was in fur- – thera~nce thereof. Learned counsel asserted that insofar as ac- cused A-1 to A-3 are concerned, in addition to commission of offence under Section 456 read with Section 109 l.P.C., a clear t case for their conviction for offence under Section 304 Part-I, .1.P.C. is made out. It was argued that the testimony of PW-5 and PW-6, coupled with the fact that there was no cross exami- nation of the said witriesses in regard to the presence of ac- cused A-4 and A-5 in the flat, was sufficient to establish the c case against the accused. It was also contended that accused A-4 and A-5 committed the offence in furtherance of instigation by the male members of the family, namely, accused A-1 to A-3 and, therefore, all of them were rightly convicted for offences punishable under Section 456 read with Section 109 l.P.C.

11. Learned counsel appearing on behalf of respondents No.1, 2, 4 and 5, on the pther hand, submitted that PW-2_having been declared hostile and presence of PW-1 at the time and place of occurrence having been doubted by both the courts · below and in the absence of any other public witness, particu- larly when accused A-1 and A-2 are alleged to have been ap- prehended by the mob, the prosecution has failed to prove the involvement of accused A-1 to A-3 in the incident of assault on the deceased. It was also urged that there is no evidence on record to prove that any of the accused had forcibly enter:ed in the flat, belonging to accused A-1 and thereby committed house t breaking by night so as to attract Section 456 l.P.C. It was also argued that failure to mention anything about forcible occupa- f tion of the flat in the FIR by PW-1, who claims to have met ac- cused A-4 and A-5, by itself, is fatal to the prosecution case G against all the accused. Lastly, it was pleaded that accused A- 4 ahd A-? being ladies and the incident having taken place as -far back as in the year 1989, a lenient view may be taken against them.

12. Before examining the rival stands with reference to the evidence adduced by the prosecution, the scope of our ju- ST.L\TE OF MAHARASHTRA v. AHMED SHAIKH BABAJAN & ORS. [D.K. JAIN, J] risdiction to deal with appeals by special leave against a judg- ment of acquittal by the High Court needs being noticed. T~ue it is that Article 136 of the Constitution invests this Court with a plentitude of plenary appellate power over all courts and tribu- nals in India but a conspectus of a series of decisions shows that this Court has set for itself certain limits. within which the power under the said Article is to be exercised. It is the estab- lished p~actice of this Court that power under Article 136 is in- voked in very exceptional circumstances, when the approach of the lower courts is vitiated by some manifest illegality or the conclusion recorded is such which could not have been possi- bly arrived at by any court acting reasonably and judiciously .. Nevertheless, even within the restrictions imposed, this Court has undoubted power to interfere even with findings of fact, making no distinction between a judgment of acquittal and con- viction, though in a case of acquittal ordinarily the Court does not interfere with the appreciation of evidence or of findings of D fact, more so because the presumption of innocence of the ac- cused is further reinforced by his acquittal, unless the High Court "acts perversely or otherwise improperly". (See: The State of Madras Vs. A. Vaidyanatha lyer1; Himachal Pradesh Admin- istration Vs. Shri Om Prakash 2 ).

13. In so far as the jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is con- cerned, referring to the aforenoted decisions in Arunachalam Vs. PS.R. Sadhanantham & Anr 3 , 0. Chinnappa Reddy, J. went on to observe as follows: "In dealing with an appeal against acquittal, the·Court will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, also, the Court will not abjure its G duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative: Where the acquittal is bas~d on irrelevant ground, or where the High Court allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial Court is rejected by the High Court after a perfunctory consideration, or where the baneful approach of the High Court has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this Court may feel obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were."

14. Recently, in Chandrappa & Ors. Vs. State of Karnataka4 referring to almost the entire law on the point, one of us (C.K. Thakker, J.) has culled out the following general prin- ciples regarding powers of the appellate court while dealing c with an appeal against an order of acquittal:- ''(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 'i 97j puts" no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of layv. (3) Various expressions, such as, "substantial and compelling reasons" "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail .. extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance bf an appellate court to interfere _with acquittal than to curtail the power of the court to review l the evidence and to come to its own conclusion. · (4) An appellate court, however, must bear in mind that in case of ~quittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasona.ble views are possible on the basis of B evidence on record and one favourable to the accused has been taken by the trial court, it oughlt not to be disturbed by the appellate court."

15. Bearing the afore-noted. principles in mind, we shal1I now examine whether the present case calls for interference. We may note at the outset that in so far as the first part of the incident, viz., assault on the deceased is concerned, the pros+ ecution examined only PW-1 and PW-2, as eye witnesses to the incident. PW-2 (Su nil Salvi), the sole independent witness 0 did not support the prosecution version, in as much as he did .not claim to have seen the occurrence in which the deceased was assaulted. In fact, in his deposition he stated that he came soon after the assault and PW-1 came even later. Thus, his tes- timony casts serious doubt on the presence of PW-1 at the spot at the time of occurrence. The Trial Court as well as the High Court have noticed many inconsistencies in the evidence of PW- 1 and PW-2. It has also been observed that no member of the crowd which had gathered there, have been examined by the, prosecution. Having regard to the evidence on record, we do not find any ground to interfere with the concurrent findings re- corded by both the Courts below in reaching the conclusion that a case for conviction of the respondents under Section 302/34 l.P.C. is not made out. In view of the evidence on record, we find it difficult to accept the alternative contention of learneQ coun- sel for the State that an offence under Section 304 Part-I l.P.C. is made out against accused A-1 to A-3. Accordingly, we affirm the decision of the Courts below on the point.

16. However, as regards the offence under Section 456 l.P.C., since the Trial Court, on consideration of evidence be-' fore it, had convicted all the accused for the said offence and the High Court has reversed the order of conviction, we pro- pose to delve on this aspect of the matter in a little greater de- tail. .

17. As· noted above, the first and the foremost circum- B stance, which has weighed with the High Court for acquittal of all the accused for offence under Section 456 l.P.C. is that al- though the FIR was lodged by PW-1 more than three hours af- ter the occurrence and after due discussion with his father (PW- 4 ), yet the factum of forcible occupation of the flat by accused C · A-4 and A-5 did not find mention in the FIR. The High Court has observed that having admittedly met his mother (PW-6), father (PW-4) and brother Harvinder Singh in the Cooper Hospital and lodged the FIR thereafter, it was difficult to believe that if PW-1 had seen accused A-4 and A-5 occupying the flat possessed D by his family, this fact would not have been mentioned in the FIR.According to the High Court, it was not a case of mere omission, but a case where the very fact constituting the of- fence was absent from the FIR, the earliest version of the oc- currence.

18. The First Information Report is a report relating to the commission of an offence, given to the police and recorded by it under Section 154 of the Code of Criminal Procedure, 1973 (for short the "Cr.PC"). Though, as observed by the Privy Coun- cil in Emperor Vs. Khwaja Nazir Ahmad5 , recording' of a First Information Report is not a condition precedent to the setting in motion of the criminal investigation yet from the view point of -tQ.e investigating authorities it conveys to them earliest informa- tion regarding the circumstances in which the crime was com- mitted; the names of the culprits and the role played by them as G well as th~ narpes of the witnesses present at the scene of oc- currence, so vital for effective and meaningful inve§.tigation. The information about an occurrence can be given by any person knowing about the commission of such an offence and not nec- essarily by an eye witness.

Commem.i.Qg on the object, value . H and use of first Information Report, in Sheikh Hasib alias Tabarak Vs. The State of Bihar6, a three-Judge Bench of this A Court had observed as under:- "The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The first information report, we may point out, does not constitute substantive evidence though its importance as conveying the earliest information regarding the occurrence cannot be doubted. It C can, however, only be used as a previous statement for the purpose of either corroborating its maker under Section 157 of the Indian Evidence Act or for contradicting him· under Section 145 of that Act. It cannot be used for the purpose of corroborating or contradicting other witnesses." D 19.

Apart from the fact that lodging"of information under Section 154 Cr.PC keeps the District Magistrate and the Su- perintendent of Police informed of the occurrence and when recorded, is the basis of the case set up by the.informant and provides material to the police to commence investigation, its fundamental object is that it acts as a safeguard against em- bellishment, exaggeration and forgetfulness. True, that it is not the requirement of law that every minute detail of the occurrence needs to be recorded in the First Information Report and as observed by this Court in State of A.P Vs. G.olconda Linge Swamy & Anr 7 that the FIR is not intended to be an encyclope- dia of the background scenario. Nevertheless, having regard to the fact that it is one of the modes by which a person ag- grieved sets the criminal law in motion, it must disclose the com- mission of an offence. Though it is trite that the First Information G Report does not constitute substantive evidence and can, strictly speaking, be only used as a previous statement for the pur- pose of either corroborating or contradicting its maker, yet omis- sion of material facts pertaining to the crime is undoubtedly rel- evant in judging the veracity of prosecution case. ·· 20. In the present case, admittedly in the First Information Report lodged by PW-1, a law student, more than three hours after the alleged occurrence, therewas no complaint of house breaking and occupation of the flat by accused A-4 and A-5 when he claims to have met them at the flat and had an alterca- tion. In his cross-examination, when questioned on the omis- sion to mention the fact of forcible occupation of the flat by ac- cused A-4 and A-5, he stated as under: "At the time of recording of my complaint I was giving true and detailed account of all incidences regarding the visit · C of 24.4.89, 25.4.89, 26.4.89 and threats of dispossession and in the last of my complaint I deposed about the incident of assault in which lnderjeet Singh died.

Therefore my F.l.R. is in detail on that behalf. ·However, name of two ladies accused nos.4 and 5 was not given out in my complaint against them for having trespassed in the flat immediately after the incident when I had gone to see my father. I cannot assign reason for such omission."

21. It is also pertinent to note that in his cross-examina- tion, he also stated that when his further statement was recorded on 291h April, 1989, i.e. two days after the occurrence, even then he did not disclose the fact that accused A-4 and A-5, viz., Asmabi and Rahimabi, had broken open their flat and had oc- eupied it with a kid. He simply stated that "I cannot assign any reas'i9JJ to omit their names as persons taking unlawful occupa- tion in the 1ouse immediately after the occurrence. This might be due to sr101Sk and tragedy we had faced on that date, which continues today. ts~Je I met my father, I did not make report of the occurrence to the police, although police and police offic- ers were present in the Cooper b.to~pital". It is, thus, manifest G that the informant (PW-1) was not ableio gi\le any reasonable explanation for the significant omission on his part. We feel that the evidence of PW-1 is tainted with certain embellishments.

22. Furthermore, even in the evidence of Bhagwant Singh, PW-4, the father of the deceased and PW-1, there is not even a whisper about the forcible occupation of their flat by accused A-4 and A-5 although admittedly even before lodging the FIR, PW-1, his father and his mother (PW-6) had already met. We find it difficult to believe that their flat having been allegedly bro- ken open and occupied by accused A-4 and A-5, it was an in- significant fact worthy of discussion amongst the family mem- bers. It is also pertinent to note that PW-3, (Smt. Najma) a neighbour of Anands, who was examined by the prosecution to prove that the accused had borrowed a hammer and screw- driver used by them for breaking open the latch of the flat, did not support the prosecution version. Besides, as also noted by c the High Court that although as per the prosecution version ac- cused A-4 and A-5, on the asking of the police constable, who had visited the flat, had accompanied him to the police station, this fact was not proved by examining the constable concerned. All these circumstances, in our judgment, not only take the bot- to.m off the prosecution story, they are sufficient to throw con- siderable doubt on its truthfulness and the veracity of evidence of PW-1-an eye witness complainant and knowing accused A-4 and A-5, rendering it unsafe to base the conviction of the accused upon it.

23. Under these circumstances, in our opinion, the High Court was fully justified in holding that the omission to mention the fact regarding the occupation of flat by accused A-4 and A- 5 in the First Information Report, was a very important circum- stance, fatal to the case of the prosecution.

24. Now, what remains to be considered is whether con- viction of the respondents for offence under Section 456 l.P.C. can be recorded on the basis of the evidence of two closely related witnesses viz. PW-5 and PW-6, sister and mother re- spectively of the deceased. In their testimony, which is on simi- lar lines, they have stated that when they returned to their flat in the night of 27'h April, 1989, they found the door of the flat open and accused A-4 and A-5 present there along with a kid and when they entered the flat, their luggage was thrown out by the said accused. They have also stated that when a constable came H to the flat and enquired about the mother of the deceased, they ~ had shown to him the damaged latch and bolt at the entrance. The constable asked both the accused and PW-6 to follow him and all of them went to the police station.

25. In Hari Obula Reddy & Ors. Vs. The State of Andhra Pradesh 8 while dealing with the question whether the evidence c of an interested witness can form the basis for conviction even without corroboration by an independent evidence, a three- 'r judge Bench of this Court, speaking through R.S. Sarkaria, J. had laid down that: "Interested evidence is not necessarily unreliable evidence. Even partisanship by it?elf is not a valid ground for discrediting or rejecting· sworn testimony. Nor can it be laid down as an: invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is n,ecessary is that the evidence of 1 ,.,. interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If ~ the answer to these questions be in the affirmative, and the evidence of the witness appears to. the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since A perfection is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the s: circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. However, these are only broad guidelines which may often be useful in assessing interested testimony, and are not C iron-cased rules uniformly applicable in all situations." · 26.

Very recently in Ashok Kumar Chaudhary & Ors. Vs. State of Biha~ this Court had the occasion to deal with the ques- tion of creditworthiness of the evidence of relatives of the vic- tim. On a review of several decisions on the point, including D Oalip Singh Vs. State of Punjab 10 , Masalti Vs. State of UP 11 and Rizan & Anr. Vs. State of Chhattisgarh, through The Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh 12 it has been observed that though the Court has to scrutinize such evi- dence with greater care and caution but such evidence cannot E be discarded on ihe sole ground of the interest of such witness in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be char- acterized as an "interested" witness. The term "interested" pos- tulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.

27. In Namdeo Vs. State of Maharashtra 13 , one of us (C.K. G Thakker, J.) has said that a close relative cannot be character:- ized as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinized carefully. If on such scru- tiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on HI the 'sole' testimony of such witness. Close relationship of wit- ness with the deceased or victim is no ground to reject the evi- dence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.

28. Having considered the evidence of PW-5 and PW-6 in the light of the legal position enunciated in the aforementioned decisions and bearing in mind the.fact that PW-3, who was ex- amined by the prosecution to prove the vital fact that accused A-4 and A-:-5 had borrowed the hammer and screw driver from her, being a neighbour of the complainant has not supported the version of the prosecution, the testimony of the said two witnesses cannot be said to be intrinsically credible. Moreover, having regard to the fact that neither in the FIR nor in the state- ment of PW-1, recorded two days after the occurrence, he had D stated the fact of house breaking, in our opinion, it will be haz- ardous to rely solely on the uncorroborated evidence of PW-5 and PW-6 to convict the accused under Section 456 l.P.C. Evi- dently, having lost their son/brother, allegedly on account of beat- ing by accused A-1 to A-3, there was every reason for them to be inimical to the accused. They were keen to see that all of them were convicted.

29. For the aforesaid reasons, we are convinced that the view of the High Court in discarding the evidence of PW-5 and PW-6, does not suffer from any infirmity. In that view of the mat- ter and in the absence of any other evidence on the issue, the order of the High Court acquitting all the accused of the offence under Section 456 l.P.C. does not suffer from any illegality war- ranting interference.

30. Consequently, all the appeals, being bereft of any merit, fail and are dismissed accordingly. S.K.S. Appeals dismissed.