Holding

The Supreme Court held that the High Court correctly rejected the trial court's acquittal, upheld the conviction on the basis of reliable eye‑witness evidence, and dismissed the appeal.

Summary

The appellants Chand Khan and Shabbu were charged with murder, assault and related offences arising from a night‑time attack on Shah Alam and others on 26 May 1977. The trial court acquitted all nine accused, disbelieving the testimony of four eye‑witnesses, but the Allahabad High Court set aside the acquittal and convicted the two appellants on the basis of that eye‑witness evidence. The appellants appealed to the Supreme Court, contending that the High Court erred in rejecting the trial court's findings, that lack of a proven motive and the failure to seize the alleged knife should have led to acquittal, and that the principle "falsus in uno, falsus in omnibus" applied. The Supreme Court held that the High Court was justified in overturning the acquittal, finding the eye‑witness testimony reliable, that motive is not essential where the evidence is convincing, and that the failure to produce the weapon does not create a presumption against the prosecution under Sec. 114(g) Evidence Act. Consequently, the appeal was dismissed and the convictions upheld.

Issues considered

The High Court's power to overturn a trial court's acquittal based on eye‑witness testimony.
Whether the absence of a proven motive defeats the prosecution's case.
Whether failure to seize the alleged weapon warrants a presumption against the prosecution under Sec. 114(g) of the Evidence Act.
The applicability of the maxim "falsus in uno, falsus in omnibus" in criminal trials.
Whether the trial court erred in disbelieving the eye‑witnesses and relying on conjecture.

Legislation cited

Code of Criminal Procedure, 1973s. 313, s. 379
Indian Evidence Act, 1872s. 114(g)
Indian Penal Code, 1860s. 147, s. 148, s. 302/149, s. 323/149, s. 324/149, s. 325/149, s. 452

Subjects

murderculpable homicideassaulteye‑witness testimonyevidence lawpresumption under Sec 114(g)lack of motivefalsus in uno falsus in omnibuscriminal appealconviction upheld

Judgment

A CHAND KHAN & ANR.
v.
STATE OF UTTAR PRADESH

JULY 11, 1995

B [DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.J

!11dia11 Penal Code 1860--Ss. 452, 148, 302/ 149, 325/ 149, 324/ 149,
323/149-IPC-M!lrdcr-{}nlawflll assembly-Grievolls hwts--Trial of 9 ac-
Cllsed-f'our eye witnesses disbelieved-Acquittal of all-Appeal to High
C Coltlt-Four eye witn.esses-One of them causing lutn and injwy to one of
the accused-Hence High Cowt believed evidence of eye witnesses--Omvict-
ing 5 accused-Validity of

Evidence Act 1872.

D S.114 (g) Failure to collect evidence-Failure to prod!lce eyidence--
Presumption by Collrt.

Legal Maxims.

Fals11S in ltlW, falsus in om11iblls-Applicability of
E
According to the prosecution P.W. 6 and the deceased were business
partners and P.W. 7 joined them as a worker. Appellants along with
another accused came to P.W. 6 on 26.5.1977 at about' 1 p.m. and assaulted
him when he rerused to release P.W. 7 who was earlier working with them.
F P.W. 6 liled a complaint with the police. On the same night the appellants
with seven others came to the house ·or the deceased who was sitting with
his friends and P.W.2. The accused were armed with knives and gandasa
and at once assaulted the deceased and others. Hearing their cries P.W. 1
and P.W. 4 came to the site. Appellants entered the kitchen and assaulted
P.W. 5 and received blow or a knire when tried lo attack her mother. While
G Reeing away one or the Appellants thrust the knife on the neck or the
I

deceased. Deceased was admitted to and died in hospital. FIR was lodged
immediately by P.W. 1 mentioning the injury received by one or the
Appellants besides members or the complainant's family viz. P.W. 1 and
P.W. 5, the neighbour P.W. 4 and P.W. 2, a friend of the deceased, ·
H witnessed the incident.
848
CHAND KHANv. STATEOFU.P . 849

. The police investigation culminated in the trial of all the 9 accused A
persons.

The Trial Court acquitted all the accused persons disbelieving the
four eye witnesses as unworthy of any credit.

The High Court in an appeal filed by the State found the appellants B
and three others guilty and convicted them for the offences under Ss.452,
-, 148, 325/149,324/149,323/149. The High Court also convicted the appellants
for the offence under section 302/149 and sentenced them to life imprison-
ment.

The Appellants filed the present appeal under Section 379 of Cr. P.C. C
invoking their statutory right.

It was contended on behalf of the appellants that :(1) the High Court
was not justified in interfering with the evidence even if another reasonably
possible view of the evidence in favour of the prosecntion might be taken.
The incident that took place in the afternoon in which p.w. 6 was assaulted D
by the Appellant might have been a motive for the former to assault the
latter and not vice-versa. And the assault on P.W.5 and appellant inside the
house was patently false because neither any blood was found nor any knife
was recovered by the Investigation Officer.
E
Dismissing the appeal, this Court

HELD : 1. The High Court found the evidence of the four eye witnesses
,... examined by the prosecution namely P.Ws. 1, 2,4, and 5 convincing and the
reasons given by the trial Court for disbelieving them and discarding the
case were perverse. The High Court co1nmitted no error or injustice in p
interfering with the order of acquittal for it has noticed all the salient
features of the case in the judgment of the trial court, discussed them well
and disapproved them for cogent and justified reasons. (855-A, CJ

2. Proof of motive is not essential for success of a prosecution case

., where the ocular testimony in support of it is convincing and reliable. G
[856-A]
3. It was. imperative fur th~ trial court to consider the case of the
individua1 accused· on their respective merits in the light of other evidence
on record and not to outright reject the evidence of the witnesses in its
entirety for the reason that princ1j1le of Falsas in uno, falsus in oninibu; H
850 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A does not apply to criminal trial and it is the duty of the court to disengage
the truth and falsehood. [858-F-G]

4. P.W. 2 and two more friends of the deceased were present at the
material time as testified by the four eye witnesses was admitted by the
defence. It was also admitted that besides the deceased the above three
B persons as well as lady members ol the house sustained injuries. However,
according to them, they had beaten the deceased and other male members
in exercise of their right of private defence and the ladies sustained simple
injuries as they had then come out of the house. The Trial Court therefore,
was not at all justified in disbelieving even the presence of P.W. 2 and two
C more friends of the deceased at the spot. Then again, keeping in view the
fact that the injuries sustained by P.W. 5 could be caused by a sharp edged
weapon only and it being nut the case of the defence that they had with
them any such weapon the finding of the trial court that P.W. 5 and
sister-in-law of' the deceased had accidentally sustained their injuries must
be said to be based on conjecture only. [857-D-F]
D
5. The best corroborating piece of evidence is furnished by FIR which
was lodged by P.W. 1 on the basis of what he heard from P.W. 5.Jn the FIR
which was lodged within 2 hours of the incident, the subtraction of the
entire prosecution case finds place including a statement that during the
E incident P.W. 5 had in defending herself given a blow to one of the accused
with a vegetable cutting knife. [861-C]

6. One of the essential requisites of a proper investigation is collec- . '!
tion ol' evidence relating to the commission of offence and that necessarily
includes, in a case of assault, seizure of the weapon of offence, but then
F failure to collect evidence and failure to produce evidence collected during
investigation at the trial carry two different connotations and consequen-
ces. While the former may entitle the court to hold the investigation to be
perfunctory or tainted affecting the entire trial, in case of the latter the
court may legitimately draw a presumption in accordance with Section 114
G (g) of the Evidence Act. [861-E]

7. The trial court, instead of finding out which of the contending
versions was correct and acceptable, gave out a version of its own relying
solely on presumption, surmise and conjecture. The Trial Court would have
been, on a proper discussion and appraisal of' the evidence, fully justified to
H hold that the prosecution case was unreliable and record an order of
CHANDKHANv. STATEOFU.P. [M.K. MUKHERJEE,J.] 851

acquittal in favour of accused without going into the question as to whether A
the defence case was true, for burden of proof was upon the prosecution.
Equally justified the trial court would have been in recording such an order.
if it found the defence case probable. But it was not at all justified to make
out a third case entering into the domain of speculation. [859-G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. B
716 of 1991.

From the Judgment and Order dated 15.7.91 of the Allahabad High
Court in Government Appeal No. 2613 of 1978.

D.D. Thakur, Suman Kapoor and Pankaj Kalra for the Appellants. c
Anis Ahmed Khan and A.S. Pundir for the Respondent.

The Judgment of the Court was delivered by

.. M.K. MUKHERJEE, J. Chand Khan and Shabhu, the two appellants
before us, and seven others were placed on trial before an Additional
D

Sessions Judge of Rampur to answer common charges under Sections 452,
302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code ('!PC' for
short). Against five of them, including the two appellants, a charge under
Section 148 !PC and against the other four a charge under section 147 !PC E
were also framed. besides, a separate charge under Section 302 !PC was
framed, against appellant Shabbu. The trial ended in an order of acquittal
recorded in favour of all the persons araigned. Aggrieved thereby the State
of Uttar Pradesh preferred an appeal which was partly allowed by the High
Court setting aside the acquittal of the two appellants and three others.
After setting aside their acquittal the High Court convicted the two appel- F
!ants for the offence under section 302 !PC as also for the other offences
for which they were charged and sentenced them to .suffer imprisonment
for life for the former conviction and for the period already undergone for
the other convictions. The other three were convicted of all the charges
levelled against them except the one under Section 302/149 !PC and G
sentenced to imprisonment for the period already undergone. Assailing the
above order of conviction and sentence only the two appellants have filed
· this appeal invoking their statutory right under Section 379 Criminal Pro·
cedure Code.

Facts whicli are not in dispute are that Shah Alam (the deceased), H
852 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A his cousin Faheem Khan (P.W. 6) and appellant Chand Khan were carrying
on business of Karchobi from two separate workshops in Mahalia Gher
Pipalwala within the police station of Ganj. Aslam (P.W.7), a boy aged
about 7/8 years, had been working for the appellant Chand Khan in his
business but a few days before the incident out of which the present appeal
arises he left his services and joined the set-up of Faheem Khan. On May
B 26, 1977 at or about 1 P.M. on the two appellants and accused Ishtiaq Khan
went to the workshop of Faheem Khan and asked him to release Aslam so
that he could work with Chand Khan again. When Faheem Khan refused
to oblige they assaulted him. For that incident, he lodged a complaint with
the police the same afternoon. However, according to the prosecution Shah
c Alam and Faheem Khan used to carry on their above business jointly but
as adequate accommodation was not available at one and the same place
they were mamtaining two workshops, one in the house of one Allah Rakha
Khan and the other in the terrace of Md. Jama Khan.

D The prosecution version of the incident is that one the same night
(on May 26, 1977) the two appellants along with the other accused persons -'
went to the house of Shah Alam to teach him a lesson for the report his
business partner Faheem Khan had lodged against some of them earlier in
the afternoon for assaulting him. For that purpose the two appellants went
armed with knives and the rest with other weapon including danda. Shah
E Alam was then sitting on a cot in the open space in front of his house along
with Irshad Khan, Bahar Khan and Kaisher (P.W. 2). Immediately after
entering the premises the accused persons started assaulting them. Chand
Khan gave two knife blows to Shah Alam and some others hit Jrshad Khan,
Bahar Khan and Kaisher Khan with dandas. When the victims cried aloud,
F Keramat Ali Khan (P.W. 1), father of the deceased Shah Alam, who was
inside the house came out and some people from the mohalla including
Kailan Mian @ Mardan Mian (P.W. 4) arrived there. In the meantime
some of the miscreants including Chand Khan entered into the house of
Keramat and assaulted his daughter Sm. Naeema Parveen (P.W. 5) and his
sister-in-law Sm. Raees Begum. When Sm. Naeema Praveen found that
G Chand Khan was about to beat her mother she picked up a knife used for
cutting vegetables which was lying nearby and assaulted him. While coming
out of the house Shabbu thrust his knife on the neck of Shah Alam felling
him down. All of them then fled away. Kcramat Ali Khan arranged
immediate hospitalisation of all the injured including Shah Alam, whose
H condition was precarious. Before, however, any treatment could be ad-
CHANDKHANv. STATEOFU.P.[M.K.MUKHERJEE,J.] 853

ministered Shah Alam died. While in the hospital Keramat Ali Khan got a A
·complaint written by Asmat Ali Khan (P.W.9) as per his dictation and
forwarded the same to the police station.

At the hospital, Dr. S.P. Pandey (P.W. 3) examined Sm. Naeema
Parveen (P.W. 5), Jrshad Khan, Bahar Khan, Sm. Raees Begum and
Kaisher Khan (P.W. 2) and found injuries on their persons. P.W. 5 had B
two incised wounds which; according to P.W. 3, could be caused by sharp
edged weapon and the other four had sustained contusions, which could
be caused by blunt weapons. Chand Khan, who was also brought under
arrest to the hospital in that very night as he had injuries on his person,
was also examined by P.W.3. He found three incised wounds on his person, c
all of which, recording to him, could be caused by a sharp edged weapon.
besides, P.W. 3 examined Faheem Khan for.injuries which, he alleged, were
sustained by him in the incident that took place earlier in the afternoon.
According to P.W. 3 the two stab injuries he found on his person were
likely to have been caused by a pointed weapon.
.. The post-mortem examination on the body of Shah Alam was held
D

by Dr. O.N. Gupta on the following day (27.5.1977). He found the following
external injuries on his person :

1. Incised punctured wound wound 5 cm. x 3 cm. x chest cavity deep E
on the base ofleft side neck, 5 cm. from the left sterno clavicular joint with
direction downwards.

2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above
right eye brows.
F
3. Abrasion 3 cm. x 2 cm. on right side forehead 3 cm. Lateral to
injury No. 1.

4. Abrasion 2 cm. x 1 cm. on the left side scapular region back.

5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at G
inner angle of left scapula.

6. Incised punctured wound 3 cm. x 1 cm. chest cavity deep on left
side back 4 cm. below injury No. 5.

On internal examination of the dead body he found that the sixth rib H
854 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A was cut under injury No. 6; the pleura was cut beneath the injuries No. 1
and 6, the left lung was cut through and through; upper lobe was cut both
under injury No. 1 and 6 and the pericardium and the right side of the
heart were cut by the injury No. 1. Dr. Gupta opined that the death was
due to shock and haemorrhage as a result of the injuries to vital organs.

B Shri V.P. Singh (P.W. 16) Station House Officer of Ganj Police
Station took up investigation of the case registered on the complaint of
Keramat Ali Khan. Besides, interrogating by him and the injured persons
in the hospital on that very night, he inspected the place of occurrence,
prepared a site plan and seized some blood stained earth from near the
c gate of the complainant's house. After completion of investigation he
submitted charge-sheet against the nine accused persons.

The appellants and the other accused persons pleaded not guilty and
asserted that they had been falsely implicated. In his statement recorded
D under Section 313 Cr. P.C. Chand Khan, however, admitted that earlier
P.W. 7 used to work at his workshop but P.W. 6 weaned him away. He also. ••
admitted that he had gone to the workshop of Faheem Khan with Shabbu
and Ishtiaq and asked him to hand over Aslam to him ,and that he had
assaulted him. He however denied to have assaulted him with a knife. As
regards the incident in question, his version that on that night there was a
E festivity in the house of his cousin Sajjan and Mahboob (since acquitted)
to which he was aµ.ii\.vitee. As Rafiduddin of their mohalla was also invited
in that function he went to his house which was near the house of the
complainant ' to accompany him. There, on hearing his voice, Shah Alam •1
and Kaisher Khan came out with knives accompanied by Bahar Khan and
··f' Irshad Khan and started beating him. When he cried aloud Shabbu (ap-
pellant), Sharif and Salim who were standing nearby and talking among
themselves arrived there. When Shah Alam and his companions attempted
to assault Shabbu and others, they in their defence assaulted them. As the
ladies of the house had come out then they also sustained minor injuries.
Appellant Shabbu, in his statement under Section 313 Cr. P.C. admitted
G the assault on Faheem Khan in that afternoon but denied his presence at
the time of the incident in question.

To prove its case the prosecution examined sixteen witnesses but no
witness was examined on behalf of the defence. On consideration of the
H evidence adduced the trial Court held that the prosecution case was
CHANDKHAl'lv. STATEOFU.P. [M.K MUKHERJEE,J.] 855

unworthy "of credit. On appeal the learned Judges of the High Court found A
that evidence of the four eye-witnesses examined by the prosecution,
namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial
Court for disbelieving them and, for that matter, discarding the case of the
prosecution were perverse.

It was urged on behalf of the appellants that as the trial Court gave
B
detailed reasons for disbelieving the evidence of the prosecution witnesses
the High Court was not justified in interfering with the same even if another
reasonably possible view of the evidence in favour of the prosecution might
be taken. Having heard the learned counsel at length and seen the judg-
ments of the learned Courts below in the light of the evidence on record, c
we find that the High Court committed no error or injustice in interfering
with the order of acquittal for it has noticed all the salient features of the
case in the judgment of the trial Court, discussed them well and disap-
proved them for cogent and justified reasons. We are in complete agree-
ment with the High Court that the judgment of trial Court was perverse D
v and deserved to be set aside.

In the context of the prospective cases of the parties, it could not be
- nor was it disputed that an incident of assault took place in the night of
May 26, 1977 in or around the residential premises of Keramat Ali Khan
(P.W.l) in the backdrop of an earlier incident in the afternoon in which E
Faheem Khan (P.W.6) was injured. It was also not disputed that in the
incident in question Shah Alam met with his death while some others
including appellant Chand Khan sustained injuries. In that view of the
matter the principal question that fell for determination before the learned
Courts below was whether it took place within the residential premises of F ..
P.W. 1 and in the manner as alleged by the prosecution or in the lane·
outside his house as claimed by the defence. To prove its version of the
incident, the prosecution relied, needless to say, upon the evidence of the
four eye-witnesses referred to earlier while the defence relied upon the
statement of the accused including the appellant Chand Khan made under

.... Section 313 Cr. P.C. and the circumstances appearing on record.

In negativing the prosecution version the trial Court first held, for
G

reasons given, that the assault on Faheem Khan in the afternoon by Chand
Chand could not be a motive for committing the murder of Shah Alam and
that no other motive was ascribed by the prosecution. Even if we proceed H
856 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A on the basis that the prosecution failed to prove the genesis or motive and
that the above finding of the trial Court in this regard is unexceptionable
still then this appeal cannot succeed on that score for proof of motive is
not essential for success of a prosecution case where - as in the instant case
- the ocular testimony in support of it is convincing and reliable. Indeed,
as our discussion to follow will show the findings recorded by the trial
B
Court for discarding the evidence of the four eye witnesses are based either
on presumption, surmise and conjecture or on undue and unjustified
reliance upon minor and immaterial contradictions.

In dealing with the evidence of the four eye-witnesses the trial Court
C first observed that having regard to the incident that took place in that
afternoon. Faheem Khan and Shah Alam could only be the targets of the
attack of the accused persons and not others, namely, Kaisher Khan, Bahar
Khan and Irshad Khan as testified by them. It next observed that if their
evidence that Shah Alam and the above three persons were sitting together
in front of the complainant's house and were talking to each other when
D the accused arrived there was to be believed, the latter could have caught
hold of Shah Alam from out of those persons and put him to death in no
time and then gone back. After making the above observations the trial
Court held :

E '"It may be that the members of the complainant's house might have
come-out at their door on hearing the noise and alarm of this
incident and that they might be rebuking and even accusing these
accused-persons on their assaulting Shah Alam etc.".

The trial Court also disbelieved the prosecution case as to the
F manner in which the accused persons entered into the house of the
complainant and beat the female members and, in explaining away the
injuries found on the persons of Sm. Naeema Parveen and Sm. Raees
Bei,'llm, observed :

"....... and truth of the matter appears to be that Sm. N aeema
G Parveen and Sm. Raees Begum had accidently sustained their
injuries in this incident when they had entered in the arena of the
fight for defending Shah Alam etc. from the assault of the accused."
' .
The High Court brushed aside the first of the above quoted findings
H of the trial Court with the following comments:
CHANDKHANv. STATEOFU.P. [M.K.MUKHERJEE.J.] 857

"The observation of the Additional Sessions Judge that the accused A
were likely to single out Shah Alam and lo assault him alone it
Shah Alam. Irshad Khan, Babar Khan and Kaiser Khan had been
found sitting on the cot is misconceived and devoid of sense for
Babar Khan the Brother of Shah Alam and Kaisher Khan and
Irshad Khan who were his close relatives could not have been silent
B
spectators. It is for this reason that they had all sustained injuries
around the cot. 11

As regards the other finding the High Court observed that in view
of the nature of the injuries sustained by Sm. Naeema Parveen and Sm.
Raees Begum and in the absence of any suggestion put forward by the C
defence that those injuries were caused accidentally the criticism of the
trial Court was perverse.

On a close analysis of the materials on record we are of the opinion
' that the High Court was fully justified in making the above comments. That
Kaisher Khan (P.W. 2), Bahar Khan and Irshad Khan were present at the D
material time as testified by the four eye witnesses was admitted by the
defence. It was also admitted that besides Shah Alam the above three
persons as well as lady members of the house sustained injuries. However,
according to them, they had beaten Shah Alam and other male members
in exercise of their right of private defence and the ladies sustained simple E
injuries as they had then come out of the house. The trial Court therefore
was at all justified in disbelieving even the presence of Irshad Khan, Babar
Khan and Kaisher Khan at the spot. Then again, keeping in view the fact
that the injuries sustained by Sm. Naeema Parveen could be caused by a
sharp edged weapon only and it being not the case of the defence that they
had with them any such weapon the finding of the trial Court that Sm. F
Naeema Parveen and Sm. Raees Begum had accidentally sustained their
injuries must be said to be based on conjecture only.

Another reason which weighed with the trial Court in disbelieving
the prosecution case was that there were discrepancies in evidence as to G
the details and manner of assault. While detailing those discrepancies the
trial Court observed :

"According to the complainant Keramat Ali Khan that cot was
lying just in front of the main door of his house at a distance of
only 2 to 3 steps from the door and the entire beating outside his H
858 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A house had taken place near that cot and the last fatal blow of the
. '

chhuri was also inflicted by Shabbu accused on Shah Alam at only
2 or 3 steps in front of his main door. On the other hand, according
to Sm. Naeema Parveen, that cot was lying at 6 to 7 steps front of
the main door of the house. According to P.W. Kaisher Khan, to
whom that cot belonged, the cot was lying by the side of his
B
chapper, i.e., towards the north-west of the complainant's door
and, according to him it was lying at 6 or 7 steps from that door
towards the ?? . According to P.W. Mardan Mian and is Kailan
Mian Also, that cot was lying at 7 or 8 steps towards the north-west
...
from the complainant's door, P.W. Keramat Ali Khan, at first,
c stated before me that the accused-persons had beaten Shah Alam
etc. towards the east of the cot. Then he stated in the next breath
that some of them were beating on one side. While the others were
beating on the other side of the cot. Further on he stated that the
victims were roaming around that cot, while being beaten, and the ( .
samething has been stated by some other witnesses."
D
The discrepancies jointed out by the trial Court are patently of minor
character and cannot detract from the evidentiary value of the eye-wit-
nesses. The High Court was, therefore, fully justified ignoring those dis-
crepancies while dealing with the evidence of the four eye-witnesses.
E
The next reason canvassed by the trial Court for disbelieving the
prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W. 2)
and Mardan Mian (P.W. 4) only established that some of the accused
persons had assaulted Shah Alam and not all. Having recorded the above
F finding it was imperative for the trial Court to consider the case of the
individual accused on their respective merits in the light of other evidence
on record and not to outright reject the evidence of the two witnesses in
its entirety for it is trite that the principle "Falsus in uno, Fa/sus in omnibus"
does not apply to criminal trials and it is the duty of the Court to disengage
the truth from falsehood.
--
G
The judgment of the trial Court is replete with similar such findings
which the High Court has· rightly not accepted as correct. However, to
avoid prolixity we refrain from detailing or discussing all of them and refer
-
only to the concluding one to highlight the absurd and perverse approach
H of the trial Court in dispensing criminal justice. It reads :
CHAND KHAN v. STATE OF U.P. [M.K MUKHERJEE, J.) 859

"It is quite probable that Shah Alam etc. might be bearing grudge A
and ill-will against Chand Khan etc. on account of the noon
incident of that day, in which the accused Chand Khan, Ishtiaq
Khan and Shabhu had an altercation with P .W. Raheem Khan and
had then beaten him; and it may be that Shah Alam etc. might have
caught-hold of Chand Khan accused when he had gone to the B
house of Rafiquddin for calling him and that they might have taken
him from there in front of the complainant's house and might have
assaulted him with chhuris. Then, it is also quite probable that the
accused Sharif Khan, Salim Khan and Shabbu might have arrived
on the spot on hearing the alarm raised by Chand Khan accused C
and that Shah Alam etc. might have tried to assault them also and
thereupon they might have assaulted.Shah Alam etc. with dandas
and chhuri in defence of Chand Khan accused, as also in their own
self defence. It has come in evidence that the house of Shabbu
accused is situated quite near to the road crossing and that the D
> house of Salim Khan accused is also situated in the same locality.
So, it is quite possible that the accused Shabbu, Salim Khan and
Salim Khan might be standing at the road crossing near the house
of Shabbu accused and might be talking to each-other at that time
and that they might have reached the spot on hearing the alarm
raised by Chand Khan accused." E

(emphasis supplied)

By frequent recourse to and reliance upon the words "might be" and
"might have" in the above quoted passage the trial Court, instead of finding
F
out which of the contending versions was correct and acceptable, gave out
a version of its own relying solely on presumption, surmise and COl)jecture.
The trial Court would have been, on a proper discussion and appraisal of
the evidence, fully justified to hold that the prosecution case was unreliable

-· and record an order of acquittal in favour of accused without going into G
the question as to whether the defence case was true, for burden of proof
was upon the prosecution. Equally justified the trial Court w~uld have been
in recording such an order if it found the defence case probable. But it was
not at all justified to make out a third case entering into th\ domain of
speculation. The High Court was, therefore, right in basing its decision on H
860 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A a fresh and proper appraisal of the evidence leaving aside the obstinate
findings of the trial Court. Having gone through the record we do not find
any reason to differ from the decision so arrived at by the High Court.

Mr. Thakur, learned counsel for the appellants, however submitted
that even if at was held that the reasons which weighed with the trial Court
B
in recording the order of acquittal were faulty and unsustainable still then
the order of acquittal was liable to be upheld for the evidence on record
did not justify the impugned judgment rendered by the High Court. To
bring home his contention Mr. Thakur urged that the incident that took
place in the afternoon in which Faheem Khan was assaulted by Chand
-·
c Khan might have been a motive for the former to assault the latter and not
vice-versa. In that context, Mr. Thakur urged, the defence version of the
incident in question was more probable than that of the prosecution. This
contention of Mr. Thakur need not be gone into for we have earlier
observed, and at the risk of repetition may again point out, that as the
D evidence on record clearly proves that the incident took place in the
manner alleged by the prosecution absence or insufficency of motive is <
immaterial. Mr. Thakur next submitted that the evidence of the prosecution
witnesses so far as it related to the assault on Sm. Naeema Praveen and
Chand Khan inside the house was patently false; firstly. because on blood
E was found inside the house and secondly because on knife was produced
by Sm. Naeema Praveen much less seized by the Investigation Officer. In
support of his contention he drew our attention to the evidence of the
Investigation Officer (PW 16) where in he stated that neither he had seen
nor shown the vegetable cutting knife used by Sm. Naeema Praveen and "'·
that he had found blood at the place which was about 8 steps from the
F northern main door outside the house of Keramat Ali and nowhere else.
We are not impressed by any of the above contentions.

There is no evidence on record to show that there was profuse
bleeding from the injuries sustained by the two ladies and Chand Khan for
G blood to trickle down to the floor. On the contrary, the find of blood near
the threshold of P.W. l's house fits in with the evidence of the eye-witnesses
and the nature of injuries sustained by Shah Alam. From the evidence of
Sm. Naeema Praveen (PW 5) we get that when the accused persons started
·-
beating the members of their family inside their premises, she, her mother
H and aunt (Raees Begum) stated shouting and cursing them. Then, when
CHAND KHAN v. STATE OFU.P. [M.K. MUKHERJEE, J.] 861

they found Chand Khan was approaching them they went inside. There A
Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik
Khan gave two danda blows to her aunt Raees Begum. When she found
Chand Khan was about to beat her mother, she struck him with a vegetable
cutting knife. The above evidence of P.W. 5 stands substantially cor-
roborated by the other three eye witnesses referred to earlier. Then again B
the nature of injuries as found by the doctor upon her, Sm. Races Begum

·- and Chand Khan fits in with her testimony. In our opinion the best
corroborative piece of evidence is furnished by the F.l.R. which was lodged
by Keramat Ali (P.W. 1) on the basis of what he heard from P.W. 5. In the
F.l.R. which was lodged within two hours of the incident, the substratum C
of the entire prosecution case finds place including a statement that during
the incident Sm. Naeema Praveen had, in defending herself, given a blow
to one of the accused with a vegetable cutting knife. In view of the above
statement recorded in the F.I.R., the Investigation Officer (P.W. 16) ought
to have taken steps to seize the knife even if P.W. 5 had not produced it D
for, one of the essential requisites of a proper investigation is collection of
.- .. evidence relating to the commission of the offence and that necessarily
includes. In a case of assault seizure of the weapon of offence, but then
failure to collect evidence had failure to produce evidence collected during
investigation at the trial carry two different connotations and consequen-
ces. While, the former may entitle the Court to hold the investigation to E
be perfunctory or tainted affecting the entire trial in case of the latter
the Court may legitimately draw a presumption in accordance with Section
114 (g) of the Evidence Act. As the case presented before us comes under
the first category of failures we have to find out whether we will be justified
in discarding the prosecution case solely for the remissness of the Inves- F
tigating Officer in seizing the knife. The consistent and reliable evidence
of the eye witnesses coupled with the nature of injuries sustained by
some of them and Chand Khan and the fact that in the F.I.R. it has clearly
been stated that one of the miscreants had been assaulted by a vegetable
cutting knife do not persuage us to answer the question in the affirmative. G
Mr. Thakur Lastly submitted that the entire prosecution story was im-
probable for if really the incident had happened in the manner alleged by
it, the persons present in P.W.l's house would have sustained more serious
injuries. We do not find any substance in this contention for it is evident
that Shah Alam the main target and the assault on others was carried out H
862 SUPREME COURT REPORTS [1995] SUPP. l S.C.R.

A to thwart any resistance from those present in the courtyard.

As all the pointed raised by Mr. Thakur fail and as on a conspectus
of the entire evidence we are fully satisfied that the conclusions drawn by
the High Court, particularly regarding the roles played by the two appel-
lants in the riot and the murder of Shah Alam are unexceptionable, we
B dismiss the appeal. The appellants, who are on bail, shall now surrender
to their bail bonds to serve but the sentences.

M.K. Appeal dismissed.