KHURSHID AHMEDversusSTATE OF JAMMU AND KASHMIR

                        [2018] 6 S.C.R. 1121                            1121


                       KHURSHID AHMED                                   A
                                 v.
               STATE OF JAMMU AND KASHMIR
                 (Criminal Appeal No. 872 of 2015)
                           MAY 15, 2018                                 B
        [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
       Ranbir Penal Code – s.302 – Prosecution case that there was
a scuffle between the appellant-accused and ‘A’ over some payment
issue – Same day in evening, appellant-accused assaulted ‘A’ on
                                                                        C
his head in presence of his father-PW-9 – ‘A’ and PW-9 rushed to
clinic for first aid and then went to police station and lodged an
oral complaint – Head injury resulted in the death of ‘A’ – Trial
Court acquitted accused – However, High Court reversed the order
of acquittal into conviction u/ss. 302/341 RPC – Appellant-accused
contended that the entire case depended on the veracity of evidence     D
of PW-9 but he was an interested witness and therefore his evidence
was not reliable – On appeal, held: Trial Court adopted hyper
technical approach which resulted in the acquittal of the accused –
FIR lodged on the basis of the oral complaint made by the deceased
at the police station was a reliable document and was made soon
                                                                        E
after the incident – The subsequent statement of the deceased at the
hospital as recorded by the I.O. was duly corroborated by the
evidence of PW-9 – PWs 2 & 10 also corroborated the testimony of
PW-9 and proved the attack as PWs 2 & 10 had heard the same
from deceased himself – PW10 had deposed to have witnessed the
scuffle between the accused and the deceased at the latter’s shop       F
in the daytime and also the threat given by the accused – PWs 2 &
10 had also witnessed the recovery of weapon of offence (iron rod)
at the instance of accused, as the weapon was recovered by the
police in their presence – Presence of PWs 2 & 10 at time of recovery
of weapon and their depositions corroborate and strengthens the
                                                                        G
case of prosecution – Further, Doctor-PW13 deposed that cause of
death was head injury resulted by a blunt object and further revealed
that deceased had narrated to him how he was assaulted –
Postmortem report and the evidence of doctor-PW-13 fully
corroborates with evidence of PW-9 – If the evidence of an
                                                                        H
                                1121
1122            SUPREME COURT REPORTS                        [2018] 6 S.C.R.


 A     eyewitness, though a close relative of the victim, inspires confidence,
       it must be relied upon without seeking corroboration with minute
       material particulars – Testimony of father-PW-9 inspired confidence
       and the chain of events and circumstantial evidence thereof
       completely supports his statements which in turn strengthens the
       prosecution case with no manner of doubt – His evidence was
 B
       intrinsically reliable and wholly trustworthy – A conspectus of all
       the material conclude that the prosecution was successful in proving
       the guilt of the accused beyond reasonable doubt.
              Appeal – Powers of appellate Court – Held: The power of
       the appellate Court in an appeal against acquittal is same as that
 C     of an appeal against conviction – But, in an appeal against acquittal,
       the Court has to bear in mind that the presumption of innocence is
       in favour of the accused and it is strengthened by the order of
       acquittal – At the same time, appellate Court will not interfere with
       the order of acquittal mainly because two views are possible, but
 D     only when the High Court feels that the appreciation of evidence is
       based on erroneous considerations and when there is manifest
       illegality in the conclusion arrived at by the trial Court.
             Dismissing the appeal, the Court
             HELD: 1. In the instant case, according to PW9 (father of
 E     the deceased), the deceased had supplied some G.I. tin sheets to
       one person and the accused stood as guarantor for its payment.
       On the day of occurrence, when the deceased demanded to pay
       the money from the accused, he got annoyed and caught hold of
       the neck of the deceased and started beating him by which some
 F     bruises also appeared on the right side of his neck. At that point
       of time, (PW1), (PW12) and (PW10) were present there and
       separated them. The accused then threatened the deceased that
       he would see him anytime. After the closure of shop, when
       deceased was going home along with his father, on their way the
       accused holding an iron rod in his hands, appeared from opposite
 G     direction, intercepted their way and abused them. When they
       moved forward, the accused hit the deceased on his head with
       the rod due to which he fell down with bleeding. [Para 17][1132-
       E-G]
             2. The evidence of (PW2) and (PW10) also corroborate
 H     the testimony of PW9 and prove the attack as PWs 2 & 10 having
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                        1123


heard the same from the deceased himself. PW10 has categorically      A
deposed to have witnessed the scuffle between the accused and
deceased at the latter’s shop in the daytime, and also the threat
given by the accused. He further stated that the deceased was
taken to the hospital on his motor cycle and he accompanied the
deceased throughout till the last rites of the deceased. PWs 2
                                                                      B
and 10 further stated that they have also witnessed the recovery
of weapon of offence (iron rod) at the instance of accused, as the
weapon was recovered by the police in their presence. The said
recovery of weapon in the presence of PWs 2 & 10 and their
depositions would therefore corroborate and strengthens the case
of prosecution. [Para 18][1133-A-D]                                   C
      3. The Doctor opined that the cause of death was head
injury resulted by a blunt object within the duration of 12 hours.
It was specifically deposed by the Doctor in his evidence that the
injuries found on the body of the deceased were sufficient to cause
death. It was further revealed that while undergoing initial          D
treatment at the hospital, the deceased narrated to him that when
he was going towards his home, someone had assaulted. The
postmortem report and the evidence of Doctor (PW13) fully
corroborates with the evidence of PW9. [Para 19][1133-G-H;
1134-A-B]
                                                                      E
      4. If the evidence of an eyewitness, though a close relative
of the victim, inspires confidence, it must be relied upon without
seeking corroboration with minute material particulars. It is no
doubt true that the Courts must be cautious while considering
the evidence of interested witnesses. In his evidence, the
description of the incident by PW9 clearly portrays the way in        F
which the accused attacked the deceased causing fatal head injury
as propounded by the prosecution. The testimony of the father of
deceased (PW9) must be appreciated in the background of the
entire case. [Para 27][1136-E-F]
      5. The testimony of PW9 inspires confidence, and the chain      G
of events and the circumstantial evidence thereof completely
supports his statements which in turn strengthens the prosecution
case with no manner of doubt. PW9 is a ‘natural’ witness to the
incident. On a careful scrutiny, evidence of PW9 is intrinsically
reliable and wholly trustworthy. [Para 28][1136-G-H]                  H
1124            SUPREME COURT REPORTS                      [2018] 6 S.C.R.


 A            6. When analyzing the evidence available on record, Court
       should not adopt hyper technical approach but should look at the
       broader probabilities of the case. Basing on the minor
       contradictions, the Court should not reject the evidence in its
       entirety. Sometimes, even in the evidence of truthful witness,
       there may appear certain contradictions basing on their capacity
 B
       to remember and reproduce the minute details. Particularly in
       the criminal cases, from the date of incident till the day they give
       evidence in the Court, there may be gap of years. Hence the
       Courts have to take all these aspects into consideration and weigh
       the evidence. The discrepancies and contradictions which do not
 C     go to the root of the matter, credence shall not be given to them.
       In any event, the paramount consideration of the Court must be
       to do substantial justice. The trial Court has adopted an hyper
       technical approach which resulted in the acquittal of the accused.
       In the present case, there was manifest irregularity in the
       appreciation of evidence by the trial Court. The High Court based
 D
       on sound principles of criminal jurisprudence, has interfered with
       the judgment of acquittal passed by the trial Court and convicted
       the accused as the prosecution was successful in proving the
       guilt of the accused beyond reasonable doubt. [Paras 30, 32][1137-
       B-D; 1138-C-D]
 E           Dalip Singh & Ors. v. State of Punjab [1954] 1 SCR
             145; Masalti v. State of U.P. [1964] 8 SCR 133; Harbans
             Kaur & Anr. v. State of Haryana 2005 CriLJ 2199;
             Padam Singh v. State of U.P. (2000) 1 SCC 621 : [1999]
             5 Suppl. SCR 59 – relied on.
 F           Rathinam @ Rathinam v. State of Tamil Nadu & Anr.
             (2011) 11 SCC 140 : [2010] 11 SCR 871; Bindeshwari
             Prasad Singh & Ors. v. State of Bihar & Anr. (2002) 6
             SCC 650 : [2002] 1 Suppl. SCR 495; Sunil Kumar
             Sambhudayal Gupta & Ors. v. State of Maharashtra
 G           (2010) 13 SCC 657 : [2010] 15 SCR 452; Shivaji
             Sahabrao Bobade & Anr. v. State of Maharashtra
             (1973) 2 SCC 793 : [1974] 1 SCR 489; State of U.P. v.
             Kishanpal & Ors. (2008) 16 SCC 73 : [2008] 11
             SCR 1048; Nallabothu Venkaiah v. State of Andhra
             Pradesh (2002) 7 SCC 117 : [2002] 1 Suppl. SCR 606;
 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                           1125


      Jarnail Singh & Ors. v. State of Punjab (2009) 9 SCC               A
      719 : [2009] 13 SCR 774; Shivaji Genu Mohite v. State
      of Maharashtra AIR 1973 SC 55 – referred to.
                        Case Law Reference
      [2010] 11 SCR 871                 referred to     Para 9
                                                                         B
      [2002] 1 Suppl. SCR 495           referred to     Para 9
      [2010] 15 SCR 452                 referred to     Para 9
      [1974] 1 SCR 489                  referred to     Para 11
      [2008] 11 SCR 1048                referred to     Para 11
                                                                         C
      [2002] 1 Suppl. SCR 606           referred to     Para 11
      [2009] 13 SCR 774                 referred to     Para 11
      AIR 1973 SC 55                    referred to     Para 16
      [1954] 1 SCR 145                  relied on       Para 24          D
      [1964] 8 SCR 133                  relied on       Para 25
      2005 CriLJ 2199                   relied on       Para 26
      [1999] 5 Suppl. SCR 59            relied on       Para 31
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.               E
872 of 2015.
      From the Judgment and Order dated 11.03.2015 of the High Court
of Jammu Kashmir at Jammu in Criminal Acquittal Appeal No. 36 of
2012.
      Mohd. Aslam Goni, Sr. Adv., Syed Mehdi Imam, Atif Suhrawardy,      F
Omar Siddiqui, Ms. Varnita Rastogi, Tabrez Ahmad, Advs. for the
Appellant.
     Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, M. Shoeb
Alam, Advs. for the Respondent.
                                                                         G
      The Judgment of the Court was delivered by
     N. V. RAMANA, J. 1. This appeal is directed against the
judgment dated 11th March, 2015 passed by the High Court of Jammu
and Kashmir at Jammu in Criminal Appeal No. 36 of 2012. By the said
judgment, the High Court reversed the order of acquittal passed by the
                                                                         H
1126             SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A     Principal Sessions Judge, Bhaderwah against the appellant, and convicted
       him for the offences punishable under Sections 302/341 of the Ranbir
       Penal Code (hereinafter referred to as ‘RPC’) and sentenced him to
       suffer imprisonment for life and to pay a fine of Rs.1,000/- for the offence
       punishable under Section 302, RPC and to pay a fine of Rs.500/- for the
       offence under Section 341, RPC, with the direction to realize the fine
 B
       amount from his estate.
              2. The brief facts, as culled out from the prosecution case are
       that on 18th May, 2006 a shop keeper of hardware material, namely,
       Arshad Sajad accompanied by his father Sajad Ahmed Bhat (PW9)
       were going to their home after closure of shop in the evening at about
 C     5.30 p.m., while they were on their way, near Masjid, the appellant herein
       intercepted them from the opposite directionand started hurling abuses
       against them. When they ignored his abuses and moved forward, the
       appellant attacked Arshad Sajad on his head from behind with an iron
       rod. The injured Arshad Sajad and his father then went to the clinic of
 D     one Ali Mohd. (PW3) and on his advise they went to the Bhaderwah
       police station and informed the police about the incident. Accordingly,
       FIR No. 53 of 2006 was registered against the accused—appellant for
       the offences punishable under Sections 341/323, RPC. Police then sent
       the injured to Sub District Hospital, Bhaderwah for treatment.As his
       condition was deteriorating, for better treatment, he was being shifted to
 E     Government Medical College, Jammu, but on the way,he succumbed to
       the injuries.
              3. Nisar Ahmed, S.H.O. of police station Bhaderwah—PW 14
       took up the investigation, sent the body of the deceased for postmortem,
       seized his clothes, inspected the spot, collected samples of bloodstained
 F     earth as well as normal earth and prepared site map (Ext. PW N.A.)
       and seizure memos. The accused—appellant was arrested on 20th May,
       2006 and one iron rod being the weapon of assault has been recovered
       at his instance and sent it for chemical examination. Having recorded
       statements of witnesses under Section 161, Cr.P.C. the I.O. carried on
 G     the investigation in which it was revealed that the motive behind the
       accused assaulting the deceased was actually related to a prior tussle
       between them during the daytime at the shop of the deceased over a
       financial transaction. Allegedly, basing on the guarantee and undertaking
       given by the accused—appellant, the deceased supplied some G.I. sheets
       to one Gias-ud-Din. When the appellant came to the shop of the deceased,
 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                                  1127
                [N. V. RAMANA, J.]

he insisted the appellant to make payment. Over that issue, there occurred      A
a scuffle between the appellant and the deceased. The passersby including
Farid Iqbal (PW1), SajadAhmed—father of the deceased (PW9), Abid
Hussain (PW10) and Amjad Hanif (PW12) got them separated. While
leaving the shop, the appellant declared that he will see the deceased
anytime, and in the evening when the deceased and his father (PW9)
                                                                                B
were going to their home, the accused met them on the way and assaulted
the deceased on his head.
       4. As the head injury resulted in the death of Arshad Sajad, charge
against the accused was altered for the offence under Section 302/341,
RPC and accordingly charge sheet waslaid. The accused pleaded not
guilty and claimed to be tried.                                                 C

       5. At the trial, in its endeavour to prove the guilt of the accused,
prosecution had examined as many as 14 witnesses, whereas the accused
in his defencehas examined one witness. The trial Court after a full
fledged trial, came to the conclusion that the prosecution has failed to
prove motive and the statement of sole eyewitness (father of the                D
deceased) stood uncorroborated with the other witnesses, as the
prosecution has failed to establish the guilt of the accused beyond
reasonable doubt has acquitted the accused from the alleged offences
under Section 302/341, RPC.
       6. Aggrieved by the order of acquittal passed by the trial Court,        E
the State of Jammu & Kashmir raised appeal before the High Court.
Upon adjudicating the same, the High Court has come to the contrary
conclusion and observed that the evidence of the sole eyewitness (father
of the deceased) was duly corroborated by oral, documentary and expert
evidence and by improperly rejecting the same, the trial Court has              F
committed grave miscarriage of justice. Therefore, the High Court
reversed the order of acquittal into conviction for the charges under
Section 302/341, RPC and sentenced the accused—appellant as stated
hereinabove. That is how the accused is in appeal before this Court.
       7. Before analyzing the evidence available on record and going           G
into the legal aspects of the same, we feel it appropriate to first deal with
the contentions advanced by the learned counsel on either side.
       8. Mohd. Aslam Goni, learned senior counsel representing the
accused-appellant has advanced hisargumentsstrongly pointing out that
in the entire case there were several lapses on the part of prosecution
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1128            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A     which were ignored by the High Court, while reversing the well considered
       judgment of the trial Court. Disputing the genesis of FIR itself, learned
       senior counsel argued that as per the prosecution,on 18.5.2006, oral report
       was given by the deceased at 8.30 p.m. at police station, Bhaderwah
       about the occurrence, based on which FIR was registered. According to
       I.O.—Nisar Ahmed (PW14), he recorded the statement of deceased at
 B
       10 p.m. in the hospital.But, the said statement is missing in the main file
       which was replaced with a statement in the handwriting of ASI—Jan
       Mohd (DW1), who has not been examined as a prosecution witness.
       The reason behind replacing the statement of I.O. with that of ASI Jan
       Mohd is only with a view to implicate the appellant in the crime.
 C            9.           It was further contended that despite there being no
       proof of strong motive for the appellant to commit the offence,nor there
       being any independent eyewitness to the incident,the fact that only one
       injury has been suffered by the deceased, the High Court should not
       have taken a different view to the one taken by the trial Court.The High
 D     Court should have dealt with the case with high standard of presumption
       of innocence on the part of the appellant. Supporting the decision
       rendered by the trial Court, learned senior counsel relied on the judgments
       of this Court in Rathinam @ RathinamVs. State of Tamil Nadu&
       Anr., (2011) 11 SCC 140, Bindeshwari Prasad Singh & Ors. Vs. State
       of Bihar & Anr., (2002) 6 SCC 650 and Sunil Kumar
 E     SambhudayalGupta & Ors. Vs. State of Maharashtra, (2010) 13
       SCC 657, submitted that interference by the High Court is not justified in
       the present case inasmuch as there is no manifest error, perversity or
       illegality in the trial Court’s judgment.
              10. The learned senior counsel tried to impress upon this Court
 F     that the evidence of PW9 i.e. father of the deceased, is not trustworthy
       and he is an interested witness. Further, as a matter of fact, it can be
       found from Page No. 64 of account (khata) that there was nothing to
       establish that the accused stood as guarantor to pay the sum due by
       Gias-ud-Din.Taking strength from the deposition of PW9 that in 2007
 G     one VillayatGoni paid him the amount due in the name of Gias-ud-Din, it
       was argued that prosecution has failed to prove the motive and the alleged
       offence beyond reasonable doubt for the reason that it was someone
       else who paid the due amount but the prosecution had wrongly projected
       the accused as guarantor and unnecessarily implicated the appellant in
       the case.
 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                               1129
                [N. V. RAMANA, J.]

       11. Relying further on the decisions of this Court in Shivaji         A
SahabraoBobade& Anr.Vs.State of Maharashtra, (1973) 2 SCC 793,
State of U.P. Vs. Kishanpal& Ors., (2008) 16 SCC 73,
NallabothuVenkaiahVs. State of Andhra Pradesh, (2002) 7 SCC 117
and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9 SCC 719,
learned senior counsel submitted that the High Court ignored the
                                                                             B
important legal principles while convicting the accused,who was already
declared innocent and acquitted by the trial Court, under Section 302,
RPC the circumstances should be conclusive in nature.The prosecution
stated that at the time of occurrence, one Aslam and Zakir were also
there at the spot, but they were not named as witnesses nor were they
examined. Even the alleged eyewitness, father of the deceased, has not       C
exactly seen at whose hands the deceased was injured. It can be found
from his own words that he was walking one meter ahead of the deceased
and when he turned back on hearing the cry of his son, the appellant
disappeared from there. In such situation, the prosecution case solely
based on the evidence of PW9cannot be believed, as his evidence is
                                                                             D
filled with assumptions and presumptions as well as surmises and
conjectures.
       12. The next contention of the learned senior counsel is that when
the deceased was taken to hospital he was in complete consciousness,
but the attending Doctor did not adopt proper course of treatment so as
to save the life of the deceased. The Doctor did not even advise for X-      E
ray. In fact, the death of the deceased should have been ascribed to
medical negligence.
       13. On the other hand, learned counsel appearing for the State of
Jammu & Kashmir, while supporting the judgment of the High Court,
submitted that there is enough material on record to prove the guilt of      F
the accused which is duly supported by the evidence of witnesses and
corroborated by the medical evidence. Immediately after the occurrence,
the deceased personally visited the police station and apprised under
what circumstances the accused attacked him. Even within three hours
after the occurrence, the I.O. recorded the statement of injured victim      G
(deceased) when he was sent to the hospital for treatment wherethe
deceased had further explained to the I.O.in detail about the altercation
took place during the day in connection with the financial transaction for
which the accused was a guarantor. When there is direct evidence
available on record in the form of statement of the deceased himself and
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1130            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A     the statement of the eyewitness SajadAhmed—father of the deceased
       (PW9), prosecution is no longer burdened with proving motive. At the
       same time, it is also immaterial to examine all the witnesses who carried
       the injured to the hospital. Similarly, on the advice of Ali Mohammad
       (PW3) to inform about the assault to police, when the deceased hurriedly
       reached the police station, his focus would naturally be limited only to
 B
       the extent of informing the police about how he got injured and to get
       immediate medical assistance, and it shall not be expected from a seriously
       injured person to narrate whole episode at that point of time. In such
       circumstances, the High Court has rightly assessed the incriminating
       facts and circumstances and by a prudent judgment, reversed the order
 C     of acquittal into conviction for which the accused—appellant was liable
       as he had made an inhuman attack on the deceased merely for demanding
       to pay the money for which he stood as a guarantor.
              14. Having heard the learned counsel on either side, after going
       through the material available on record, we would like to deal with the
 D     contentions one after the other. The first and foremost contention, the
       learned senior counsel appearing for the accused-appellant advanced is
       with regard to the credence to be attached to the FIR No. 53 of 2006
       registered on 18.5.2006, we find from the material on record that soon
       after the occurrence, the deceased as well as his father—Sajad Ahmed
       (PW9) rushed to the clinic of Ali Mohammad (PW3) for first aid, then
 E     on his advice they went to the police station at about 8.45 p.m. and
       lodged an oral complaint. Based on the same, FIR No. 53/2006 was
       registered and investigation has been entrusted to Ved Raj 185, Head
       Constable. This fact is affirmed by the testimonies of father of the
       deceased (PW9), Ali Mohammad (PW3) and PW14—Nissar Ahmed,
 F     I.O. According to PW3, on the day of occurrence, the deceased and his
       father along with 2-4 persons visited his clinic seeking treatment to the
       injured/deceased whereupon without providing any treatment, he advised
       them to go to the police station at first instance.
              15. PW14—Nissar Ahmed, I.O. stated that the oral report was
 G     written by munshi and he had put his signature on it (Parcha-53). After
       completing that formality, he assigned the investigation to HawaldarVed
       Raj. Then at the first instance, he had sent the injured to hospital, and
       later on hevisited the injured at about 11 p.m. in the hospital.Whereupon
       finding his condition to be serious, he took up the investigation and
       recorded the statement of injured and added offence under Section 307,
 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                                   1131
                [N. V. RAMANA, J.]

RPC. He specifically mentioned that the statement recorded under                 A
Section161, Cr.P.C. was not in his own handwriting but he has affixed
his signature on it. In our opinion, there is no doubt that the FIR was
lodged in this case on the basis of the oral complaint made by the
deceased at the police station which is a reliable document and made
soon after the incident. Time and again this Court has illustrated that the
                                                                                 B
first information report is not an encyclopaedia. It is not necessary that
it should contain each and every detail concerning the offence at the
time of lodging of FIR. Here in the present case, the informant who had
received a severe head injury and accompanied by his father (PW9),
went to the clinic of PW3 and later to the police station, would have
been under great tension. Their mental condition in such a situation can         C
be visualised. In such a state of mind, failure on their part to disclose the
entire sequence of events in the first information report is neither unnatural
nor fatal to the case of the prosecution. The trial Court has misconstrued
the two statements of the deceased, one given at the police station
immediately after the occurrence and the other, at the hospital while his
                                                                                 D
condition was deteriorating. We are of the view that the subsequent
statement of the deceased at the hospital as recorded by the I.O. is duly
corroborated by the evidence of PW9 and absolutely there is no reason
to disbelieve the same and the contention in this regard is meritless.
      16. Another argument advanced is that there was no motive to
commit the offence and in the absence of strong motive, the appellant            E
cannot be held guilty under Section 302, RPC. In the present case, motive
can be traced from the evidences produced by the prosecution with
regard to the prior incident that took place between the deceased and
accused in connection with payment of money over a transaction where
the accused stood as a guarantor. Because of the earlier scuffle, the            F
subsequent incident has occurred in which the accused hit the deceased
with an iron rod due to which the deceased lost his life.It is appropriate
to observe that in Halsbury’s Laws of England, 3rd Edition, with regard
to ‘motive’, it is stated that “the prosecution may prove, but it is not
bound to prove the motive for a crime”. ‘Motive’ is an emotion which
compels the person to do a particular act. But in all the cases, it will be      G
very difficult for the prosecution to prove the real motive. Motive is a
double edged weapon when there is a direct and reliable evidence
available on record, motive loses its importance. In a case of
circumstantial evidence, motive assumes greater importance than in the
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1132            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A     case of direct evidence. In a case of direct and compelling evidence,
       even assuming that no motive is attributed, still the prosecution version
       has to be examined. As regards to the importance of existence of motive
       in a criminal case, here it is worthwhile to look at the ratio laid down by
       this Court in Shivaji Genu Mohite v. State of Maharashtra,AIR 1973
       SC 55:
 B
             “In case the prosecution is not able to discover an impelling motive,
             that could not reflect upon the credibility of a witness proved to
             be a reliable eye-witness. Evidence as to motive would, no doubt,
             go a long way in cases wholly dependent on circumstantial
             evidence. Such evidence would form one of the links in the chain
 C           of circumstantial evidence in such a case. But that would not be
             so in cases where there are eye-witnesses of credibility, though
             even in such cases if a motive is properly proved, such proof
             would strengthen the prosecution case and fortify the court in its
             ultimate conclusion. But that does not mean that if motive is not
 D           established, the evidence of an eye-witness is rendered
             untrustworthy”.
              17. In the light of the above, wehave to examine whether the
       prosecution was successful in proving the motive and what is the evidence
       available on record to prove the alleged act of the accused. In the instant
 E     case, according to PW9, the deceased had supplied some G.I. tin sheets
       to one Gias-ud-Din and the accused stood as guarantor for its payment.
       On the day of occurrence, when the deceased demanded to pay the
       money from the accused, he got annoyed and caught hold of the neck of
       the deceased and started beating him by which some bruises also
       appeared on the right side of his neck. At that point of time, Farid Iqbal
 F     (PW1), Amzad Hanif (PW12) and Abid Hussain (PW10) were present
       there and separated them. The accused then threatened the deceased
       that he would see him anytime. After the closure of shop, when deceased
       was going home along with his father, on their way the accused holding
       an iron rod in his hands, appeared from opposite direction, intercepted
 G     their way and abused them. When they moved forward, the accused hit
       the deceased on his head with the rod due to which he fell down with
       bleeding. When PW9 responded to the cry of his son, the accused
       disappeared from the scene. Thereafter they went to a local doctor
       (PW3) for first aid and then reported the matter at police station.

 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                              1133
                [N. V. RAMANA, J.]

       18. It is also evident from the record that the iron rod of 3 feet   A
length and 8 centimeter circumference, used as weapon of offence was
recovered by the police at the instance of the accused vide Ext. PW-
MH I on 21.5.2006. The evidence of Mohd. Hafeez (PW2) and Abid
Hussain (PW10) also corroborate the testimony of PW9 and prove the
attack as PWs 2 & 10 having heard the same from the deceased himself.
                                                                            B
PW10 has categorically deposed to have witnessed the scuffle between
the accused and deceased at the latter’s shop in the daytime, and also
the threat given by the accused. He further stated that the deceased
was taken to the hospital on his motor cycle and he accompanied the
deceased throughout till the last rites of the deceased. PWs 2 and 10
further stated that they have also witnessed the recovery of weapon of      C
offence (iron rod) at the instance of accused, as the weapon was
recovered by the police in their presence. The said recovery of weapon
in the presence of PWs 2 & 10 and their depositions would therefore
corroborate and strengthens the case of prosecution.
       19. We have also given our precise consideration to the evidence     D
of Dr. Raj Kumar—PW 13 who conducted postmortem on the body of
the deceased on 19th May, 2006. The postmortem report (Annexure P/
2) shows that the deceased sustained the following injuries:
      1. Lacerated wound bone deep 1.5 cm x 0.25 cm on left frontal
         parietal region (Stitched).                                        E
      2. Three linear scratch marks on right side of neck each ½ cm. in
         length.
      On internal examination, the Doctor found
      1. Linear left temporal frontal region                                F
      2. Extradural haematoma on left lamprey parietal region
      3. Meiurages over left temporal lobe torn
      4. Underlying left temporal parietal lobe lacerated
       The Doctor opined that the cause of death was head injury resulted   G
by a blunt object within the duration of 12 hours. It was specifically
deposed by the Doctor in his evidence that the injuries found on the body
of the deceased were sufficient to cause death. It was further revealed
that while undergoing initial treatment at the hospital, the deceased
narrated to him that when he was going towards his home, someone had
                                                                            H
1134             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


 A     assaulted. In his cross examination, the Doctor made it clear that when
       the deceased was kept in observation, he was in full senses and a
       specialist surgeon was also called. Ambulance was also provided to shift
       the patient to GMC, Jammu for providing better treatment. He could not
       detect the fracture of left frontal parietal bone initially due to non-
       availability of X-ray, but even if it was detected, it could be fatal, but in
 B
       some cases if specialized treatment is provided life could be saved. In
       our considered view, the postmortem report and the evidence of Dr. Raj
       Kumar (PW13) fully corroborates with the evidence of PW9.
              20. Considering the evidence of other prosecution witnesses, we
       find that Farid Iqbal (PW1), an independent witness, proved the scuffle
 C     that took place at the shop of the deceased, and the angered accused
       admonishing and threatening the deceased that he will see him anytime.
       PW4—Nazir Ahmed, deposed that police had taken his signatures at
       the time of postmortem on blank paper. However, he proved to have
       received the dead body of the deceased (Ext. PW-NH). PW5—Riyaz
 D     Ahmed also while proving the receipt of dead body of the deceased,
       deposed that 20-25 days after the death of deceased, police seized a
       register from the shop of deceased, to which he was the witness. PW7—
       Mohammad Ramzan stated that when he visited the hospital in the year
       2006, the clothes were put off from the body of the deceased in his
       presence. Accordingly he witnessed the seizure of clothes of the deceased
 E     and put his signature on the seizure memo (Ext. PW-MR). Mohd. Saleem
       (PW8) also deposed that police seized the clothes of the deceased and
       he had put his signature on the seizure memo. PW11—Ishteyaq Ahmed
       and PW12—Amjad Hanif also supported the prosecution case in toto.
             21. Upon considering the evidence of defence witness Jan Mohd.
 F     (DW1), it appears that at the relevant time he was working as ASI, he
       can very well write and read Urdu, whereas the I.O. (PW14) could not
       write Urdu. Therefore, on the directions of I.O., he prepared exhibits
       such as site plan (Ex. PW NA), seizure memo (Ex. PW SH II),
       FardInkshaf (Ex. PW NH), FardBaramdgi (Ex. PW NH I),
 G     FardSuprdnama (Ex. PW SH III), Fard Jama Talashi (Ex. PW NAV)
       and statements of witnesses, in his own handwriting. In his cross-
       examination, it has been revealed that he is a distinct relative to the
       accused and educated only up to middle standard. Investigation has not
       been carried out by him, but only on the instructions of I.O. he drafted
       the memos wherein his integrity remained doubtful as he tried to alter
 H
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                                 1135
                [N. V. RAMANA, J.]

the prosecution case. In such a case, we cannot give any weightage to          A
his deposition.
       22. It was contended that the accused was not at all a guarantor
to the alleged transaction and he had been unnecessarily implicated in
this case. In our view, there is no need for this Court to go into the roots
of the financial transaction to find out whether the deceased, a smalltime     B
merchant of hardware items, kept his account books in proper order or
not and who is debtor and who is guarantor. Our concern is to see whether
the accused has committed the overt act that led to the death of deceased
and whether the accused is liable to be punished in accordance with
law. The trial Court appears to have misguided itself in appreciating the
evidence on record and acquitted the accused by ignoring the material          C
and legal aspects surrounding the case.
      23. In view of the above discussion, we are of the considered
view that the direct oral evidence available on record coupled with the
medical evidence, points at the guilt of the accused and not proving the
motive for commission of the offence lost its significance in the facts of     D
the case.
       24. The learned senior counsel submits that in the present case,
according to the prosecution, Sajad Ahmed, father of the deceased (PW9)
was the only person who was present at the scene of offence at the
time of occurrence. The entire case, therefore, depends on the veracity        E
of his evidence. PW9, being father of the deceased, the appellant—
accused had naturally made the allegation that he is an interested witness
and therefore his evidence is not reliable. We are not able to appreciate
such contentions. This Court considered the aspect of truthfulness of an
interested witness in several cases. In Dalip Singh& Ors. v. State of          F
Punjab, (1954) 1 SCR 145 it is observed:
      “Ordinarily, a close relative would be the last to screen the real
      culprit and falsely implicate an innocent person. It is true, when
      feelings run high and there is personal cause for enmity, that here
      is a tendency to drag in an innocent person against whom a witness       G
      has a grudge along with the guilty, but foundation must be laid for
      such a criticism and the mere fact of relationship far from being a
      foundation is often a sure guarantee of truth”.
      25. In Masalti v. State of U.P., (1964) 8 SCR 133 this Court
observed:
                                                                               H
1136            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


 A           “There is no doubt that when a criminal Court has to appreciate
             evidence given by witnesses who are partisan or interested, it has
             to be very careful in weighing such evidence. Whether or not
             there are discrepancies in the evidence; whether or not the evidence
             strikes the Court as genuine; whether or not the story disclosed
             by the evidence is probable, are all matters which must be taken
 B
             into account.
             But it would, we think, be unreasonable to contend that evidence
             given by witnesses should be discarded only on the ground that it
             is evidence of partisan or interested witnesses. Often enough,
             where factions prevail in villages and murders are committed as a
 C           result of enmity between such factions, criminal Courts have to
             deal with evidence of a partisan type.
             The mechanical rejection of such evidence on the sole ground
             that it is partisan would invariably lead to failure of justice”.
 D            26. There is no proposition in law that relatives are to be treated
       as untruthful witnesses. On the contrary, reason has to be shown when
       a plea of partiality is raised to show that the witnesses had reason to
       shield actual culprit and falsely implicate the accused [See :Harbans
       Kaur& Anr. v. State of Haryana, 2005CriLJ2199].

 E            27. If the evidence of an eyewitness, though a close relative of
       the victim, inspires confidence, it must be relied upon without seeking
       corroboration withminute material particulars. It is no doubt true that the
       Courts must be cautious while considering the evidence of interested
       witnesses. In his evidence, the description of the incident by PW9 clearly
       portrays the way in which the accused attacked the deceased causing
 F     fatal head injury as propounded by the prosecution. The testimony of the
       father of deceased (PW9) must be appreciated in the background of the
       entire case.
             28. In our opinion, the testimony of PW9 inspires confidence, and
       the chain of events and the circumstantial evidence thereof completely
 G     supportshis statements which in turn strengthens the prosecution case
       with no manner of doubt. We have no hesitation to believe that PW9 is
       a ‘natural’ witness to the incident. On a careful scrutiny, we find his
       evidence to be intrinsically reliable and wholly trustworthy.
             29. The argument that the evidence of PW9 cannot be weighed
 H     with as he was walking one meter ahead of the deceased at the time of
  KHURSHID AHMED v. STATE OF JAMMU AND KASHMIR                               1137
                [N. V. RAMANA, J.]

incident and he cannot say that it was accused who hit the deceased          A
with iron rod, does not sound correct and it cannot be given any weight
considering the circumstance as a whole. It was also contested that the
eyewitness did not suffer any injury. It is not necessary that to prove an
offence, every eyewitness who had seen the accused hitting the victim
should also receive injuries. Such contentions are meritless and do not
                                                                             B
fall for consideration.
       30. When analyzing the evidence available on record, Court should
not adopt hyper technical approach but should look at the broader
probabilities of the case. Basing on the minor contradictions, the Court
should not reject the evidence in its entirety. Sometimes, even in the
evidence of truthful witness, there may appear certain contradictions        C
basing on their capacity to remember and reproduce the minute details.
Particularly in the criminal cases, from the date of incident till the day
they give evidence in the Court, there may be gap of years. Hence the
Courts have to take all these aspects into consideration and weigh the
evidence. The discrepancies and contradictions which do not go to the        D
root of the matter, credence shall not be given to them. In any event, the
paramount consideration of the Court must be to do substantial justice.
We feel that the trial Court has adopted an hyper technical approach
which resulted in the acquittal of the accused.
       31. The learned counsel strenuously submitted that in an appeal       E
against acquittal, the scope of interference by the appellate Court is
very narrow and the High Court erred in interfering with the well
considered judgment of acquittal. It is appropriate to refer Padam Singh
v. State of U.P.,(2000) 1 SCC 621, in which while explaining the duty of
the appellate court, this Court has expressed thus:
                                                                             F
      “It is the duty of an appellate Court to look into the evidence
      adduced in the case and arrive at an independent conclusion as to
      whether the said evidence can be relied upon or not and even if it
      can be relied upon, then whether the prosecution can be said to
      have been proved beyond reasonable doubt on the said evidence.
      The credibility of a witness has to be adjudged by the appellate       G
      court in drawing inference from proved and admitted facts. It
      must be remembered that the appellate court, like the trial court,
      has to be satisfied affirmatively that the prosecution case is
      substantially true and the guilt of the accused has been proved
      beyond all reasonable doubt as the presumption of innocence with       H
1138                SUPREME COURT REPORTS                        [2018] 6 S.C.R.


 A           which the accused starts, continues right through until he is held
             guilty by the final Court of Appeal and that presumption is neither
             strengthened by an acquittal nor weakened by a conviction in the
             trial court.
              32. The power of the appellate Court in an appeal against acquittal
 B     is the same as that of an appeal against conviction. But, in an appeal
       against acquittal, the Court has to bear in mind that the presumption of
       innocence is in favour of the accused and it is strengthened by the order
       of acquittal. At the same time, appellate Court will not interfere with the
       order of acquittal mainly because two views are possible, but only when
       the High Court feels that the appreciation of evidence is based on
 C     erroneous considerations and when there is manifest illegality in the
       conclusion arrived at by the trial Court. In the present case, there was
       manifest irregularity in the appreciation of evidence by the trial Court.The
       High Court based on sound principles of criminal jurisprudence, has
       interfered with the judgment of acquittal passed by the trial Court and
 D     convicted the accused as the prosecution was successful in proving the
       guilt of the accused beyond reasonable doubt.
             33. In view of the foregoing discussion and a conspectus of all the
       material would pave way to conclude that the prosecution has proved
       the case beyond reasonable doubt and the appeal preferred by the
 E     accused is bereft of any substance and accordingly dismissed.


       Ankit Gyan                                                   Appeal dismissed.



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