HABIBversusSTATE OF UTTAR PRADESH

                         [2013) 5 S.C.R. 476


A                               HABIB
                                  v.
                  STATE OF UTTAR PRADESH
              (Criminal Appeal No. 911 of 2007 etc.)
                            MAY 1, 2013
B
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Penal Code, 1860 - s.302 - Prosecution of 3 accused -
  Acquittal by trial court - High Court convicting 2 of the
C accused- and upholding acquitted of one - Appeal by the
  convicted accused - Held: Prosecution case is supported by
  evidence of eye-witnesses and medical evidence - Conviction
  upheld.

        Administrationof Criminal Justice - If two views are
0
    possible, one pointing to the guilt and other to the innocence,
    view favourable to the accused to be adopted.

         Motive - Evidentiary value - Held: Motive loses its
    significance in case of direct trust-worthy evidence.
E
          Witness - Interested witness - Evidentiary value - A
    witness, if trustworthy, cannot be discarded merely because,
    it is interested.

        Appeal - Appeal -against acquittal - Held: In such appeal,
F   appellate court is required to re-appreciate the evidence.

       The Appellants-accused 'H' and 'M' alongwith
  another accused were prosecuted for murder. As per
  prosecution, there were eye-witnesses to the incident.
G Trial court acquitted all the accused. In appeal, High Court
  maintained the acquittal of one accused, but setting aside
  the acquittal of appellants-accused, convicted accused
  'H' u/s 302 IPC and convicted accused 'M' u/s 302/34 IPC.
  Hence, the present appeals.
H                               476
       HABIB v. STATE OF UTTAR PRADESH                  477

          Dismissing the appeals, the Court                    A

     HELD: 1. The High Court has correctly appreciated
the oral and documentary evidence, including the medical
evidence of PW6 and rightly came to the conclusion that
the trial court had committed an error in discarding their     B
evidence. [Para 10) [483-B]

     2. In an appeal against acquittal, the appellate court
is entitled to re-appreciate the evidence on record if the
court finds that the view of the trial court acquitting the
accused was unreasonable or perverse. The golden               C
thread which runs through the web of administration of
justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to the innocence, the
view which is favourable to the accused should be              D
adopted. However, the paramount consideration of the
court is to ensure that miscarriage of justice is prevented.
[Para 10] [483-B-D]

    State of Punjab vs. Ajaib Singh and Ors. (2005) 9 SCC      E
94; V.N.Ratheesh v. State of Kera/a (2006) 10 SCC 617:
2006 (3) Suppl. SCR 314 - relied on

     3. If there is direct trustworthy evidence of witnesses
as to the commission of offence, motive part loses its
significance. Therefore, if the genesis of the occurrence      F
is proved, the ocular testimony of the witnesses could not
be discarded only by the reason of the absence of
motive, if otherwise the evidence is worthy of reliance.
[Para 6] [481-F-G]
                                                               G
     Sheo Shanker Singh vs. State of Jharkhand (2011) 3
SCC 654: 2011(4) SCR 312; Bipin Kumar Monda/ vs. State
of West Bengal (2010) 12 SCC 91: 2010 (8) SCR 1036 -
relied on.
                                                               H
    478     SUPREME COURT REPORTS              [2013] 5 S.C.R.


A      4. The mechanical rejection of the evidence on the
  sole ground that it is interested, would invariably lead to
  the failure of justice. The mere fact that PW1 and PW2 are
  interested witnesses, being relatives, is not a reason to
  discard their evidence, if the evidence is trustworthy.
B Both, PW 1 and PW 2 have, categorically stated that the
  first shot was fired by appellant-accused 'M' but missed
  his aim and it was appellant-accused 'H' who fired the
  fateful shot at the neck of the deceased and thereafter
  three culprits ran away from the spot. Prosecution also
c placed reliance on the testimony of PW 3, who was a co-
  villager of the informant and he fully corroborated the
  testimony of other witnesses regarding the part played
  by the three accused persons in the commission of
  crime. Nothing could be brought out in the corss-
D examination of PW1, PW2, PW3 to discredit their
  statement. [Paras 7, 8] [482-A-E]

      Brathi vs. State of Punjab (1991) 1 SCC 519: 1990 (2)
   Suppl. SCR 503; State of Jammu and Kashmir vs. S.
  Mohan Singh and Anr. (2006) 9 SCC 272; Shyama/ Ghosh
E vs. State of West Bengal (2012) 7 SCC 646: 2012 (10)
  SCR 95 - relied on.
                        Case Law Reference
          2011 (4) SCR 312         relied on         Para 6
F
          2010 (8 ) SCR 1036       relied on         Para 6
          1990 (2) Suppl. SCR 503 relied on          Para 8
          (2006) 9 sec 212         relied on         Para 8
G         2012 (10) SCR 95         relied on         Para 8
          (2005) 9 sec 94          relied on         Para 10
          2006 (3) Suppl. SCR 314 relied on          Para 10

H
       HABIB v. STATE OF UTTAR PRADESH                     479


    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal              A
No. 911 of 2007.

    From the Judgment & Order dated 23.3.2007 of the High
Court of Judicature at Allahabad in Government Appeal No.
114 of 1982.                                                       B
                            WITH

Crl. A.No. 915 of 2007.

    M.Z. Chaudhary, Aftab Ali Khan for the Appellant.              c
   Vibhu Tiwari, Bharti Tyagi, Ravi Prakash Mehrotra for the
Respondent.

    The Judgment of the Court was delivered by
                                                                   D
    K.S. RADHAKRISHNAN, J. 1. The appellants herein
were charge-sheeted for the offences punishable under Section
302 of the Indian Penal Code. The accused Habib was charge-
sheeted under Section 302 IPC and the remaining two accused
persons including Manuwa were charge-sheeted under Section         E
302 read with 34 IPC, however, Manuwa was also charge-
sheeted under Section 307 IPC as well.

      2. The trial court after appreciating the oral as well as
documentary evidence acquitted all the accused persons vide
its judgment dated 3.10.2008. Aggrieved by the said order the      F
State preferred G.A. No.114of1982 before the High Court of
judicature at Allahabad. The High Court, vide its judgment dated
23.3.2007 confirmed the acquittal of the accused Bhappa but
acquittal of Habib and Manuwa was set aside. Habib was found
guilty and convicted for the offences punishable under Section     G
302 IPC and accused Manuwa was convicted under Section
302 read with Section 34 IPC. Aggrieved by the said order
Habib has filed Criminal Appeal No.911 of 2007 and Manuwa
has filed Criminal Appeal No.915 of 2007.
                                                                   H
    480      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A         3. The prosecution story is that Sammo, daughter of
    deceased Fakira and sister of Hamid (PW 1) - complainant
    was married to Habib, one of the accused. Sammo left the
    matrimonial home due to demand of dowry. Later PW 1 settled
    her marriage with another person but the nikah was not
B   performed since no divorce was obtained from her husband-
    accused Habib. The prosecution version is that on 13.1.1981
    at about 6.30 PM PW 1 Hamid accompanied by his father
    Fakira (deceased), his brother Rafique, servant Ashraf and
    other person namely Kailash Chandra were proceeding to a
c   place Goverdhan along with cattle through a canal road. The
    accused Manuwa, his son Habib, appellants herein, and his
    brother Bhappa met PW 1 and others on the way and enquired
    about their destination. PW 1 informed that they are going to
    Goverdhan for cattle business. On seeing them, accused
    Manuwa instigated his sons Habib and Bhappa to challenge
0
    PW 1 and others. Manuwa himself opened fire with a view to
    kill Fakira, but it did not hit Fakira, Habib also opened fire and
    shot Fakira at his neck and he fell down and died on the spot.
    PW1 Hamid lodged a report to the police station Goverdhan,
    Mathura on 13.1.1981 at about 8.45 PM. Thereafter a case
E   Crime No.13 under Section 302 IPC was registered. The case
    was tried by the Sessions Judge, Mathura. Prosecution, in
    order to bring home the charge, examined PW 1 Hamid, the
    informant, PW 2 Rafique, brother of the deceased, PW 3
    Kailash Chandra, eye-witness to the murder, PW 4 Radhey
F   Shayam, head constable, PW 5 Ram Kheladi, constable, PW
    6 Dr. K.K. Khanna, CMO of Mathura to prove the post-mortem
    report, prepared by Dr. K.K. Seth. PW 7 Brijpal Singh -
    Investigating Officer and PW 8 Bankey Lal, constable. On the
    side of the defence, accused examined Abdul as DW1 and
G   Rajendra Prasad Pandey as DW2.

      4. Sessions Court after appreciating the oral and
  documentary evidence acquitted all the accused persons and
  on appeal preferred by the State, the High Court reversed the
H judgment of the trial court and, as already stated, convicted the
        HABIB v. STATE OF UTTAR PRADESH                       481
             [K.S. RADHAKRISHNAN, J.]
accused persons and sentenced them to undergo                        A·
imprisonment for life.

     5. Mr. M.Z. Chaudhary, learned counsel appearing for the
appellants submitted that the High Court has committed a
serious error in reversing the order acquittal which was passed      B
by the trial court after appreciating the oral and documentary
evidence adduced by the prosecution as well as by the defence.
He submitted that various circumstances pointed out by the trial
court in disbelieving the evidence of the prosecution witnesses
should not have been disturbed by the High court and no reason       C
exist to do so. Learned counsel also pointed out that the eye-
witnesses are closely related and there are possibilities of false
implication due to some grudge entertained by the deceased
and the complainant against the accused persons since PW
1's sister was married to Habib.
                                                                     D
     6. Sammo, sister of Hamid, as already stated, was
married to accused - Habib, son of Manuwa and the third
accused Bhappa is real brother of Manuwa and uncle of Habib.
Sammo left the matrimonial home due to strained relationship
with Habib, the accused. Prior to the incident the deceased and      E
PW 1 had settled the marriage of Sammo with somebody
before getting divorce from Habib. The motive for the murder
was the strained relationship between the accused persons
and PW 1 and the deceased. It is settled legal position that if
there is direct trustworthy evidence of witnesses as to the          F
commission of offence, motive part loses its significance.
Therefore, if the genesis of the occurrence is proved, the ocular
testimony of the witnesses could not be discarded only by the
reason of the absence of motive, if otherwise the evidence is
worthy of reliance. This legal position has been settled by this     G
Court in its Judgment in Shea Shankar Singh v. State of
Jharkhand (2011) 3 SCC 654 and Bipin Kumar Monda! v.
State of West Bengal (2010) 12 SCC 91.
                                                  ..1·
   7. We are of the view that the mere fact that PW 1 Hamid,
PW 2 Rafique are son and brother of the deceased, that itself        H
    482     SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A is not a ground to disbelieve their evidence. Both, PW 1 and
  PW 2 have, categorically stated that the first shot was fired by
  Manuwa but missed his aim and it was Habib who fired the
  fateful shot at the neck of the deceased and thereafter three
  culprits ran away from the spot. Prosecution also placed
B reliance on the testimony of PW 3, Kailash Chandra who is a
  co-villager of the informant and he fully corroborated the
  testimony of other witnesses regarding the part played by the
  three accused persons in the commission of crime. We have
  gone through the depositions of PW1, PW2, PW3 and nothing
c could be brought out in the corss-examination to discredit their
  statement.

        8. We are of the view, the mere fact that PW1 and PW2
  are interested witnesses being relatives is not a reason to
  discard their evidence, if the evidence is trustworthy. This Court
D in Brathi v. State of Punjab (1991) 1 SCC 519 held that the
  mechanical rejection of the evidence on the sole ground that it
  is interested would invariably lead to the failure of justice. In
  State of Jammu and Kashmir v. S. Mohan Singh and Another
  (2006) 9 sec 272 this Court held that in a murder trial, merely
E because a witness is interested or inimical, his evidence
  cannot be discarded unless the same is otherwise found to be
  trustworthy. In Shyamal Ghosh v. State of West Bengal (2012)
  7 SCC 646 this Court held that merely because three witnesses
  were related to the deceased, the other witnesses, not similarly
F paced would not attract any suspicion of the court on the
  credibility and worthiness of their statements.

       9. The medical evidence of PW6, Dr. K.K. Khan, who was
  examined to prove the port-mortem report by Dr. K.K. Seth,
G would indicate that Fakira was done to death as a result of
  gunshot injury on his neck. The doctor, who conducted the
  autopsy found that death had taken place about one day prior
  to the examination which was done at 5.30 PM on 14.1.1981.
  Doctor also found one gun short wound of entry trachea deep
  on the front of neck and there were fractures of third and fourth
H
         HABIB v. STATE OF UTTAR PRADESH                      483
              [K.S. RADHAKRISHNAN, J.]
cervical vertebrae and laceration at the level of third and fourth   A
cervical vertebrae.

     10. We are of the view that the High Court has correctly
appreciated the oral and documentary evidence, including the
evidence of PW6, the Chief Medical Officer and rightly came
                                                                     B
to the conclusion that the trial court had committed an error in
discarding their evidence. This Court in State of Punjab v. Ajaib
Singh and Others (2005) 9 sec 94, also recorded that in an
appeal against acquittal, the appellate court is entitled to re-
appreciate the evidence on record if the court finds that the view   C
of the trial court acquitting the accused was unreasonable or
perverse. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to the innocence, the
view which is favourable to the accused should be adopted.           D
However, the paramount consideration of the court is to ensure
that miscarriage of justice is prevented as noted in the
Judgment of this Court in V.N. Ratheesh v. State of Kera/a
(2006) 10 sec 617.
                                                                     E
      11. We are of the considered view that the High Court has
rightly found that the finding recorded by the trial court was
unreasonable and perverse and reversed the order of acquittal
passed by the trial Court. The appeals, therefore, lack merits
and the same are dismissed.

K.K.T.                                      Appeals dismissed.