Holding

The conviction cannot be sustained as the prosecution failed to prove the identity of the accused beyond reasonable doubt, and the acquittal is affirmed.

Summary

The State of Uttar Pradesh appealed against the Allahabad High Court's acquittal of Abdul Karim and two others, who had been convicted by a trial court for murder under Section 302 read with Section 34 of the IPC. The prosecution's case rested on the testimony of three eye‑witnesses – the victim's wife (PW‑1), her brother (PW‑2) and her son (PW‑3) – who claimed to have seen the accused assaulting the victim with an iron rod, spade and a 'kassi'. The High Court found the witnesses' statements unreliable because they were made from a distance of about one mile, the view was obstructed by 6‑7 ft tall sugarcane crops, and the witnesses either did not see the actual assault or admitted they arrived after it was over. Moreover, the injuries recorded in the post‑mortem report were lacerations and contusions, not incised wounds that would be expected from sharp cutting weapons. The Supreme Court upheld the High Court's reasoning, holding that the prosecution failed to prove the identity of the accused beyond reasonable doubt, and dismissed the appeal.

Issues considered

Whether the testimony of PW‑1, PW‑2 and PW‑3 is sufficient to positively identify the accused as the perpetrators of the murder.
Whether the presence of standing sugarcane crops and the distance of the witnesses render identification impossible.
Whether the nature of the injuries is consistent with the alleged use of sharp cutting weapons.
Whether the conviction under Section 302 read with Section 34 IPC can be sustained on the evidence presented.

Legislation cited

Code of Criminal Procedure, 1973s. 161
Indian Penal Code, 1860s. 302, s. 34

Subjects

murdersection 302 IPCsection 34 IPCeyewitness identificationreasonable doubtacquittalevidence reliabilitypost‑mortem injuriesagricultural field obstruction

Judgment

A STA TE OF U.P.
v.
ABDUL KARIM AND ORS.

JULY 26, 2007

B [DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.]

Penal Code, 1860:

s.302 rlw s.34-Death pursuant to assault with iron rod and sharp
C cutting weapons-Conviction of accused-Respondents by Trial Court-Set
aside by High Court in appeal-Appeal against the acquittal-Held: One
eye-witness partially resiled from her statement made during investigation-
Another stated that he saw the accused persons committing assaults, but in
cross examination admitted that he reached when the assault was over-All
D the witnesses were far away from the field where the alleged incident took
place-Field was also obstructed by standing crops of sugarcane not less
than· 6-7 ft in height-Therefore they could not have seen the assaults-
Additionally, though all witnesses stated that accused persons were carrying
sharp cutting weapons and rods, not even one injury was incised-Jn view
of the total discrepant nature of evidence, High Court rightly discarded the
E prosecution version and set aside the conviction.
According to the prosecution, the Respondents assaulted the husband
of PWI with iron rod, spade and 'kassi' and thereby caused his death. The
incident occurred at the agricultural field of the deceased. One day prior to
F the incident, deceased had an altercation with one of the Respondents. Trial
Court convicted the Respondents under s. 302 r/w s. 34 IPC placing reliance
upon the evidence of PWs I, 2 and 3, all of whom are stated to be eye-witnesses.
PW2 and PW3 are respectively the brother and son of PWI. High Court,
however, acquitted the Respondents holding that the prosecution had failed to
establish its acquisitions vis-a-vis them. Hence the present appeal.
G
Dismissing the appeal, the Coqrt

HELD: 1.1. PW-I partially resiled from her statement made during
investigation. According to her, she saw the assailants from a distance of one
mile. Sugarcanes were standing in the field which intervened between the
H 540
STATE OF U.P. v. ABDUL KARIM 541
place where she was and the field where the incident occurred. She accepted A
that she had not herself seen the assault but saw the accused persons while
they were making their escape towards the jungle. She claimed to have seen
them running from a distance of one mile. She further admitted that in between
the village and her field number of fields were situated where sugarcane and
wheat crops were standing. (Para 9( (545-H; 546-A-BI
B
1.2. PW-2 stated that he had also seen the accused persons committing
the assaults. But in the cross-examination he admitted that he had come to
the place when the assault was over and he had seen the accused persons
running towards the jungle in the sugarcane field. He accepted that he was
with PW I. (Para 10) (546-C) C
J.3. PW-3 was a child of 9 years at the time of incident He also admitted
to have seen the accused persons running away with their backs towards him
standing near his mother. (Para Jl) (546-D)

2. The evidence of PWs J, 2 and 3 clearly indicated that they were far D
away from the field where the alleged incident took place. The High Court
noted that identification was practically impossible from such a large distance
particularly when the field was obstructed by standing crops of sugarcane
which were not less than 6-7 ft in height. The High Court therefore rightly
observed that they could not have seen the assaults not only because of the
distance but because of the presence of hei'. ht~ of crops of sugarcane. E
Additionally, though all the witnesses stated that the accused persons were
carrying sharp cutting weapons and rods, not even one injury was an incised
one. All the injuries were either lacerated wounds or contusion.
[Para 12) (546-D-E)

3. In view of the total discrepant nature of the evidence, the High Court F
has rightly discarded the prosecution version and set aside the conviction.
(Para 13) (546-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 364 of
2002.
G
From the Judgment & Order dated 15.05.2000 of the High Court of
Judicautre at Allahabad in Criminal Appeal No. 1019 of 1980.

M.C. Dhingra, Vijay Pratap Singh, Anuvarat Sharma and Praveen Swarup
for the Appellant.
H
542 SUPREME COURT REPORTS (2007] 8 S.C.R.

A Asijit Kumar Roy and Premanand M.S. (for Surya Kant) for the
Ref.pondents.

The Judgment of the Court was deliverei:l by

DR. ARIJIT PASAYAT,;.:J; l. The State ofU.P. has filed this appeal
B against the judgment passed by a Division Bench of the Allahabad High
Court directing acquittal of the three respondents (hereinafter referred to as
the 'A-I, A-2 and A-3') respectively.

2. The accused persons were convicted for the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in
C short the 'IPC') by the IVth Additional and Sessions Judge, Bareilly in
Sessions Trial No. 359/78.

3. Background facts in a nutshell are as follows:

The first information report (Ex. Ka. I) was to the effect that Buddhi was
D the husband of the complainant (PW-I) whereas A-I, Abdul Karim was his
elder brother. He was indebted to some Punjabi, and hence had mortgaged
his house and I Yi bigha agricultural land with him and abandoning the village
20 years back had gone to Baheri and settled there with his wife and children.
The husband of the complainant redeemed that property after paying debt of
E the Punjabi and exercised possession over the house and agricultural land of
that accused. Three months before the occurrence accused Abdul Karim
approached her husband and requested him to return his house or to build
a shop for him. Hence her husband had given him a shop in a portion of his
house. Subsequently, he has summoned his son, Salim to the village and both
of them started grocery shop therein. Subsequently some dishonesty cropped
F in his mind and he started pressing for return of his house and 1Yi bigha
agricultural land but her husband refused to do so. The agricultural plot of
the accused exists by the side of the plot of the deceased, hence he used to
cultivate the same together. He had been ploughing these fields for the last
three years and one day before the occurrence accused Abdul Karim asked
G her husband not to plough his field but her husband refused to do so. This
enraged the accused and they threatened to teach him a lesson next day if
he attempted to plough the field. Her husband did not care for it and challenged
them to stop him if they had any courage to do so. On the date of occurrence \-
in the early morning her husband had gone to plough the field with bullocks
and plough and at about 7 A.M. the complainant and her son Mukhtar were
H going to provide him food there and when they reached near the field, they
STATEOFU.P.v. ABDULKARIM[PASAYAT,J.] 543
saw the accused Salim (A3) anned with an iron rod, Abdul Hamid (A-2) armed A
with a spade and Abdul Karim (A-1) anned with a 'Kassi' proceeding towards
their field hurling abuses at her husband and they started belabouring him
with arms and their hands and injured him~ He fell down on the ground. They
kept on beating him there. Hearing shrieks of the complainant and her husband,
her brother Chhotey who had come there for call of nature appeared there and
several other co-villagers also arrived there and on their challenge the accused B
left the place running towards forest considering that her husband was dead.
·" Later on she arranged for a charpai from the village and after keeping the
injured thereon proceeded towards the police station in company of Rafiq,
Rashid Alauddin, Munshi, Abdul Samad and reaching near village Etaua. On
the way her husband breathed his last and then she had gone to the police C
station and lodged report at about l l.00 A.M. on the same day.

Head Moharrir Jagdish Singh prepared check report and G.D. report (Ex.
Ka.3) on the basis of oral information of the complainant in presence of S.l.
D.D. Agarwal (PW.5) who took up the investigation immediately. He
interrogated the complainant and then prepared inquest report, challan and D
photo of the Corpse (Ex. Ka. 4 to Ka. 6) and sealed the corpse and entrusted
the same to constables for onward transmission to the hospital for postmortem
examination alongwith necessary papers. He also prepared recovery memo
(Ex. Ka. 7) for the blood stained Chadar covering the corpse. Later on he went
to the place of occurrence and prepared site plan (Ex. Ka. 8) after inspecting
the spot. He took sample and blood stained earth and sealed the same in .E
separate containers (Ex. l and 2) after preparing recovery memo (Ex. Ka. 9).
Later on other witnesses were also interrogated and after concluding the
investigation he submitted the charge-sheet against the accused. The accused
kept on absconding and surrendered to the court later on. He proved statement
of Smt. Mango recorded under section 161 of the Code of Criminal Procedure, F
1973 (in short the 'Code') vide Ex. Ka. 12 during trial.

Dr. l.S. Tomar (PW.4) carried on postmortem examination of the corpse.
of the deceased on 13-4-1978 at about 3.15 P.M. and he found that the
deceased was aged about 40 years and his death occurred within 1114 days.
He was average built and rigor mortis was present in the lower limbs whereas. G
it passed of the upper limbs. He found following ante-mortem injuries on his.
person:
7
l. Lacerated wound 2.5 cm x .5 cm x scalp deep over left side head
9 cm above left ear, placed obliquely. ·
H
544 SUPREME COURT REPORTS [2007) 8 S.C.R.

A 2. Lacerated wound 2 cm x 5 cm. X scalp deep over right side head
7 cm above right ear, placed obliquely.

3. Lacerated wound 3 cm x 1 cm. X scalp deep over top of head in
middle, placed obliquely.

B 4. Multiple clotted contusions in an area of 24 cm x 4 cm over outer
aspect of right arm from upper to lower end.

5. Abraded contusion 3 cm x 2 cm over back of right elbow. )<,

6. Contusion 4 cm x 3 cm over dorsum of right hand.

C 7. Mult_iple abraded contusion in area of 6 cm x 1.7 cin over of left
shoulder.

8. Multiple abraded contusions in an area of 25 cm x 8 cm over back
and anterior aspect of left arm, from shoulder to elbow.
,
9. Two lacerated wounds-one 3 cm x 5 cm x 6 cm deep and other 2
D
cm x 5 cm x bone deep over back of left forearm in upper third.

I 0. Abraded contusion I 0 cm x 4 cm area over back of left forearm.

11. Contusion 6 cm x 4 cm over dorsum of left hand and left ring finger
is fractured. ·
E
12. Multiple contu~ions in an area of 36 cm x 11 cm over outer aspect
of left thigh and left buttock placed parallel to each other and two
parallel lines in every contusion.

13. Multiple lacerated wounds in an area of21 cm x 5 cm x bone deep
F over front of left leg.

14. Lacerated wound I cm x l cm x 6 cm deep outer aspect of left knee.

15. Multiple contusions in an crea of 6 cm x 2 cm over back of leg in
upper third.
G 16. Lacerated wound 4 cm x 1.5 cm x bone deep over front of right led
in middle and both bones are fractured.

17. Contusion 4 cm x 3 cm over outer aspect of right knee.

18. Confusion 2 cm x 1 cm right side chest 9 cm from nipple at 5 'o'
H
STATEOFU.P. v. ABDULKARIM[PASAYAT,J.) 545
clock position . A
.19. Multiple contusions in an area of 43 cm x 26 cm over whole of back
from shoulder to waist placed parallel and obliquely. Two parallel lines
seen in every contusion.

4~ On internal examination, he found parietal bone and axillary bone B
fractured and brain and membrane congested. Blood present around the
membrane. Heart was full on right side with blood whereas it was empty on
left side. Stomach and small intestines were empty whereas large intestine was
half full. Death was due to shock and haemorrhage resulted through antemortem
injuries. He proved postmortem examination report Ex. Ka. I and he had sent
the same alongwith blood stained shirts and underwear of the deceased in C
a sealed packet to the Investigating Officer. In his opinion the injuries and
death of the deceased was possible at 12-4-1978 at about 7-8 A.M. through
iron rod, spade and Kassi.

5. After the investigation was completed charge sheet was filed. But the
accused persons pleaded innocence and claimed to be tried. Five witnesses D
were examined to further the prosecution version. Smt. Mango (PW-1) widow
of the deceased, Chhotey (PW-2) brother of wife of the deceased and Mukhtar
Ahmad (PW-3) son of the deceased were stated to be eye witnesses. The trial
Court found the evidence of PWs 1, 2 and 3 to be credible and cogent and
convicted the respondents- as afore-stated;·~ E
6. In appeal, .the High Court analysed the evidence to hold that the
prosecution has faiieCI to establish its accusations. Accordingly, the judgment
of acquittal was passed.

7. In support of the appeal, learned counsel for the appellant-State F
submitted that the evidence of PWs I, 2 and 3 leaves no manner of doubt
that the respondents were the assailants and the trial Court had rightly
convicted them.

8. Learned counsel for the respondents on the other hand supported the
judgment of acquittal. G
9. As rightly noted by the High Court the fate of the case depends on
the acceptability of the evidence of PWs 1, 2 and 3. PW-1 partially resiled
from her statement made during investigation. According to her, she saw the
assailants from a distance of one mile. Sugarcanes were standing in the field H
)___ --
,-

546 SUPREME COURT REPORTS [2007) 8 S.C.R.

A which intervened between the place where she was and the field where the
incident occurred. She accepted that she had not herself seen the assault but ~ "'
saw thd"accused persons while they were making their escape towards the
jungle. As noted above, she claimed to have seen them running from a
distance of one mile. She further admitted that in between the village and her
field the number of fields were situated where sugarcane and wheat crops
B were standing.

IO. PW-2 stated that he had also seen the accused persons committing
the assaults. But in the cross examination he admitted that he had come to
,X
the place when the assault was over and he had seen the accused persons
1
c running towards the jungle in the sugarcane field. He accepted that he was
with PW I.
{

11. PW-3 was a child of9 years at the time of incident. He also admitted
to have seen the accused persons running away with their backs towards him
standing near his mother.
D
12. The evidence of PWs I, 2 and 3 clearly indicated that they were far
4
away from the field where the alleged incident took place. The High Court
noted that identification was practically impossible from such a large distance
"""
particularly when the field was obstructed by standing crops of sugarcane
which were not less than 6-7 ft in height. The High Court therefore rightly
E observed that they could not have seen the assaults not only because of the
distance but because of the presence of heights of crops of sugarcane.
Additionally, though all the witnesses stated that the accused persons were
carrying sharp cutting weapons and rods, not even one injury was an incised
one. AH the injuries were either lacerated wounds or contusion.

F 13. In view of the total discrepant nature of the evidence the High Court
has rightly discarded the prosecution version and set aside the conviction. }.--

We find no reason to interfere with the conclu!rions of the High Court. The
appeal fails and is dismissed accordingly.

B.B.B. Appeal dismissed.
G