SHAMSUDDIN AND ORS.versusSTATE OF M.P.

                                                                            •



                     SHAMSUDDIN AND ORS.                              A
                                  V.

                          STATE OF M.P.

                       DECEMBER 18, 2003

        [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] ·                   B
     Penal Code, 1860-Sections 302, 307 read with Section 34-Com-
munal disharmony leading to death ofone and injuries to other by accused
persons-Acquittal by Trial Court-Conviction by High Court-Correct-
nes~ of -Held : Evidence of the injured as also the FIR does not suffer C
from any infirmity-Hence, order of High Court calls for no interference.

     On account of communal disharmony appellant-accused inflicted
injuries to Rand PW-1, as a result of which 'R' lost his life and PW-
1 was injured severely. PW-2 and PW-8 witnessed the incident. PW- D
2 informed brother of PW-1, who thereafter lodged an FIR. Appel.ant-
accused were charged under Section 302 and 307 read with Section 34
IPC. Trial Court acquitted the appellant-accused as the prosecution
case was not supported by the evidence. High Court set aside the
acquittal but held that the appellants were guilty for offence punishable
under Section 324 and not Section 302 IPC. Hence .the present appeal. E

     Appellant-accused contended that the trial Court had analysed
the evidence and found infirmities which the High Court failed to
notice and on surmises held the accused persons guilty; that the
evidence of PW-1 does not inspire confidence, he does not speak about F
presence of PW-8 and his name was not also mentioned in the FIR;
and that the FIR was ante-timed and was fabricated.

     Respondent-State contended that the FIR was not lodged by a
person who was an eyewitness, that though PW-I was extensively
questioned regarding assault on him, there was not even any suggestion G
regarding the assaults on the deceased; that the High Court carefully
analysed the evidence of PW-1 and found to be credible; and that the
High Court has analysed as to how the pleas that the FIR was not
lodged at the time claimed or it was fab.ricated is not established by
evidence on record.                                                    H
                                 1059
       1060               SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
-. A          Dismissing the appeal, the Court

            HELD: The evidence of PW-1 does not suffer from any infirmity.
       The core of the evidence has to be seen and not any borderline's aspect.
       Minor variations which do not have any effect on the credibility of the
  B    evidence cannot be the basis to discard intrinsic value of the evidence.
       Absence of PW-S's name in the FIR is really of no consequence as the
       FIR was lodged by the brother of PW-1 who was not an eyewitness.
       High Court's finding that the FIR was not fabricated does not suffer
       from any infirmity to take any contrary view. Furthermore, there was
       no cross-examination of PW-1 so far as the assaults on the deceased
  C    are concerned. High Court seems to have proceeded on the premise
       that the fatal injury was not clearly established to have been inflicted
       by any particular accused, thus the case is not covered under Section
       302 IPC with application of Section 34. This does not appear to be a
       correct or rational and reasonable approach. In any event, the State
  D    has not preferred any appeal, and, therefore, no view is expressed.
       However, there is no infirmity in the judgment of High Court which
       warrants any interference. [1062-G-H; 1063-A-CJ

           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
  E    827 of 1997.

           From the Judgment and Order dated 7.1.97 of the Madhya Pradesh
       High Court in Cr!. A. No. 299 of 1992.

              Anis Ahmed Khan, for the Appellants.
  F
              Siddharth Dave and Ms. Vibha Datta Makhija for the Respondent.

              The Judgment of the Court was delivered by

          ARIJIT PASAYAT, J.: Communal disturbances have taken toll of
  G many lives at different times. This is a sad reflection on our' society, though
    the Constitutibn of India, 1950 (in short 'the Constitution') underlines in
    no unce11ain terms that ours· is a secular country, where caste, creed and
    religion cannot and do not have any differentiating base. One Rajunath
    (hereinafter referred to as 'the deceased') lost his life on account of
  H communal disharmony and another Narish Chandra (PW~ I) was seriously
          SHAMSUDDIN v. STATE OF M.P. [PASAYAT, J.]                  1061

injured. Accused persons were stated to be the authors of the crime, who A
committed offences punishable under Section 302 and 307 read with
Section 34 of the Indian Penal Code, 1860 (for short 'the IPC').

     Prosecution version as unfolded during trial is as follows:

                                                                            B
     On 21.10.90 at about 2.30 p.m. there was rising of tension on account
of communal feelings in Sandhwa which is a highly sensitive town.
Around mid-day, some dispute arose between two communities and in that
dispute one person belonging to a particularly community was murdered
and this news spread far and wide. Several incidents followed in quick
succession. Some parts of the market were closed, some were in the process  c
of being close down when police force started taking action. PW-I runs
a barber shop. He was to leave for Shastri Colony which was situated at
a short distance from his shop. The deceased also lived in the same locality.
At about 2.30 p.m. the deceased and PW- I were returning home after
closing their shops. When they were near the Oak Bungalow, the accused D
persons surrounded them and started inflicting injuries indiscriminately.
The injured and the deceased tried to save their lives and started running
away. The occurrence was witnessed by Mitthu Sharma (PW-2) and
Premchand (PW-8). One Satyanarayan also witnessed the occurrence. PW-
8 informed PW-1 's brother Santosh (PW-4), who went to the police station E
and his statement was recorded at about 2.45 p.m. At about 2.00 p.m.,
Section 144 of the Criminal Procedure Code, 1973 (for short 'fhe Cr.P.C.')
was promulgated and after sh01t time curfew was also imposed by the
administration to bring the tense situation under control. The investigating
officer PW-18 reached the spot of occurrence and sent the deceased and
the accused to the hospital. On the basis of information lodged investi- F
gation was undertaken and charge sheet was filed. Accused persons
pleaded innocence. It is to be noted that post-mortem was conducted by
PW-15 on the deceased and PW-16 examined injured PW-I. The trial
Court found that the prosecution version was not supported by cogent
evidence and accordingly directed acquittal.                                  G
      The State of Madhya Pradesh preferred appeal before the High Court
which by the impugned judgment set aside the acquittal; but held that the
case is not covered by Section 302 IPC but is covered by Section 324 and
sentenced the accused to undergo RI for 2 years and to pay a fine of H
    1062               SUPREME COURT REPORTS [2003]SUPP. 6 S.C.R.
A Rs. 2,000. It was further directed that in case of recovery of the a!l'lount
    the same was to be paid to the widow ·of the decease.d if he happened to
    be married, and if not, to be paid to his parents or any one of them who
    happened to be alive. Out of the fine recovered a sum of Rs. 2,000 was
    also directed to be given to PW- I. It is noted that the High Court held that
B   the accused persons were guilty of offence punishable under Section 324
    IPC as· aforesaid for causing injuries to the deceased as well as PW-I.

         Learned counsel for the appellant submitted that the trial Court had
    analysed the evidence in great detail and found infirmities which the High
    Court failed to notice and on surmises held the accused persons guilty.
c
          It was further submitted that the evidence of PW-1 do~s not inspire
    confidence. He does not speak about presence of PW-8 and his name was
    not also mentioned in the first information report. It has been clearly
    established that the first information report was ante-timed and was
D   fabricated. There is also no evidence to show that the same was sent to
    the Court.

         In response, learned counsel for the State submitted tha~ the first
   information report was not lodged by a person who was an eyewitness.
E Though PW-I was extensively questioned so far as assault on him was
   concerned, there was not even any suggestion regarding the assaults on the
   deceased. The High Court has analysed as to how the pleas that the first
 · information report was not lodged at the time claimed or it was fabricated
   is not established by evidence on record. If the evidence of a single person
   who is claimed to have been injured is credible and trustworthy there is
F no requirement in law to insist on plurality of witnesses. In case at hand
   the evidence of PW- I has been carefully analysed by the High Court and
   has been found to be credible.

           It could not be pointed out to us as to how the evidence of PW-1
G suffers from any infirmity. The core of the evidence has to be seen and
    not any borderline's aspect. Minor variations which do not have any effect
    on the credibility of the evidence cannot be the basis to discard intrinsic
    value of tl:ie evidence. Absence of PW-8's name in the first information
    report is really of no consequence as, the first information report was
H   lodged by PW-4 who was not an eyewitness. The High Court's finding that
          SHAMSUDDIN v. STATE OF M.P. [PASAYAT, J.]                1063

the first information report was not fabricated does not suffer from any A
infirmity to take any contrary view. It is to be noted that there was
practically no cross-examination of PW-1 so far as the assaults on the
deceased are concerned. The High Court seems to have proceeded on the
premises that because injury no. 6 which was stated to be fatal injury was
not clearly established, to have been inflicted by any particular accused, B
the case is not covered under Section 302 IPC with application of Section
34. This in our opinion does not appear to be a correct or rational and
reasonable approach. In any event, the State has not preferred any appeal
and, therefore, we do not think it necessary to express any view on that
issue. However, there is no infirmity in the judgment of the High Court
which warrants any interference. The appeal is dismissed. The accused C
persons shall surrender to custody to serve the remainder of their sentence,
if any ..

N.J.                                                  Appeal dismissed.