Supreme Court of India
MD. JABBAR ALI & ORS.versusTHE STATE OF ASSAM
- Citation
- 2022 INSC 1096
- Decided
- 17 October 2022
- Disposal
- Appeal(s) allowed
- Bench
- AJAY RASTOGI
Holding
The convictions were set aside because the prosecution evidence was riddled with material contradictions and lacked any independent, reliable witness, making the findings of the trial and High Courts perverse.
Summary
The accused were convicted by a Fast Track Court and the conviction was upheld by the High Court for offences under IPC sections 302 r/w 149, 148, 123 and 447. On appeal, the Supreme Court examined the testimony of ten prosecution witnesses, all of whom were related to the deceased and to each other, and found material contradictions regarding who delivered the fatal blow. The Court held that the prosecution failed to produce any independent or impartial witness and that the inconsistencies rendered the evidence wholly unreliable, failing to prove guilt beyond reasonable doubt. It also clarified that while related witnesses are not per se inadmissible, their testimonies must be scrutinised and can be rejected if material discrepancies exist. Consequently, the Court set aside the convictions and acquitted all appellants.
Issues considered
- Whether the conviction under IPC sections 302 r/w 149, 148, 123 and 447 can be sustained in view of material contradictions in witness testimony.
- Whether the High Court erred in upholding the conviction despite the lack of independent witnesses and the presence of related/interested witnesses.
- Whether the Supreme Court may re‑appreciate evidence under Article 136 when the findings of lower courts are perverse or based on mis‑reading of evidence.
- Whether the prosecution proved the essential ingredients of an unlawful assembly under Section 149 of the IPC.
- Whether the credibility of related or interested witnesses can be relied upon absent corroboration.
Legislation cited
- Code of Criminal Procedure, 1973s. 313, s. 374
- Indian Evidence Act, 1872s. 103, s. 11
- Indian Penal Code, 1860s. 123, s. 148, s. 149, s. 302, s. 447
Subjects
Indian Penal CodeSection 302Section 149Unlawful assemblyEvidenceRelated witnessesMaterial discrepancyConviction set asideCriminal appealReappreciation of evidence
Judgment
[2022] 15 S.C.R. 773 773
MD. JABBAR ALI & ORS. A
v.
THE STATE OF ASSAM
(Criminal Appeal No. 1105 of 2010)
OCTOBER 17, 2022 B
[AJAY RASTOGI AND B. V. NAGARATHNA, JJ.]
Penal Code, 1860: ss. 302 r/w 149, 148,123 and 447 – Trial
court convicted accused persons under different provisions of IPC
including ss. 302 r/w 149, 148,123 and 447 – Prosecution had
C
examined ten witnesses before trial court – High Court upheld the
judgment and sentence passed by trial court – Propriety of conviction
and sentence challenged on the ground that inter alia, witnesses PW-
1 to PW-6 were related to each other – Prosecution failed to examine
any independent and impartial witness and there were material
contradictions in the depositions made by the witnesses – Held: D
Court in appeal may reassess the evidence when there has been an
improper reception or rejection of evidence, which if discarded or
received would leave the conviction unsupportable – Court may
also interfere in a case where there has been a misreading of vital
evidence or the Court omits to notice the important points in favour
E
of the accused – In the instant case, there were variations in the
evidence of PW-6 who was the first informant and evidence of
PW-1, PW-2, and PW-4 regarding as to who gave fatal blows to the
deceased – Trial court as well as High Court rightly did not rely on
the evidence of these witnesses who were highly inconsistent with
each other in holding the concerned accused guilty – PW-3, PW-4 F
and PW-5 were not eye witnesses and their deposition did not lend
any credence to the prosecution case on the point of who actually
stabbed the deceased person – The inherent contradictions in the
evidence of the prosecution-witnesses did not prove the case of the
prosecution beyond reasonable doubt – Conviction set aside.
G
Evidence – Credibility of related/interested/partisan witnesses
– Just because the witnesses are related/interested/ partisan
witnesses, their testimonies cannot be disregarded – However, when
the witnesses are related/interested, their testimonies have to be
scrutinized with greater care and circumspection – In the instant
H
773
774 SUPREME COURT REPORTS [2022] 15 S.C.R.
A case, it was clear from the testimonies of the prosecution witnesses
that all the witnesses were related to the deceased and to each other,
there was not a single independent witness for prosecution –
Moreover, there was contradiction and inconsistency in their
testimonies – In such circumstances, the evidence could not be relied
upon to convict the accused persons.
B
Evidence: Inconsistent testimonies – Effect on prosecution
case – Courts have to label as to which category a discrepancy can
be categorized – Material discrepancies corrode the credibility of
the prosecution’s case while insignificant discrepancies do not do
so – In the present case there are material discrepancies in the
C testimonies of the witnesses and the same is fatal to the case of the
prosecution – The evidence of the prosecution is wholly unreliable
and does not prove the alleged offences against the accused-
appellants.
Law of evidence: Material discrepancy in the evidence –
D Appreciation thereof.
Allowing the appeals, the Court
HELD: 1. There are variations in the evidence of PW-6
who was the first informant in the instant case and the evidence
E of PW-1, PW-2 and PW-4 regarding as to who gave the fatal blows
to deceased. The finding of the (trial court) Fast Track Court
that the evidence of PW-6 finds corroboration with the evidence
of PW-1 and PW-2 is erroneous and cannot be sustained. The
Fast Track Court as well as the High Court ought not to have
relied on the evidence of these witnesses which are highly
F inconsistent with each other in holding the concerned accused
guilty. [Para 41][793-H; 794-A, D-E]
2. The evidence of PW-3, who was the brother of the
deceased, also does not support the case of the prosecution since
PW-3 was not an eye-witness but was merely a hearsay witness
G who, in his deposition stated that he was informed by PW-4 that
accused Md. Moyan Ali stabbed the deceased On examining the
deposition of this witness PW-3, it is clear that the same is not
corroborated by the evidence of any other witness such as PW-1
and PW-2 who stated that accused Md. Jabbar Ali stabbed the
deceased and PW-6 who stated that accused Md. Sahed Ali
H
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 775
stabbed the deceased. The finding of the Fast Track Court that A
the evidence of PW-3 lends support to the correctness of the
prosecution case is therefore incorrect. Thus, the evidence of
PW-3 in no way lends succor to the case of the prosecution. [Para
42][794-E-H]
3. PW-4, who is not an eye-witness to the occurrence. As B
per his own deposition, he went to the place of occurrence after
he saw many people gathered there. According to him, accused-
MH assaulted the deceased, however, during his cross-
examination, he clearly stated that he did not know as to who
told him that accused-MH stabbed the deceased. PW-5 was also
not an eye-witness to the incident of deceased being killed by C
the accused persons. He has failed to state which one of the
accused persons actually stabbed the deceased. The evidence of
PW-5 thus, does not lend any credence to the case of the
prosecution. [Paras 43, 44][795-A-D]
4. There is no clinching evidence so as to prove beyond D
reasonable doubt the case of the prosecution as there are
contradictions in the evidence/depositions of PW-1, PW-2 and
PW-5. Moreover, the evidence of PW-6, the informant is
inconsistent with the depositions of PW-1, PW-2 and PW-5. We
find that the inherent contradictions in the evidence of the E
prosecution-witnesses does not prove the case of the prosecution
beyond reasonable doubt. [Para 46][795-E-G]
5. Just because the witnesses are related/interested/
partisan witnesses, their testimonies cannot be disregarded,
however, it is also true that when the witnesses are related/ F
interested, their testimonies have to be scrutinized with greater
care and circumspection. In the instant case, it is seen from the
testimonies of the prosecutyion witnesses that all the witnesses
are related to the deceased and to each other. It is necessary to
state here that the evidence of the related witnesses can be
rejected if there are material contradictions and inconsistencies G
found in their testimonies. It is observed that there have been
material improvements in the testimony of PW-1. PW1- in his
examination deposed that accused-MH stabbed deceased
H
776 SUPREME COURT REPORTS [2022] 15 S.C.R.
A however in his cross-examination, PW-1 stated that he had not
told the police that accused-MH stabbed deceased. The same is
an improvement in the testimony which has to be borne in mind.
All the witnesses have given contradictory versions as to who
gave the fatal blow to deceased and the same amounts to material
contradictions. Owing to the substantial and material
B
contradictions in the testimonies of the prosecution witnesses,
the evidence of the prosecution is considered wholly unreliable.
Additionally, the prosecution has examined only related witnesses
and not a single independent witness. Therefore, in the facts and
circumstances of the case, the evidence does not prove the alleged
C offences against the accused-appellants. [Paras 48, 51, 52 and
54][796-C; 797-B-E; 798-A-B]
6. Another aspect that this Court would like to look into is
as to what extent this Court can reappreciate and reappraise the
evidence on record. In a catena of cases, it has been held that
D though in cases of concurrent findings of fact, this Court will
ordinarily not interfere with the said findings, this Court is
empowered to do so if in case it finds inter alia, misreading of the
evidence or where the conclusions of the High Court are
manifestly perverse . In the present case at hand as well, the
finding of conviction was recorded overlooking the material
E contradictions in the evidence of the prosecution witnesses and
therefore the said conviction deserves to be set-aside [Paras 55
and 56][798-B-D; 798-D-E]
Saravanabhavan v. State of Madras AIR 1966 SC 1273;
Kashmira Singh v. State of Madhya Pradesh AIR 1952
F SC 159 : [1952] SCR 526; Gangadhar Behera and
Ors. v. State of Orissa (2002) 8 SCC 381 : [2002] 3
Suppl. SCR 183; Raju alias Balachandran and Ors. v.
State of Tamil Nadu (2012) 12 SCC 701 : [2012] 11
SCR 109; Ganapathi and Anr. v. State of Tamil Nadu
G (2018) 5 SCC 549 : [2018] 3 SCR 51; State of
Rajasthan v. Kalki & Anr. (1981) 2 SCC 752 : [1981] 3
SCR 504; Ashoksinh Jayendrasinh v. State of Gujarat
(2019) 6 SCC 535 : [2019] 7 SCR 309 – relied on.
Sohrab v. State of Madhya Pradesh (1972) 3 SCC 751
H : [1973] 1 SCR 472; Bharwada Bhoginbhai Hirjibhai
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 777
v. State of Gujarat (1983) 3 SCC 217 : [1983] 3 SCR A
280; State of U.P. v. M.K. Anthony (1985) 1 SCC 505;
Prithu @ Prithi Chand v. State of Himachal Pradesh
(2009) 11 SCC 588 : [2009] 2 SCR 765; State of
Madhya Pradesh v. Chhaakki Lal (2019) 12 SCC 326
: [2018] 12 SCR 184; Dudh Nath Pandey v. State of
B
Uttar (1981) 2 SCC 166 : [1981] 2 SCR 771; Jitender
Kumar v. State of Haryana (2012) 6 SCC 204 : [2012]
4 SCR 408; State of Maharashtra v. Narsingrao
Gangaram Pimple (1984) 1 SCC 446 – referred to.
Case Law Reference
C
[1973] 1 SCR 472 referred to Para 22.2
[1983] 3 SCR 280 referred to Para 22.2
[2009] 2 SCR 765 referred to Para 22.2
[2018] 12 SCR 184 referred to Para 22.2 D
[1981] 2 SCR 771 refereed to Para 22.3
[2012] 4 SCR 408 referred to Para 22.3
[1952] SCR 526 referred to Para 26
[2002] 3 Suppl. SCR 183 relied on Para 48 E
[2012] 11 SCR 109 relied on Para 49
[2018] 3 SCR 51 relied on Para 50
[1981] 3 SCR 504 relied on Para 52
[2019] 7 SCR 309 relied on Para 56 F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1105 of 2010.
From the Judgment and Order dated 21.08.2009 of the High Court
of Gauhati (The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram and Arunachal Pradesh) in Criminal Appeal No. 48 of G
2007.
With
Criminal Appeal No. 1128 of 2010.
H
778 SUPREME COURT REPORTS [2022] 15 S.C.R.
A Raj Kishor Choudhary, Shakeel Ahmed, Anupam Bhati, Nakul
Choudhary, Advs. for the Appellants.
Shuvodeep Roy, Arnav Singh Deo, M/s Corporate Law Group,
Advs. for the Respondent.
The Judgment of the Court was delivered by
B
NAGARATHNA, J.
1. These Criminal Appeals have been filed assailing the common
impugned judgment and order dated 21.08.2009 passed by the Gauhati
High Court in Criminal Appeal No. 48 of 2007 by which the judgment of
C conviction dated 29.12.2006 and order of sentence dated 30.12.2006
passed in Special Case No.46 of 2004 by the Court of Additional Sessions
Judge, Fast Track Court, Barpeta (‘Fast Track Court’, for the sake of
convenience) has been upheld by dismissing the aforesaid appeals and
consequently confirming the conviction of all the accused persons.
D 2. Since both the criminal appeals arise out of a common impugned
judgment, these appeals were heard together and are being disposed of
by this common judgment.
3. For the sake of convenience, the parties shall be referred to as
per their rank before the Fast Track Court.
E 4. The Fast Track Court vide its judgment dated 29.12.2006
convicted the appellants herein viz., Md. Yunush Ali (accused No.1),
Md. Hasan Ali (accused No.2), Md. Omar Ali (accused No.3), Md.
Jabbar Ali (accused No.4), Md. Tabibor Rahman (accused No.5), Mustt.
Hazerabhanu (accused No.6), Mustt. Chandrabanu (accused No.7), Md.
Moyan Ali (accused No.10) and Md. Sahed Ali (accused No.11) [all
F
appellants in Criminal Appeal No. 1105 of 2010] and Md. Ajmot Ali
(accused No. 8) [appellant in Criminal Appeal No. 1128 of 2010].
5. The present appeal qua accused No.1 stood abated vide order
dated 04.10.2010 since he died on 06.11.2009 during the pendency of
the aforesaid appeals.
G
6. By its judgment dated 30.12.2006, the Fast Track Court
sentenced accused Nos.4, 10 and 11 to undergo rigorous imprisonment
for life along with a fine of Rs.2,000/- each and in default thereof to
undergo rigorous imprisonment for two months more, for commission of
offence punishable under Section 302 read with Section 149 of the Indian
H
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 779
[B. V. NAGARATHNA, J.]
Penal Code (‘IPC’, for short). Each of these accused have been A
sentenced to undergo rigorous imprisonment for one year each for the
offence punishable under Section 148 IPC, rigorous imprisonment for
six months for the offence punishable under Section 323 IPC read with
Section 148 IPC and rigorous imprisonment for two months for the
offence punishable under Section 447 IPC read with Section 149 IPC.
B
All the sentences were directed to run concurrently.
7. By the same judgment of the Fast Track Court, accused Nos.
2, 3, 6, 7 and 8 were sentenced to undergo simple imprisonment for a
period of one year each for the offence punishable under Section 148
IPC, simple imprisonment for six months for the offence punishable under
Section 323 IPC read with Section 149 IPC and simple imprisonment of C
two months for the offence punishable under Section 447 IPC read with
Section 149 IPC. All the sentences were directed to run concurrently.
8. By the judgment of the Fast Track Court, accused Nos.1 and 5
were sentenced to undergo simple imprisonment for a period of one
year each for the offence punishable under Section 148 IPC; simple D
imprisonment for one year for the offence punishable under Section 324
IPC read with Section 149 IPC, simple imprisonment for six months for
the offence punishable under Section 323 read with Section 149 IPC
and simple imprisonment for two months for the offence punishable under
Section 447 IPC read with Section 149 IPC. All the sentences were E
directed to run concurrently.
9. Currently, all the accused-appellants are on bail. accused No.4
and accused No.10 were granted bail vide order of this Court dated
18.08.2017; accused No.11 was granted bail by order dated 03.04.2017
and the accused Nos.2, 3, 5, 6, 7 and 8 were granted bail vide order F
dated 25.10.2010.
10. Succinctly stated, the case of the prosecution is that on
19.11.1999 at about 7:00 a.m. when Md. Baju Mollik (PW-6) had gone
to plough his land, an altercation took place between him and accused
No.11. At that time, the other co-accused armed with falla, jong, G
dagger, lathi etc. attacked Md. Baju Mollik. Ekkabar Ali, Md. Samad
Ali (PW-1) and Jonab Ali (PW-4) came to the place of occurrence
whereupon accused No.2 stabbed Ekkabar Ali in the abdomen with a
falla as a result of which Ekkabar Ali became unconscious and
succumbed to his injury shortly thereafter. That accused No.11 stabbed
Md. Samad Ali (PW-1) with a falla whereas accused No.8 stabbed H
780 SUPREME COURT REPORTS [2022] 15 S.C.R.
A PW-1 with a fishing prong. Further, accused No.5 stabbed PW-4 with a
spear. The other accused were present at the place of occurrence being
armed with deadly weapons so that no other person could come and
prevent the commission of the alleged offences.
11. An FIR/Ejahar was lodged by Md. Baju Mollik on 19.11.1999
B at about 9:00 a.m. which was registered at Police Station, Barpeta being
Case No. 1022/99 under Sections 147/148/149/447/323/324/307/302 IPC.
12. After investigation by the police, a Charge Sheet was submitted
against the persons accused of the aforesaid offences.
13. The accused appeared before the Court of learned Additional
C Chief Judicial Magistrate, Barpeta but as the offence punishable under
Sections 307/302 are triable by court of sessions the learned ADJ
committed the case to the Court of Sessions, Barpeta. The accused
appeared before the Court of Sessions, Barpeta but the case was
transferred to the Fast Track Court, Barpeta for adjudication.
D 14. Thereafter, the accused appeared before the Fast Track Court
and faced trial. Charges were framed against the accused for the
respective offences and the same were read over and explained to the
accused to which they pleaded ‘not guilty’ and claimed to be tried.
15. The prosecution examined altogether ten witnesses. Thereafter,
E statements of the accused under Section 313 of the Code of Criminal
Procedure, 1973 (‘CrPC’, for short) were recorded. All the accused
denied the alleged occurrence and submitted that they were innocent
and had been falsely implicated. The accused also examined two
witnesses in support of their defence.
F 16. The Fast Track Court on considering the evidence on record
came to the following conclusions:
(i) on minutely scrutinizing the evidence of PW-1 and PW-2, it
is noted that the evidence of PW-1 lends support to the
evidence of PW-2. The evidence of PWs-1 and 2 also finds
G corroboration with the medical evidence. The presence of
these witnesses at the place of occurrence cannot be
doubted. The two are injured witnesses in the occurrence
and they sustained injuries on the said day. The defence
failed to impeach the credibility of these witnesses in so far
as the involvement of accused persons is concerned and
H
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 781
[B. V. NAGARATHNA, J.]
therefore, evidence of PW-1 and PW-2 are cogent and A
reliable and the same are trustworthy witnesses. The ocular
evidence of these witnesses found corroboration with the
medical evidence adduced by Dr. D.C. Sarma (PW-7) and
Dr. S.C. Sarma (PW-9).
(ii) no doubt that there are minor variations in the evidence of B
PW-6, informant of this case, with the evidence of PWs-1
and 2, but this witness has clearly implicated accused-Sahed
Ali which finds corroboration from the evidence of PWs-1
and 2. There is no ground to disbelieve the version of
PW-6 as well.
C
(iii) the evidence of Inam Ali (PW-3) who is a reported witness,
Jonab Ali (PW-4) who sustained injury on his left ring finger
during the incident and Hakim Khan (PW-5) who was not
an eye-witness but saw the accused near the place of
occurrence, lends credence to the correctness of the
prosecution case. D
(iv) the Investigating Officer Biseswar Singha (PW-10)
prepared the sketch/map of the place of occurrence and
proved the same along with his signature. The sketch/map
shows that the place of occurrence is a disputed land.
Though, both the informant and the accused have claimed E
the land, it transpires from the evidence of the prosecution
that the disputed land where the incident occurred was in
possession of the complainant’s party. During investigation,
PW-10 also seized the weapon of assault and prepared a
seizure list which bears his signature. F
(v) the discrepancies pointed out by the learned counsel for
the defence are trivial in nature and cannot be said to have
destroyed or demolished the case of the prosecution. The
discrepancies are due to normal errors of memory or due
to lapse of time. Further, the evidence of the two defence G
witnesses failed to corroborate the plea of alibi taken by
the accused.
(vi) the defence witnesses failed to establish that the persons
accused were not present at the place of occurrence at the
time of the incident and that they did not kill the deceased
H
782 SUPREME COURT REPORTS [2022] 15 S.C.R.
A person. The reports of the doctor show that the deceased
was killed at 7 or 8 a.m. and the FIR was lodged promptly.
All the accused were named in the FIR. The parties were
known to each other. Thus, it is proved that all the accused
came to the place of occurrence being armed with deadly
weapons such as falla, lathi, surki, etc. by forming an
B
unlawful assembly. Out of them, accused Md. Sahed Ali,
Md. Jabbar Ali and Md. Hasan Ali assaulted PW-1 with a
blunt object; accused-Md. Yunush Ali and Md. Tabibor
Rahman assaulted PW-2 with a sharp pointed weapon;
accused-Md. Ajmot Ali assaulted PW-4 and accused Md.
C Sahed Ali assaulted PW-5. accused-Md. Jabbar Ali, Md.
Sahed Ali and Md. Moyan Ali gave a fatal blow to Ekkabar
Ali as a result of which he died. The weapons used by the
accused were dangerous weapons which clearly indicate
that the accused had an intention to kill Ekkabar Ali. Thus,
all the accused were held guilty and were convicted and
D
sentenced by the Fast Track Court as has already been
mentioned above.
17. In the criminal appeal filed by the accused before the High
Court, on considering the submissions made on their behalf as well as
the State, the High Court noted as under:
E
(i) the evidence of PW-1, PW-2 and PW-5 make it clear that
to prevent PW-6 from ploughing the land where the
occurrence took place, the accused had come to the land in
question armed with dangerous weapons like lathi, fishing
prong, falla and surki. An assembly of the accused persons
F (who were more than five) was formed on the day of
occurrence and deposition of these witnesses make it clear
that the persons accused had intended to take possession
of the land on which PW-6 was ploughing and to prevent
him from further ploughing the land. The prosecution has
G successfully established formation of an unlawful assembly
with a common object.
(ii) the evidence of PW-1, PW-2, PW-5 and PW-6 make it clear
that when the deceased Ekkabar Ali tried to intervene in
the matter, injuries were caused on his abdomen with a
H sharp weapon, resulting in his death and the same were
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 783
[B. V. NAGARATHNA, J.]
caused at the instance of accused-Md. Sahed Ali. The A
causing of injuries was in furtherance of the common object
of unlawful assembly formed by the accused persons. While
it is correct that the evidence of the witnesses are at variance
as regards which one of the accused had inflicted injury on
the abdomen of the deceased, the said fact will not be very
B
relevant if liability is otherwise attributable by virtue of the
provisions of Section 149 of the IPC. Thus, it was held that
Md. Jabbar Ali, Md. Sahed Ali and Md. Moyan Ali, being
members of an unlawful assembly were liable for causing
the death of (deceased) Ekkabar Ali.
(iii) it is an established principle of law that evidence tendered C
by different prosecution witnesses have to be considered
as a whole and such evidence cannot be put in different
compartments and considered separately. The appreciation
must be of the totality of the evidence brought on record by
different witnesses. While it is correct that PW-6 had D
implicated only four of the accused persons, the evidence
of the said witness cannot be construed to be another version
of the prosecution case. The evidence of PW-6 is
supplementary and not in derogation of the evidence of other
prosecution witnesses examined in the present case.
E
(iv) the injuries suffered by PW-1, PW-2, PW-4 and PW-5 are
fully corroborated by the evidence of PW-7 and PW-9 as
well as the reports of the injuries exhibited by the prosecution
witnesses.
(v) the evidence of PW-10 established that PW-6 had given F
the land for cultivation on ‘adhi’ basis and that the accused
person’s right to possess the land is also not established.
(vi) there was no fault with the conviction and sentence of the
accused passed by the Fast Track Court under Section 447
of IPC read with Section 149 of IPC. That when all the G
persons accused in the instant case had formed an unlawful
assembly and the death of Ekkabar Ali was on account of
injuries caused by some members of the unlawful assembly,
the Fast Track Court convicted only three out of eleven
accused under Section 302 of IPC read with Section 149
of IPC and the others were acquitted of the said charges. H
784 SUPREME COURT REPORTS [2022] 15 S.C.R.
A That the reason for such acquittal was not clear, however,
since the acquittal of the said accused was not challenged,
the High Court refrained from getting further into the said
question.
(vii) the judgment and sentence passed by the Fast Track Court
B in respect of each person accused was thus upheld and
affirmed wholly.
18. We have heard Sri Raj Kishor Choudhary, learned counsel for
the appellants-accused and Sri Shuvodeep Roy, learned counsel for the
respondent-State and perused the material on record.
C 19. Learned counsel for the appellants submitted that the High
Court was not right in confirming the judgment of conviction and sentence
passed by the Fast Track Court. The counsel for appellants further
contended that the impugned judgments of the Courts suffer from legal
as well as factual infirmities and the findings therein are perverse and
D are to be set-aside and the appellants are liable to be acquitted.
20. The details of the submissions put forth by the learned counsel
for the appellants-accused can be epitomised as under:
20.1 there was no evidence to show any alleged unlawful
assembly, rioting, murder and all the alleged offences have
E been falsely fabricated by the Investigating Officer-
Biseswar Singha (PW-10). The case of the appellants is
that they were neither present nor participated in the alleged
occurrence.
20.2 the investigation by PW-10 was not done as required by
F law. It was urged by the counsel for the appellants that the
prosecution stated that 100 to 150 people gathered at the
place of occurrence. However, the prosecution failed to
examine any independent and impartial witness. The
witnesses examined were under the influence of PW-10
who falsely implicated the appellants. Further, the witnesses,
G
PW-1 to PW-6, who were examined by the prosecution,
were related to each other. There are material
contradictions in the contents of the FIR and depositions
made by the witnesses. The charge sheet submitted by PW-
10 did not bear his signatures. The land documents of the
H appellants were not verified by PW-10 as the same was
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 785
[B. V. NAGARATHNA, J.]
essential to do so. PW-10 has been negligent in performing A
his duty and did not carry out the investigation in a proper
manner.
20.3 the Courts below failed to note that dispute pertained only
regarding land and the ingredients of offence under Section
149 of the IPC were not made out and, as such, the B
conviction was bad in law. Since the offence under Section
149 of the IPC was not made out, accused Nos. 4, 10 and
11 could not have been convicted under Section 302 of the
IPC. There is no clear version as to who gave the fatal
blow to the deceased.
C
20.4 the Courts below ought to have considered the cardinal
principle of the administration of criminal justice i.e.,
presumption of innocence of the accused. In the present
case, nothing was proved beyond reasonable doubt and the
Courts below were not justified in depriving the accused
persons of the benefit of doubt. D
21. Per contra, learned counsel appearing for the respondent-
State supported the impugned judgment and order passed by the High
Court and the Fast Track Court and contended that the Courts below
have rightly perceived and assessed the evidence on record.
E
22. The submissions of the learned counsel for the respondent-
State can be summarised as under:
22.1 the present case is a case of clinching evidence and the
involvement of the accused in the offence has been proven
beyond reasonable doubt by the prosecution on the strength F
of the depositions of injured eye-witnesses being PW-1, PW-
2, PW-4 and PW-5 which has been corroborated by medical
evidence duly proved on record.
22.2 both the Courts below have concurrently held that the minor
discrepancies in the deposition of PW-6 does not demolish/
G
destroy the consistent depositions of PW-1, PW-2, and PW-
5. The same is actually supplementary and not in derogation
of the evidence of other prosecution witnesses. The
discrepancy regarding who stabbed the deceased does not
negate the value of the testimonies of PW-1 and PW-2 as it
does not go to the root of the matter. As long as the evidence H
786 SUPREME COURT REPORTS [2022] 15 S.C.R.
A contains a ring of truth, it cannot be discarded on account
of existence of discrepancies. The learned counsel for
respondent-State contended that this Court has settled the
principles relating to treatment of evidence when
discrepancies are alleged and relied on the judgments of
this Court in (i) Sohrab v. State of Madhya Pradesh (1972)
B
3 SCC 751, (ii) Bharwada Bhoginbhai Hirjibhai v. State
of Gujarat (1983) 3 SCC 217, (iii) State of U.P. v. M.K.
Anthony (1985) 1 SCC 505, (iv) Prithu @ Prithi Chand
v. State of Himachal Pradesh (2009) 11 SCC 588 and
(v) State of Madhya Pradesh v. Chhaakki Lal (2019)
C 12 SCC 326.
22.3 the plea of alibi as claimed by the accused has not been
sufficiently proven by the defence. It was contended by
the learned counsel for the State that in respect of plea of
alibi, Section 11 and Section 103 of the Evidence Act, 1872
D are relevant. Further, the plea of alibi must be proved with
absolute certainty so as to completely exclude the possibility
of the presence of the person concerned at the place of
occurrence. Neither DW-1 nor DW-2 confirmed the
presence of accused Md. Sahed Ali in his house or the
alleged incident of dacoity at his alibi. The alibi is weak
E and does not create a contradiction to the facts presented
by the prosecution. Learned counsel for the respondent-
State placed reliance on Dudh Nath Pandey v. State of
Uttar (1981) 2 SCC 166, Jitender Kumar v. State of
Haryana (2012) 6 SCC 204 and State of Maharashtra
F v. Narsingrao Gangaram Pimple (1984) 1 SCC 446.
23. Having heard the learned counsel appearing for the respective
parties, the following points would arise for our consideration:
(a) Whether the High Court was justified in confirming the
judgment of conviction and sentence awarded to the
G appellants-accused by the Fast Track Court?
(b) Whether the judgment of the High Court calls for any
interference or modification by this Court?
(c) What order?
H
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 787
[B. V. NAGARATHNA, J.]
24. Before proceeding further, it would be useful to recall the A
approach to be adopted while deciding an appeal against conviction by
the Trial Court as well as by the High Court.
25. Section 374 of the CrPC deals with appeals from convictions.
Though it is a settled law that this Court shall not reassess the evidence
at large and come to fresh opinion as to the innocence or guilt of the B
accused so as to interfere with the concurrent findings of the Courts
below, however this Court may interfere in certain cases. One such
case is when there has been an improper reception or rejection of
evidence, which, if discarded or received would leave the conviction
unsupportable. This Court may also interfere in a case where there has
been a misreading of vital evidence or the Court omits to notice the C
important points in favour of the accused. {See Saravanabhavan v.
State of Madras AIR 1966 SC 1273}
26. Where the finding of fact by the High Court is perverse,
inadequate and had resulted in miscarriage of justice, this Court may
itself hear the appeal on the evidence instead of remanding the case to D
the High Court for a reconsideration of the evidence when the latter
course would lead to unnecessary delay or hardship. {Kashmira Singh
v. State of Madhya Pradesh AIR 1952 SC 159}
27. In order to appreciate the arguments advanced by the learned
counsel for the rival parties and to determine the correctness of the E
conclusions recorded in the judgments passed by the High Court and the
Fast Track Court, it will be necessary to discuss the evidence adduced
by the witnesses examined by the prosecution as well as the defence.
28. PW-1- Md. Samad Ali, is one of the persons allegedly injured
in the occurrence. The deceased Ekkabar Ali was his cousin (paternal F
uncle’s son). According to him, at about 7:00 a.m. on the day of
occurrence, PW-6 had gone to plough his field when Md. Sahed Ali took
the other accused persons to the field of PW-6. Seeing the persons
accused go to the field of PW-6, PW-1 along with the deceased Ekkabar
Ali, PW-2 and PW-3 also came to the field. As per this witness, Md. G
Sahed Ali exhorted the rest of the accused to assault the other persons
whereupon accused Md. Ajmat Ali stuck PW-1 in the left arm with a
fishing prong whereas accused Md. Hasan Ali tried to stab him in the
abdomen with a falla, as a result of which he sustained injury in his left
hand. This witness further deposed that Md. Jabbar Ali stabbed the
deceased Ekabbar Ali in the lower abdomen with a surki (spear) H
788 SUPREME COURT REPORTS [2022] 15 S.C.R.
A whereupon the deceased fell down. PW-1 also deposed that injuries
were caused to PW-2 and PW-4 and that injured Ekkabar Ali was taken
to the house of Barek Bepari where he died. In his cross examination,
PW-1 stated that his house is situated at a distance of half a kilometer
from the place of occurrence and that Md. Sahed Ali had forcibly taken
possession of the land on which the occurrence took place. PW-1 stated
B
that PW-6 is the husband of his niece. PW-1, in his cross examination,
further stated that the police did not interrogate him at the place of
occurrence. He further stated that some 15-20 people were present at
the place of occurrence and that PW-6 was ploughing Md. Sahed Ali’s
land. The quarrel took place when Md. Sahed Ali objected to the said
C act of ploughing his field. PW-1 stated that he did not tell the police
about Mr. Jabbar Ali stabbing him in the arm and that Md. Ajmot Ali did
it. As per his statement in the cross-examination, he did not tell the police
that Md. Tabibor Rahman stabbed him in the right arm. PW-1 stated
that he did not tell the police about Md. Jabbar Ali stabbing Ekkabar Ali
since the police did not ask him. In his cross-examination, PW-1 stated
D
that it was only when Ekkabar Ali’s body was taken from the place of
occurrence that he came to know about Md. Jabbar Ali stabbing Ekkabar
Ali. PW-1 further refused that he had any land near PW-6’s land or Md.
Sahed Ali’s land.
29. PW-2- Md. Baseruddin is another witness who got injured in
E the course of the occurrence who has stated that deceased Ekkabar Ali
was his paternal uncle and that at about 7:00 a.m. while walking on the
road, he heard a hue and cry at the place of occurrence. When PW-2
reached the spot of occurrence, he found all the accused persons present
with lathi, falla, hanna, surki etc. and the accused persons were
F quarrelling with PW-6 over ploughing the land. PW-2 deposed that he
had requested the parties not to quarrel. He deposed that at the time of
incident, Md. Sahed Ali exhorted the other accused to stab PW-2. The
deceased Ekkabar Ali was infront of him and that Md. Moyan Ali caught
hold of Ekkabar Ali while accused Md. Jabbar Ali stabbed Ekkabar Ali
in the lower abdomen with a surki. He deposed that accused Md. Yunush
G Ali hit him on the upper dorsal side of his right hand with a faska whereas
accused Md. Tabibor Rahman had struck him with a falla on the upper
dorsal side of his left hand. By seeing this he fled away from the place
of occurrence. The accused Md. Ajmot Ali and Md. Hasan Ali injured
PW-1 on his hand and arm. That Ekkabar Ali was carried to the house
H of Barek Bepari where he died and that he underwent treatment for his
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 789
[B. V. NAGARATHNA, J.]
injuries. In his cross-examination, the place of occurrence of the incident A
belonged to one Rezzak Ali and that the patta is in his name. He stated
that he had no knowledge whether the name of accused Md. Sahed Ali
was mutated in the patta or not. He rushed to the place of occurrence
after 10-15 minutes wherein 50-60 people gathered there. PW-2 stated
Ekkabar Ali sustained injury in the right side of his lower abdomen and
B
that he sustained only one injury. PW-2 further stated in his cross-
examination that he did not know if the people were aware of this incident.
30. PW-3-Md. Inam Ali is the brother of deceased Ekkabar Ali
who deposed that at about 7:00 a.m. on the day of occurrence, when he
had been ploughing the field, a young boy came and informed him of the
incident. He deposed that he went to the place of occurrence and found C
his elder brother Ekkabar Ali lying dead. According to him, PW-4 informed
him that Md. Moyan Ali had killed Ekkabar Ali and further that PW-4
and PW-1 were injured by Md. Ajmot Ali. Immediately, on his arrival at
the place of occurrence, the accused persons ran away from there. In
his cross-examination, PW-3 stated that the land on which occurrence D
took place is an annual patta land and that he did not know the dag and
patta numbers of the land. He refused that he knew the boundaries of
the land. He stated that he had also seen some Moslem ploughing the
field on which incident took place and that he had been ploughing his
land which some 2-3 bighas away from the place of occurrence. On his
arrival on the place of occurrence, he did not notice who were present E
there and that the accused persons ran away. The accused persons
have separate homesteads. PW-3, in his cross-examination further stated
he told the police that PW-4 told him that Md. Moyan Ali assaulted
Ekkabar Ali. The two parties fought over possession of land and that on
the day of occurrence itself, Md. Sahed Ali filed a case against them F
(Jonab, Raju Mallik and Baser) alleging looting of his house
31. PW-4-Md. Jonab Ali is another brother of the deceased. He
deposed that at about 7:00 a.m. on the day of occurrence, he was
ploughing his land which is at a short distance from the place of
occurrence. Seeing 100-150 people gathered at the place of occurrence, G
he went to the place of occurrence. Md. Ajmot Ali tried to hit him with
a faska, as a result of which, he fell on the ground and on standing up he
saw 4-5 men carrying Ekkabar Ali. He also saw injury on the abdomen
of Ekkabar Ali who, according to him, was assaulted by Md. Hasan Ali.
In his cross-examination, he stated that deceased Ekkabar Ali and
H
790 SUPREME COURT REPORTS [2022] 15 S.C.R.
A PW-6 had a quarrel over possession of the land. He did not see injury on
anyone at the place of occurrence except for on Ekkabar Ali. As per
this witness, PW-2 came to the place of occurrence afterwards. He did
not know the name of the persons who told him that Md. Hasan Ali had
assaulted Ekkabar Ali and that he did not tell that to the police. In his
cross-examination, PW-4 makes a mention of some other quarrel that
B
took place between the two groups at some place 10-15 bighas away
from Md. Sabed Ali’s house. He also made a mention of the case filed
against them alleging dacoity being committed by them in Md. Sabed
Ali’s house. In his cross-examination, PW-4 stated that he cannot say if
the accused persons were present at the place of occurrence. PW-1
C and PW-3 are his brothers and PW-6 is the husband of his niece.
32. PW-5- Md. Hakim Khan, who is the brother-in-law of deceased
Ekkabar Ali, in his deposition stated that at about 8:00 a.m. on the day of
occurrence, he was going home on a bicycle after purchasing some
fertilizer. As per this witness, Md. Sahed Ali, Md. Tabibur Rahman, Md.
D Sabed Ali, Mustt. Chanderbhanu, Mustt. Hazarabhanu and Md. Yunus
Ali came together towards him and said ‘Ekkabar Ali’ is finished. Catch
this one’. According to him, Md. Sahed Ali hit him on his right shoulder
with a lathi, as a result of which, he fell down and became unconscious
and was taken to the hospital by his eldest son Anowar Khan, son-in-
law and his wife. PW-5 stated that Ekkabar Ali sustained injuries in his
E right kidney. In his cross-examination, this witness stated that he was
attacked and injured near the house of one Jittu Ali at Keotpara. The
incidents of assault took place at two places. the distance between the
places where he was attacked and Ekkabar Ali was killed is one furlong.
This witness stated that he did not know what the rest of the accused
F persons had done other than running towards him and attacking him.
The cause of quarrel was unknown to him. In his cross-examination,
this witness stated that he did not tell the police about the accused persons
assaulting Ekkabar Ali.
33. PW-6- Baju Mollik, the first informant, deposed that on the
G morning of the day of occurrence, at about 7:00 a.m. when he was
ploughing his land, the accused, namely, Md. Sahed Ali, Md. Sabed Ali,
Mustt. Hazerabhanu and Mustt. Chandrabhanu came to the land and
asked him not to plough the same. An argument took place over the said
issue. As per this witness, at that time, deceased Ekkabar Ali was going
along the road to his place of work. PW-6 called Ekkabar Ali to his land
H and the latter asked the accused persons not to quarrel with PW-6. PW-
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 791
[B. V. NAGARATHNA, J.]
6 deposed that at that time, Md. Sahed Ali ordered that Ekkabar Ali A
should be assaulted and therefore Md. Sabed Ali, Mustt. Hazerabhanu
and Mustt. Chandrabhanu held Ekkabar Ali tightly while Md. Sahed Ali
stabbed him in the abdomen with a falla. As per his deposition, there
was an attempt to assault him also but he ran away. While running away,
he met PW-4 and informed him of the incident. PW-6 also informed the
B
villagers regarding the said incident and on returning to the place of
occurrence, he found Ekkabar Ali lying in the field in an injured state. In
his cross-examination, he stated that he was ploughing was his own land
however he did not know the dag and patta of his own land. He stated
that he had seen only accused Md. Sahed Ali, Md. Sabed Ali, Mustt.
Hazerabhanu and Mustt. Chandrabhanu and none others at the place of C
occurrence and he informed the same to PW-4 when he was running
away. After 10-15 minutes, he returned to the place of occurrence and
saw only aforesaid 4 accused persons and no other person. He stated
that there was only Ekkabar Ali and him on the place of occurrence. He
also deposed in his cross examination that he did not know if any other
D
man sustained injuries. He stated that Md. Sayed Ali had asked him not
to plough the field. The said land was given to him by his maternal uncle
Md. Rezzak Ali however he has not obtained mutation in that respect.
This witness stated he did not tell the police about accused Md. Sayed
Ali stabbing PW-1 with a falla. According to him, PW-1 held it with his
hand and as a result of that, he sustained injury in the hand. He also E
stated that he did not tell the police that Md. Yunus Ali had injured PW-
2 and that Md. Hasan Ali injured Ekkabar Ali. He did not know of any
incident happening near Md. Sayed Ali’s house. He denied that the land
where the incident took place belonged to Md. Sahed Ali. He even stated
in his cross-examination that he cannot say as to who assaulted whom.
F
This witness also deposed in his cross-examination that the deceased
Ekkabar Ali was his maternal uncle-in-law.
34. PW-7- Dr. D.C. Sarma who was working in Barpeta Civil
Hospital, deposed that on 19.11.1999, he examined PW-1, PW-4 and
PW-5. The report was prepared and signed by PW-7 and was exhibited
by the prosecution as Ext.2,4, and 3 respectively. The injuries as mentioned G
in the injury reports were simple and were found to be caused by a blunt
weapon.
35. PW-8- Dr. P.N. Uzir conducted post-mortem examination on
the dead body of Ekkabar Ali. The post-mortem report Ext.5 indicated
H
792 SUPREME COURT REPORTS [2022] 15 S.C.R.
A that one stab injury was found on the left side of the lower abdomen and
that the rupture of the peritoneum was found along with perforation of
the large intestine. As per the opinion of the doctor, the cause of death
was shock and haemorrhage due to the injury sustained. Only one injury
was found on the body of the deceased. In his report, he stated that the
injury might have been caused by a sharp weapon.
B
36. PW-9-Dr. S.C. Sarma had examined PW-2 at Barpeta Civil
Hospital on 19.11.1999 and in his report, Ext.6, it was mentioned that he
found two small punctured injuries at the dorsal of the right hand. The
injuries were simple and caused by pointed weapon.
C 37. PW-10-Biseswar Singha is the Investigating Officer in the
instant case who deposed that PW-6 lodged a written Ejahar. He stated
that he registered the complaint, interrogated the complainant, visited
the place of occurrence, questioned the witnesses and drew a sketch/
map- Ext.7 of the place of occurrence along with his signature- Ext.7(i).
He deposed that he seized a 10 feet 7 inches bamboo pole fitted with 9
D inches long pointed iron prong, 9 inches long iron falla fitted to a 2 feet
11 inches long bamboo pole and an 11 feet 2.5 inches long bamboo pole
fitted with 14-inch-long pointed iron falla vide seizure list- Ext.9 along
with his signature- Ext.9(i). Ext.10 (1) is the signature of Inspector Tanu
Hazarika. As per this witness, he sent the body of the deceased Ekkabar
E Ali to the Barpeta Civil Hospital for autopsy and on completion of the
investigation, he submitted a chargesheet against the accused. In his
cross-examination, he stated that the incident took place on Muslimuddin’s
land and that he did not verify the land documents of PW-6 i.e., the first
informant and of the accused persons. In the diary, there is no mention
that the accused Sayed Ali’s house was ransacked. The chargesheet
F did not bear his signature. In his cross-examination, PW-10 stated that
he did not see the articles seized by him in the court on the day of his
deposition. He further stated that he did not examine Anowar Khan as a
witness. PW-10 stated that PW-6 and PW-4 told him about the incident.
38. The accused examined two witnesses. DW-1- Phul Khatun in
G his examination-in-chief, deposed that a quarrel took place in the house
of Md. Sahed Ali, over some land, about 4-5 years ago. DW-1 however
stated that she could not say whether at the time of occurrence, Md.
Sahed Ali was present or not. DW-1 stated that she had not seen the
occurrence of the incident. In her cross-examination, DW-1 deposed
H that she was not present at the time of the occurrence.
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 793
[B. V. NAGARATHNA, J.]
39. DW-2- Md. Abu Ahmed, in his witness, deposed that on coming A
to know of the arrival of the police at the place of occurrence, he had
gone there and found the dead body of Ekkabar Ali lying in the courtyard
of the house of Barek Bepari. In his cross-examination, this witness
stated that he was not present at the time when deceased Ekkabar Ali
was killed.
B
40. On reappreciation of evidence of the prosecution witnesses, it
is noted that PW-1 who is one of the injured witnesses has stated that on
the fateful day, it was Md. Sahed Ali who exhorted the other accused to
assault and as a result of the said exhortation Md. Jabbar Ali stabbed
Ekkabar Ali in the in the lower abdomen with surki (spear) whereupon
the deceased fell down. PW-2 has also stated that Md. Moyan Ali caught C
hold of Ekkabar Ali while accused Md. Jabbar Ali stabbed Ekkabar Ali
in the lower abdomen with a surki. That Md. Yunsh Ali hit him on the
upper dorsal side of his right hand with a falla and Md. Tabibur Rahman
had struck him with a falla on the upper dorsal side of his left hand. As
a result, he fled from the place of occurrence. PW-3-Md. Inam Ali is not D
eye witness but on information has deposed that he went to the place of
occurrence of the incident and found Ekkabar Ali lying dead. According
to this witness who is a hearsay witness, PW-4 informed him that Md.
Moyan Ali had killed Ekkabar Ali. PW-4 further stated in his evidence
that he saw the injuries on the abdomen of Ekkabar Ali who, according
to him, was assaulted by Md. Hasan Ali. But he has not stated that he E
had seen Md. Hasan Ali assaulting Ekkabar Ali. Also, PW-5-Md. Hakim
Khan has deposed that Md. Sahed Ali hit him on his right shoulder with
a lathi and as a result he fell down and became unconscious and was
taken to the hospital. He has also not stated as to who assaulted Ekkabar
Ali. Similarly, PW-6-Baju Mollik, the first informant has stated that on F
the exhortation of Md. Sahed Ali, Md. Sabed Ali, Mustt. Hazerabhanu
and Mustt. Chandrabhanu held Ekkabar Ali tightly while Md. Sahed Ali
stabbed him in the abdomen with a falla and as there was an attempt to
assault him also, he ran away. While running away, he met PW-4 and
informed him of the incident. Thus, PW-4 is also not an eye witness of
the incident as they were not present at the time when Ekkabar Ali was G
assaulted.
41. On an analysis of the evidence produced by both the parties,
what emerges is that there are variations in the evidence of PW-6 who
was the first informant in the instant case and the evidence of PW-1,
H
794 SUPREME COURT REPORTS [2022] 15 S.C.R.
A PW-2 and PW-4 regarding as to who gave the fatal blows to deceased
Ekkabar Ali. As per the deposition of PW-6, accused Md. Sahed Ali
stabbed the deceased Ekkabar Ali in the abdomen with a falla while as
per the deposition of PW-1 and PW-2, accused Md. Jabbar Ali stabbed
Ekkabar Ali in the lower abdomen with a surki, whereafter he fell on
the ground and was later taken to house of Barek Bepari where he
B
succumbed to his injuries. But, PW-1 has admitted in his cross
examination that he had not told the police about Md. Jabbar Ali stabbing
Ekkabar Ali and when the latter’s body was being taken from the place
of the occurrence, he came to know that Md. Jabbar Ali had stabbed
Ekkabar Ali. PW-4 deposed that Md. Moyan Ali had killed Ekkabar Ali.
C From the evidence of the witnesses, what emerges is that there is no
consistency in the depositions of the aforesaid witnesses as to who
amongst the accused persons gave a fatal blow to the deceased Ekkabar
Ali. When it is not clear as to who stabbed the deceased Ekkabar Ali,
the finding of the Fast Track Court, that the evidence of PW-6 finds
corroboration with the evidence of PW-1 and PW-2 is erroneous and
D
cannot be sustained. The Fast Track Court as well as the High Court
ought not to have relied on the evidence of these witnesses which are
highly inconsistent with each other in holding the concerned accused
guilty.
42. The evidence of PW-3, who was the brother of the deceased,
E also does not support the case of the prosecution since PW-3 was not an
eye-witness but was merely a hearsay witness who, in his deposition,
categorically stated that while he was ploughing his field, a young boy
came and informed him about the incident. After hearing about the
incident, this witness rushed to the place of occurrence and saw the
F dead body of the deceased Ekkabar Ali. Further, in his deposition,
PW-3 also stated that he was informed by PW-4 that accused Md. Moyan
Ali stabbed the deceased Ekkabar Ali and that PW-1 and PW-4 were
further injured by the accused Md. Ajmot Ali. On examining the deposition
of this witness PW-3, it is clear that the same is not corroborated by the
evidence of any other witness such as PW-1 and PW-2 who stated that
G accused Md. Jabbar Ali stabbed the deceased Ekkabar Ali and PW-6
who stated that accused Md. Sahed Ali stabbed the deceased Ekkabar
Ali. The finding of the Fast Track Court that the evidence of PW-3 lends
support to the correctness of the prosecution case is therefore incorrect.
Thus, the evidence of PW-3 in no way lends succor to the case of the
H prosecution.
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 795
[B. V. NAGARATHNA, J.]
43. Moving on to the evidence of PW-4, who is also alleged to be A
injured in the said incident was also not an eye-witness to the occurrence.
As per his own deposition, he went to the place of occurrence after he
saw many people gathered there. According to this witness, accused
Md. Hasan Ali assaulted the deceased Ekkabar Ali, however, during his
cross-examination, he clearly stated that he did not know as to who told
B
him that accused Md. Hasan Ali stabbed the deceased Ekkabar Ali.
44. Further, PW-5 was also not an eye-witness to the incident of
deceased Ekkabar Ali being killed by the accused persons. According to
this witness, the accused persons Md. Sahed Ali, Md. Sabed Ali, Mustt.
Chandabhanu, Mustt. Hazerabhanu and Md. Yunush Ali came towards
him and told that they had killed the deceased Ekkabar Ali. However, C
this witness has failed to state which one of the accused persons actually
stabbed the deceased Ekkabar Ali. The evidence of PW-5 thus, does
not lend any credence to the case of the prosecution.
45. On scrutinizing the evidence of PW-10 i.e., the Investigating
Officer, it is clear that PW-10 did not verify the land documents/land D
records of PW-6 as well as of the persons accused. The Fast Track
Court has held that on the relevant day i.e., on the day of the incident,
PW-6 was cultivating the land however the accused Md. Sahed Ali also
claimed to be owner of the land. Also, witness PW-10 did not collect the
blood stains from the place of occurrence. E
46. Hence, we find there is no clinching evidence so as to prove
beyond reasonable doubt the case of the prosecution as there are
contradictions in the evidence/depositions of PW-1, PW-2 and PW-5.
Moreover, the evidence of PW-6, the informant is inconsistent with the
depositions of PW-1, PW-2 and PW-5. We find that the inherent F
contradictions in the evidence of the prosecution-witnesses does not
prove the case of the prosecution beyond reasonable doubt. Therefore,
the evidence of the defence witnesses in relation to the alibi of Md.
Sahed Ali need not be considered as such.
47. It is pertinent to mention here that the finding of the High G
Court as well as of the Fast Track Court is erroneous since no document
was brought on record to prove the possession or the ownership of the
said disputed land. The Fast Track Court arrived at a conclusion that the
disputed land where the occurrence took place was in possession of the
complainant’s party on mere conjectures. Hence, we express no opinion
on that aspect of the case. H
796 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 48. It is noted that great weight has been attached to the testimonies
of the witnesses in the instant case. Having regard to the aforesaid fact
that this Court has examined the credibility of the witnesses to rule out
any tainted evidence given in the court of Law. It was contended by
learned counsel for the appellant that the prosecution failed to examine
any independent witnesses in the present case and that the witnesses
B
were related to each other. This Court in a number of cases has had the
opportunity to consider the said aspect of related/interested/partisan
witnesses and the credibility of such witnesses. This Court is conscious
of the well-settled principle that just because the witnesses are related/
interested/partisan witnesses, their testimonies cannot be disregarded,
C however, it is also true that when the witnesses are related/interested,
their testimonies have to be scrutinized with greater care and
circumspection. In the case of Gangadhar Behera and Ors. v. State
of Orissa (2002) 8 SCC 381, this Court held that the testimony of such
related witnesses should be analysed with caution for its credibility.
D 49. In Raju alias Balachandran and Ors. v. State of Tamil
Nadu (2012) 12 SCC 701, this Court observed:
“29. The sum and substance is that the evidence of a related or
interested witness should be meticulously and carefully examined.
In a case where the related and interested witness may have
E some enmity with the assailant, the bar would need to be raised
and the evidence of the witness would have to be examined by
applying a standard of discerning scrutiny. However, this is only a
rule of prudence and not one of law, as held in Dalip Singh [AIR
1953 SC 364] and pithily reiterated in Sarwan Singh [(1976)
4 SCC 369] in the following words: (Sarwan Singh
F case [(1976) 4 SCC 369, p. 376, para 10)
“10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that
G approach is made and the court is satisfied that the evidence
of interested witnesses have a ring of truth such evidence could
be relied upon even without corroboration.”
50. Further delving on the same issue, it is noted that in the case
of Ganapathi and Anr. v. State of Tamil Nadu (2018) 5 SCC 549,
H this Court held that in several cases when only family members are
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 797
[B. V. NAGARATHNA, J.]
present at the time of the incident and the case of the prosecution is A
based only on their evidence, Courts have to be cautious and meticulously
evaluate the evidence in the process of trial.
51. It is thus settled that the evidence of the related witnesses
have to be considered by applying discerning scrutiny. In the instant
case, it is seen from the testimonies of the prosecution witnesses that all B
the witnesses are related to the deceased Ekkabar Ali and therefore all
the witnesses being related to each other. In order to elucidate on the
said aspect, it is pertinent to note the relationship of the witnesses and to
the deceased Ekkabar Ali. PW-1 in his deposition stated that the deceased
Ekkabar Ali was his cousin (paternal uncle’s son) and PW-6 is the husband
of his niece. PW-2 stated that the deceased Ekkabar Ali was his paternal C
uncle. PW-3 and PW-4 deposed that they were brothers of the deceased.
PW-5 was the brother-in-law of the deceased and PW-6 stated that the
deceased was his maternal uncle in law. It is necessary to state here
that the evidence of the related witnesses can be rejected if there are
material contradictions and inconsistencies found in their testimonies. It D
is observed that there have been material improvements in the testimony
of PW-1. PW1- in his examination deposed that accused Md. Jabbar Ali
stabbed Ekkabar Ali however in his cross-examination, PW-1 stated
that he had not told the police that Md. Jabbar Ali stabbed Ekkabar Ali.
The same is an improvement in the testimony which has to be borne in
mind. E
52. Further as already stated above, all the witnesses have given
contradictory versions as to who gave the fatal blow to deceased Ekkabar
Ali and the same amounts to material contradictions. It is reiterated that
the testimony of PW-6 is inconsistent with the testimonies of PW-1,
PW-2 and PW-5 This Court in the case of State of Rajasthan v. Kalki F
& Anr. (1981) 2 SCC 752, distinguished between the normal
discrepancies and material discrepancies. This Court held that the Courts
have to label as to which category a discrepancy can be categorized.
The material discrepancies corrode the credibility of the prosecution’s
case while insignificant discrepancies do not do so. G
53. Keeping in view the aforesaid principle, this Court would hold
that in the present case, there are material discrepancies in the testimonies
of the witnesses and the same is fatal to the case of the prosecution.
The prosecution has thus failed to prove the guilt of the accused-appellants
beyond reasonable doubt. H
798 SUPREME COURT REPORTS [2022] 15 S.C.R.
A 54. In the present case, owing to the substantial and material
contradictions in the testimonies of the prosecution witnesses, the
evidence of the prosecution is considered wholly unreliable. Additionally,
the prosecution has examined only related witnesses and not a single
independent witness. Therefore, in the facts and circumstances of the
case, the evidence does not prove the alleged offences against the
B
accused-appellants.
55. Another aspect that this Court would like to look into is as to
what extent this Court can reappreciate and reappraise the evidence on
record. In a catena of cases, it has been held that though in cases of
concurrent findings of fact, this Court will ordinarily not interfere with
C the said findings, this Court is empowered to do so if in case it finds inter
alia, misreading of the evidence or where the conclusions of the High
Court are manifestly perverse.
56. Reliance in this regard is placed on the recent judgment of this
Court in Ashoksinh Jayendrasinh v. State of Gujarat (2019) 6 SCC
D 535, wherein it has categorically held that when the High Court has
failed to appreciate the oral evidence, it would definitely be entitled to
appreciate the evidence in its correct perspective. In the present case at
hand as well, the finding of conviction was recorded overlooking the
material contradictions in the evidence of the prosecution witnesses and
E therefore the said conviction deserves to be set-aside. The relevant portion
from the aforesaid judgment is quoted as:
“We are conscious that the Supreme Court would be slow to
interfere with the concurrent findings of the courts below. In an
appeal under Article 136 of the Constitution of India, concurrent
F findings of fact cannot be interfered with unless shown to be
perverse (vide Mahesh Dattatray Thirthkar v. State of
Maharashtra (2009) 11 SCC 141: (2009) 4 SCC (Civ) 468]).
Where the appreciation of evidence is erroneous, the Supreme
Court would certainly appreciate the evidence. In our considered
view, the High Court ought to have weighed and considered the
G materials. When the findings of the trial court and the High Court
are shown to be perverse and there is no proper appreciation of
evidence qua the appellant, the Supreme Court would certainly
interfere with the findings of fact recorded by the High Court and
the trial court.”
H
MD. JABBAR ALI & ORS. v. THE STATE OF ASSAM 799
[B. V. NAGARATHNA, J.]
57. It is further noted that the injuries caused to PW-1, PW-2, A
PW-4 and PW-5 are simple in nature as per the medical reports submitted
by PW-7 and PW-9. The witnesses PW-7 and PW-9 have categorically
stated in their reports that the injuries were caused by a blunt weapon
and therefore the High Court and the Fast Track Court has grossly erred
in convicting and sentencing the accused Nos. 1, 2, 3, 5, 6, 7 and 8 for
B
simple imprisonment for one year.
58. In our view, the High Court as well as the Trial Court have
failed to take into consideration, the vital discrepancies and inconsistencies
in the evidence of the prosecution witnesses and therefore the High
Court was not justified in reaffirming the judgment and order of conviction
passed by the Fast Track Court. C
59. Having re-appreciated the evidence of the witnesses, we find
that the High Court was not justified in affirming the judgment of conviction
and sentence passed by the Fast Track Court, of the first three appellants
herein, namely, Md. Jabbar Ali (accused no.4), Md. Moyan Ali (accused
no.10) and Md. Sahed Ali (accused no.11) to undergo life imprisonment D
and of the other appellants namely Md. Omar Ali (accused no.3), Md.
Hasan Ali (accused no.2), Mustt. Hazerabhanu (accused no.6), Mustt.
Chandrabhanu (accused no.7), Md. Tabibor Rahman (accused no.5)
and Md. Ajmot Ali (accused no.8- appellant in the connected matter) to
undergo simple imprisonment for one year. E
60. In view of the aforesaid discussion, we find that the Session
Court as well as the High Court were not right in convicting and sentencing
the appellants herein and therefore, the impugned judgments are liable
to be set aside.
61. In the result, the appeals filed by the appellants-accused are F
allowed and the impugned judgments passed by the High Court affirming
the conviction and sentence by the Fast Track Court are hereby quashed
and set aside. The appellants are acquitted of all the charges levelled
against them in the instant case.
62. Pending application(s), if any, shall stand disposed of in the G
above terms.
Devika Gujral Appeals allowed.
(Assisted by : Preetam Bharti, LCRA)
H
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