1

AFR

Reserved on 23.10.2019

Delivered on 10.12.2019

Criminal Appeal No. 918 of 1989

1. Salauddin

2. Riazuddin

---- Accused-Appellants

Vs

State Of U.P. ------------ Respondent

For Appellant : Shri Imran Ullah, Amicus Curiae

For Respondent/State: Shri J.K. Upadhyay, A.G.A.

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Raj Beer Singh, J

1.This criminal appeal has been preferred against the judgment and order

dated 13.03.1989 passed by VII Additional District & Sessions Judge, Meerut in

S.T. No. 679 of 1987 (State vs. Salauddin & Two Others), under Sections 302/34,

323/34 of Indian Penal Code (hereinafter referred to as 'I.P.C.'), Police Station

Sardhana, District Meerut, whereby accused-appellants, namely, Salauddin and

Riazuddin have been convicted under Section 302/34 of IPC and sentenced to

undergo imprisonment for life, whereas they have been acquitted of the charge

under Section 323/34 of IPC. However, co-accused Umarddin has been acquitted

of the charge under Sections 302/34 and 323/34 of IPC.

2.According to prosecution version, on 14.09.1986 PW-1 Hasin Khan and his

brother Shakil were returning back to their village after seeing a wrestling

competition (Dangal) and when they reached near house of accused-appellant

Salauddin in their village, accused-appellants Salauddin and Riazuddin confronted

Hasin by uttering as to why he has abused his brother yesterday. PW-1 Hasin Khan

denied any abusing but it ensued into a scuffle wherein accused-appellant

Riazuddin has slapped PW-1 Hasin Khan. After coming to their home, PW-1 Hasin

Khan and his brother Shakil narrated the incident to their father Abdul Rehman

2

Khan (deceased). In order to subsidy the matter, at about 06.00 PM Abdul,

Rehman Khan along with Shakil and PW-1 Hasin Khan went to the house of

accused-appellant Salauddin. There accused-appellants Salauddin and Riazuddin,

armed with country made pistols, were standing in front of their house. Co-

accused Umarddin was also standing near them. As they saw Abdul Rehman Khan

and his sons, accused-appellant Salauddin exhorted to kill them by firing and

consequently, accused-appellants Salauddin and Riazuddin fired one shot each at

Abdul Rehman Khan. Hearing noise of firing, Aizaz, Iqbal alias Ballo, Munna,

Sarfaraz and many other persons of the village also reached there. Co-accused

Umarddin pelted a brick, which caused injury to Aizaz Khan.

3.PW-3 Jamil Ahmad reported the matter to police by submitting written

complaint Ex. Ka-1 and on that basis the FIR was registered on 14.09.1986 at

19:45, under Sections 307/336 of IPC against accused-appellants Salauddin,

Riazuddin and acquitted co-accused Umarddin vide Ex. Ka-18.

4.Police reached at the spot and deceased Abdul Rehman Khan, who was

found in an injured condition at that time, was sent to hospital and was later on

shifted to Safdarjang Hospital, Delhi.

5.Deceased Abdul Rehman Khan, who was in an injured condition at that

time, was medically examined by PW-8 Dr. V.K. Sharma on 14.09.1986 at 10:15

PM and following injuries were found on his person:-

(i) Firearm wound of entry .5 cm x .5 cm depth not probed

in the interest of patient. Margins are inverted. No

blackening or tattooing present, on the left side of face 3.5

cm in front of trague of left ear. Advised x-ray.

(ii) Abrasion 2 cm x .5 cm on left side of face on the medial

side of injury no. 1.

(iii) Contused swelling of the left eye. Bluish in colour.

Conjunctive is congested. Injury kept under observation. Eye

Surgeon informed.

(iv) Lacerated wound 1 cm x .2 cm x skin deep on the left

side of forehead 5 cm above from left eye brow. Bleeding

present.

6. On 17.09.1986, Abdul Rehman Khan succumbed to injuries sustained in the

alleged incident. Inquest proceedings were conducted by PW-4 S.I. Ram Narain of

police station Vijay Nagar, New Delhi on 17.09.1986 and dead body of the

deceased was sent to police station Sardhana, district Meerut.

3

7.Post-mortem on dead body of deceased Abdul Rehman Khan was

conducted by PW-5 Dr. P.N. Khanna at Meerut Medical College vide post-mortem

report Ex.Ka-9 and following injuries were found on the person of deceased:-

(i) Gun shot wound of entry ½ x ½ cm x brain cavity deep

on the left temporal region 4 cm front of the left ear.

Scorching and tattooing present around the wound. Oval in

shape direction from below upwards and front.

(ii) Abrasion 2 cm x 1 cm behind the left ear on its upper

part.

As per Autopsy Surgeon, the cause of death of the deceased was due to

coma as a result of noted gunshot injury of the head.

8. Investigation was taken up by PW-7 S.I. Satpal Singh of police station

Sardhana, district Meerut and after completion of investigation, both the accused-

appellants Salauddin and Riazuddin as well as co-accused Umarddin were charge

sheeted for the offence under Sections 302, 307, 336 of IPC.

9. The trial court framed charge under Sections 302/34 and 323/34 of IPC

against all the three accused persons. However, they pleaded not guilty and

claimed trial.

10. In order to bring home the guilt of accused persons, prosecution has

examined ten witnesses. Accused persons were examined under Section 313

Cr.P.C., wherein they denied prosecution evidence and claimed false implication.

In defence, accused persons have examined one Anees Ahmad, Advocate, Notary

Meerut as DW-1.

11. After hearing and analysing the evidence on record, accused-appellants

Salauddin and Riazuddin have been convicted under Sections 302/34 of IPC vide

impugned judgment and order dated 13.03.1989 and sentenced as stated in

paragraph no. 1 of this judgment, whereas, they have been acquitted of the charge

under Section 323/34 of IPC. However, co-accused Umarddin has been acquitted

of all the charges.

12. Being aggrieved by their conviction and sentence, accused-appellants have

preferred the present criminal appeal.

13. We have heard Sri Imran Ullah, learned Amicus Curiae for the accused-

appellants and Sri J.K. Upadhyay, learned A.G.A. for the State-respondent.

4

14. Learned Amicus Curiae submits as under:-

(I) that presence of PW-1 Hasin Khan, PW-2 Sarfaraz

and PW-3 Jamil Ahmad at the spot is highly doubtful. It was

pointed out that as per prosecution evidence, after incident,

deceased was not taken to hospital, rather he remained

present at the spot till police reached there. The conduct of

PW-1, PW-2 and PW-3 for not taking the deceased to

hospital is unnatural and it falsifies their presence at the

spot.

(II) that PW-1 Hasin Khan, PW-2 Sarfaraz and PW-3

Jamil Ahmad are interested witnesses. PW-1 and PW-3 are

brothers and they are sons of the deceased and thus, they are

interested witnesses. As per prosecution version, one Aizaz

has sustained injury at the spot, but he was not examined.

As per prosecution version, many persons have reached at

the spot, but no independent witness was examined.

(III) that the oral evidence is not consistent with the

medical evidence. As per prosecution version, both the

accused-appellants Salauddin and Riazuddin have fired one

bullet each at deceased, but injury Nos. 1, 2, 3 and 4

sustained by the deceased are not result of firearm injury

and thus, injuries have not been explained.

(IV) that motive alleged by the prosecution is not

sufficient so as to cause murder of deceased. As per

prosecution version merely an altercation has taken place,

wherein accused-appellant Riazuddin has slapped PW-1

Hasin Khan, but such minor incident cannot be a motive to

commit murder of the deceased.

(V)that alleged dying declaration Ex. Ka-11 of deceased

is not reliable. There is no evidence that deceased was in fit

state of mind to make an statement. There are corrections

and overwriting in Ex. Ka-11, which further falsify alleged

dying declaration.

5

(VI) that there are material contradictions and

inconsistencies in prosecution case. It was submitted that it

is not the case of prosecution that after alleged fist incident

of slapping, PW-1 Hasin Khan and his brother Shakil have

stated that they would return back and thus, the accused

persons were not aware as to deceased and his sons would

come at their house. The version of prosecution that when

deceased and his sons reached at the house of accused

persons, both the accused-appellants Salauddin and

Riazuddin were standing, having country made pistols in

their respective hands, is not probable. Further, PW-3 Jamil

Ahmad has admitted that the FIR was got scribe by police

officers, which further affects prosecution case adversely. It

was also pointed out that PW-3 in his cross-examination has

stated that after incident, till police reached there, no

member of his family has gone to the spot to help deceased

Abdul Rehman Khan, while, PW-1 in his cross-examination

has stated that daughter of deceased, namely, Shama has

reached at the spot. It was submitted that all these

contradictions and inconsistencies render prosecution

version unreliable.

15. Per contra, it was submitted by learned State counsel that conviction of

accused-appellants is based on evidence of three eye witnesses and all these

witnesses have been subjected to cross-examination but no such fact could emerge

so as to doubt their presence at the spot or to doubt authenticity of their version.

Merely, because soon after the incident, deceased was not taken away to hospital,

it cannot be said that conduct of these witnesses is unnatural. FIR of alleged

incident has been lodged by PW-3 Jamil Ahmad without any undue delay naming

all the accused persons. There is no material contradiction between oral and

medical evidence. In such incident, injury like injury nos. 2, 3 and 4 sustained by

the deceased are quite probable in such incident. He further submitted that there

was not even suggestion from the side of accused persons to the eye witnesses as

to why they falsely implicate the accused-appellants. It was argued that there is

overwhelming evidence against the accused-appellants and there is no infirmity in

6

conviction and sentence of accused-appellants.

16. We have heard the rival submissions of learned counsel for the parties and

perused the record.

17. PW-1 Hasin Khan is son of deceased. In evidence, he stated that on the day

of incident, after seeing a wrestling competition, when he along with his brother

Shakil returned at his village and reached near house of accused-appellants,

accused-appellants Salauddin, Riazuddin and co-accused Umarddin met them at

around 5:45 PM. Accused-appellant Riazuddin asked him as to why he has abused

his brother yesterday. PW-1 denied the same and thereafter, accused-appellant

Riazuddin has slapped him. PW-1, further, stated that he and his brother Shakil

went to their home and narrated the incident to their father Abdul Rehman Khan.

After that, his father took him as well as Shakil with him and went to house of

accused-appellant Riazuddin to lodge protest. There accused-appellants Salauddin

and Riazuddin having country made pistols and co-accused Umarddin having

brick, were standing and when his father asked them as to why they have beaten

his son, on exhortation of accused-appellant Salauddin, accused-appellants

Salauddin and Riazuddin fired shots at deceased. PW-1 stated that his father

sustained firearm injury and fell down. Hearing noise, Imran, Sarfaraz, Shareef,

Aizaz, Jameel and others persons reached there. Co-accused Umarddin has pelted

a brick at Aizaz and resultantly Aizaz has also sustained injuries.

18. PW-2 Sarfaraz Khan stated that he is milkman by profession and on the day

of incident, he saw that in front of house of accused-appellant Salauddin, deceased

Abdul Rehman Khan has sustained bullet injuries and accused-appellants

Salauddin and Riazuddin were having country made pistols in their hands, while

co-accused Umarddin has pelted a brick. Later on, due to injuries, Abdul Rehman

Khan has died.

19. PW-3 Jamil Ahmad has also made a similar statement like that of PW-1

Hasin Khan. PW-3 stated that in the evening of 14.09.1986, when his brothers

Shakil and Hasin Khan came back at village after seeing a wrestling competition

and reached in front of house of accused-appellants, accused-appellants were

standing there. Accused-appellant Riazuddin confronted his brother Hasin by

saying that why he has abused his brother yesterday. Hasin Khan denied the same,

but accused-appellant Riazuddin has slapped him. Shakil and Hasin came to their

7

house and told this incident to their father. Abdul Rehman Khan took his sons

Shakil and Hasin with him and went to the house of accused-appellants. PW-3 was

also following them. PW-3, further, stated that when his father and brothers

reached near the house of accused persons, accused-appellants Riazuddin and

Salauddin were standing there and they were having country made pistols in their

hands. Co-accused Umarddin was also standing near them. Accused-appellant

Salauddin made exhortation to kill the deceased and consequently, both the

accused-appellants fired at deceased, causing firearm injuries to deceased.

Deceased Abdul Rehman Khan fell down on the ground. One Sarfaraz, Imran and

some other persons have also reached at the spot. Co-accused Umarddin has

caused injuries to his cousin Aizaz by pelting brick at him.

20.PW-4, Ram Narain has conducted inquest proceedings and PW-5 Dr. P.N.

Khanna has conducted post-mortem on dead body of deceased. PW-6 constable

Jagpal Singh, PW-9 Ram Saran Sharma and PW-10 H.C. Banwari Lal are formal

witnesses, who have assisted during investigation.

21. PW-7 S.I. Satpal Singh has conducted investigation. He has also proved

dying declaration of deceased and stated that he has recorded statement of

deceased, which has been proved by him as Ex. Ka-11

22.PW-8 Dr. V.K. Sharma has medically examined the deceased, vide MLC

Ex. Ka-16.

23.DW-1 Anees Ahmad, Advocate, Notary stated that on 25.06.1987, Sarfaraz

Khan has brought his affidavit before him for attestation and he was identified by

Sri Upendra Singh, Advocate. He has read over contents of affidavit to Sarfaraz

and thereafter, he has put his thumb impression on the affidavit. The said affidavit

was verified by DW-1. He has proved the said affidavit as Ex. Kha-2.

24.So far the contention, that presence of PW-1 Hasin Khan, PW-2 Sarfaraz

and PW-3 Jamil Ahmad at spot is doubtful, is concerned, perusal of record shows

that these witnesses have made clear and cogent statements about their presence at

the spot and have narrated entire incident in detail. PW-1 Hasin Khan and PW-3

Jamil Ahmad have stated that they have gone with deceased whereas version of

PW 2 Sarfaraz is that he is milkman by profession and at that time, he was

collecting milk from a nearby home. First information report of the incident has

been lodged by PW-3 naming all the accused stating all necessary details of

8

incident. The alleged incident took place at 06.00 PM in mid of village. Names of

PW-1 Hasin Khan and PW-2 Sarfaraj were mentioned in the FIR, lodged by PW-3

Jamil Ahmad. These witnesses have been subjected to lengthy cross-examination

but no such substantial fact could emerge, which may create any doubt about their

presence at the spot. In view of these facts, there is no ground to doubt presence of

these witnesses at the spot and thus, contention of learned counsel has no force.

It is correct that PW-1 and PW 3 are brothers and son of deceased but mere

relationship cannot be a factor to doubt testimony of a witness, which otherwise

inspires confidence. It is well settled that a natural witness may not be labelled as

interested witness. Interested witnesses are those who want to derive some benefit

out of the litigation/case. In case the circumstances reveal that a witness was

present on the scene of the occurrence and had witnessed the crime, his deposition

cannot be discarded merely on the ground of being closely related to the victim.

Generally close relations of the victim are unlikely to falsely implicate anyone.

Relationship is not sufficient to discredit a witness unless there is motive to give

false evidence to spear the real culprit and falsely implicate an innocent person is

alleged and proved. A witness is interested only if he derives benefit from the

result of the case or as hostility to the accused. In case of State of Punjab Vs

Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Hon’ble Apex Court

that ordinarily the near relations of the deceased would not depose falsely against

innocent persons so as to allow the real culprit to escape unpunished, rather the

witness would always try to secure conviction of real culprit. On the issue of

appreciation of evidence of interested witnesses, Dalip Singh Vs. State of

Punjab, AIR 1953 SC 364 = 1954 SCR 145, is one of the earliest cases on the

point. In that case, it was held:

"A witness is normally to be considered independent

unless he or she springs from sources which are likely to be

tainted and that usually means unless the witness has cause,

such as enmity against the accused, to wish to implicate him

falsely. Ordinarily, a close relative would be the last to screen

the real culprit and falsely implicate an innocent person. It is

true, when feelings run high and there is personal cause for

enmity, that there is a tendency to drag in an innocent person

against whom a witness has a grudge along with the guilty,

but foundation must be laid for such a criticism and the mere

fact of relationship far from being a foundation is often a

sure guarantee of truth."

Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC

9

2274 = (1977) 4 SCC 452, the Apex Court held:

"It is well settled that the evidence of interested or

inimical witnesses is to be scrutinised with care but cannot

be rejected merely on the ground of being a partisan

evidence. If on a perusal of the evidence the Court is

satisfied that the evidence is creditworthy there is no bar in

the Court relying on the said evidence."

In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981)

3 SCC 675, a three-judge Bench of this Court observed that:

".. it is well settled that interested evidence is not

necessarily unreliable evidence. Even partisanship by itself

is not a valid ground for discrediting or rejecting sworn

testimony. Nor can it be laid down as an invariable rule that

interested evidence can never form the basis of conviction

unless corroborated to a material extent in material

particulars by independent evidence. All that is necessary is

that the evidence of interested witnesses should be subjected

to careful scrutiny and accepted with caution. If on such

scrutiny, the interested testimony is found to be intrinsically

reliable or inherently probable, it may, by itself, be

sufficient, in the circumstances of the particular case, to base

a conviction thereon."

In Jayabalan V UT of Pondicherry (2010) 1 SCC 199, the Supreme Court

held as under:

"23. We are of the considered view that in cases where

the court is called upon to deal with the evidence of the

interested witnesses, the approach of the court, while

appreciating the evidence of such witnesses must not be

pedantic. The court must be cautious in appreciating and

accepting the evidence given by the interested witnesses but

the court must not be suspicious of such evidence. The

primary endeavour of the court must be to look for

consistency." (emphasis supplied)

Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the

following observations were made by the Apex Court:

"The requirement of law is that the testimony of

inimical witnesses has to be considered with caution. If

otherwise the witnesses are true and reliable their testimony

cannot be thrown out on the threshold by branding them as

inimical witnesses. By now, it is well-settled principle of law

that enmity is a double- edged sword. It can be a ground for

false implication. It also can be a ground for assault.

Therefore, a duty is cast upon the court to examine the

testimony of inimical witnesses with due caution and

diligence."

10

The contention about branding the witnesses as interested witness and

credibility of close relationship of witnesses has been examined by Hon'ble Apex

court in a number of cases. A close relative, who is a very natural witness in the

circumstances of a case, cannot be regarded as an 'interested witness'. The mere

fact that the witnesses were relations or interested would not by itself be sufficient

to discard their evidence straightway unless it is proved that their evidence suffers

from serious infirmities which raises considerable doubt in the mind of the court.

A survey of the judicial pronouncements of the Hon'ble Apex Court on this point

leads to the inescapable conclusion that the evidence of a closely related witness is

required to be carefully scrutinised and appreciated before any conclusion is made

to rest upon it, regarding the convict/accused in a given case. Thus, the evidence

cannot be disbelieved merely on the ground that the witnesses are related to each

other or to the deceased. In case the evidence has a ring of truth to it, is cogent,

credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai

Vs. State of Bihar, (2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1

SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari &

Ors. Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State

of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati Venkat Reddy &

Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).

In the instant case, it is correct that PW-1 Hasin Khan and PW-3 Jamil

Ahmad are brothers and they are sons of deceased Abdul Rehman Khan, but as

stated above, merely relationship cannot be a ground to doubt their testimony,

particularly, when these witnesses have stood the test of cross-examination and no

such material fact could be shown so as to doubt their presence at the spot. So far

as PW-2 Sarfaraz Khan is concerned, he is not related to complainant or deceased

and thus, he cannot be termed as an interested witnesses. Similarly, there is

nothing to indicate that he was having any enmity with the accused persons. In

fact, PW-2 appears a thoroughly independent witness. Alleged incident took place

at around 6:00 PM and as per PW-2, he is a milkman by profession and collecting

milk from various households. Thus, his presence at the spot appears quite natural.

Further, he has been subjected to cross-examination, but no such fact could emerge

in his cross-examination, so as to create any doubt about his presence at the spot.

In view of all these facts, we do not find any force in the contention raised by

learned Amicus Curiae.

11

25.It is correct that as per prosecution version, after incident of firing, co-

accused Umarddin has caused injury to Aizaz, who has reached at the spot after

hearing noise, but said Aizaz has not been examined by prosecution, however, it

also cannot be a ground to doubt the testimony of the eye witnesses examined by

the prosecution. No doubt, being an injured of same incident, he was an important

witness, but his medical examination report was neither filed nor proved. In view

of all these facts and also considering that prosecution has examined three eye

witnesses, prosecution case is not affected on the ground that alleged Aizaz was

not examined or that other persons reached at the spot were not examined. It is

well settled that prosecution is not required to examine all the witnesses of

incident. It is quality and not quantity of evidence, which matters. In Raghubir

Singh Vs. State of U.P., (1972) 3 SCC 79, it was held that the prosecution is not

bound to produce all the witnesses said to have seen the occurrence. Material

witnesses considered necessary by the prosecution for unfolding the prosecution

story alone need be produced without unnecessary and redundant multiplication of

witnesses. In view of the above, contention of learned Amicus Curiae has no force.

26.The testimony of PW-2 Sarfaraz Khan was assailed on the ground that in

his cross-examination, he has stated that when he reached at the spot, many

persons have already assembled there and he has also admitted that when he

reached at the spot, deceased has already sustained firearm injury and he was

bleeding. On these basis, it was argued that he was not the eye witness of the

incident. Considering entire statement of PW-2 Sarfaraz Khan, it appears that he

has not seen the actual incident of firing at deceased and that when he reached at

the spot, deceased has already sustained firearm injuries, however, his statement is

still relevant on the description of incident after the alleged incident of firing. PW-

2 has clearly stated that when he has reached at the spot, deceased has already

sustained firearm injury and his injury was bleeding and that both the accused-

appellants Salauddin and Riazuddin were standing there having country made

pistols. Further, he has also deposed clearly that this incident took place just

outside the house of accused-appellants. It is correct that PW-1 Hasin Khan has

stated in his cross-examination that when his father sustained bullet injury, except

deceased, PW-1 and his brother Shakil, none was there and that other persons have

reached at the spot after hearing sound of firing, but this fact also establishes that

PW-2 Sarfaraz Khan has reached at the spot after hearing sound of firing as he was

12

collecting milk in a nearby house.

27. So far the contention regarding variance between medical evidence and

ocular testimony is concerned, it is trite that oral evidence has to get primacy as

medical evidence is basically opinionative. It is only when the medical evidence

especially rules out the injury as claimed to have been inflicted as per the oral

testimony, then only in a given case, the Court has to draw an adverse inference. It

is well settled by a series of decisions of the Apex Court that while appreciating

variance between medical evidence and ocular evidence, oral evidence of

eyewitnesses has to get primacy as medical evidence is basically opinionative. But

when the court finds inconsistency in the evidence given by the eyewitnesses

which is totally inconsistent to that given by the medical experts, then evidence is

appreciated in a different perspective by the courts. It is well settled that the oral

evidence has to get primacy since medical evidence is basically opinionative. In

Ramanand Yadav v. Prabhu Nath Jha and others (2003) 12 SCC 606, the

Supreme Court held as under:-

“17. So far as the alleged variance between medical

evidence and ocular evidence is concerned, it is trite law that

oral evidence has to get primacy and medical evidence is

basically opinionative. It is only when the medical evidence

specifically rules out the injury as is claimed to have been

inflicted as per the oral testimony, then only in a given case

the court has to draw adverse inference.”

The same principle was reiterated in State of U.P. v. Krishna Gopal and

another (1988) 4 SCC 302, where the Supreme Court held

“that eye witnesses’ a c c o u n t w o uld r e q uir e a c a r e f

ul independent assessment and evaluation for their

credibility which should not be adversely prejudged making

any other evidence, including medical evidence, as the sole

touchstone for the test of such credibility.”

In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484,

the Supreme Court observed as under: .

“Ordinarily, the value of medical evidence is only

corroborative. It proves that the injuries could have been

caused in the manner alleged and nothing more. The use

which the defence can make of the medical evidence is to

prove that the injuries could not possibly have been caused

in the manner alleged and thereby discredit the eye-

witnesses. Unless, however the medical evidence in its turn

goes so far that it completely rules out all possibilities

whatsoever of injuries taking place in the manner alleged by

13

eyewitnesses, the testimony of the eye-witnesses cannot be

thrown out on the ground of alleged inconsistency between it

and the medical evidence.”

In State of U.P. v. Hari Chand, (2009) 13 SCC 542, the Apex Court re-

iterated the aforementioned position of law and stated that in any event unless the

oral evidence is totally irreconcilable with the medical evidence, it has primacy.

From the above stated authorities, it is clear that though the ocular

testimony of a witness has greater evidentiary value vis-a-vis medical evidence,

but when medical evidence makes the ocular testimony improbable, that becomes

a relevant factor in the process of the evaluation of evidence. In fact, where the

medical evidence goes so far that it completely rules out all possibility of the

ocular evidence being true, the ocular evidence may be disbelieved.

28. In the present case, as per prosecution version, both the accused-appellants

Salauddin and Riazuddin have fired one shot each at deceased with country made

pistols. The post-mortem report of deceased shows that deceased has sustained one

gunshot wound of entry on left temporal region, thus it is apparent that deceased

has sustained firearm injury. As per Autopsy Surgeon, cause of death was gunshot

injury on head and, thus it is also clear that deceased died due to alleged firearm

injury. It is correct that as per PW-8 Dr. V.K. Sharma, who has medically examined

deceased Abdul Rehman Khan in an injured condition, has stated that besides the

firearm injury at left side of face, deceased has sustained one abrasion of 2 cm x .5

cm on left side of face, one contused swelling on left eye and one lacerated wound

of 1 cm x .2 cm x skin deep on left side of forehead, but PW-8 has clearly stated

that injury nos. 2, 3 and 4 are possible by falling on brick road. Similarly, PW-5

Dr. P.N. Khanna has also stated that injury no. 2 is possible by friction with some

blunt object. He has clarified that it was a small and superficial abrasion and it was

not possible by club. Considering nature of injury nos. 2, 3 and 4 and also taking

into account statements of PW-5 Dr. P. N. Khanna and PW-8 Dr. V.K. Sharma, it is

quite probable that these injuries are possible by falling on brick road. Non-

explanation of these superficial injuries cannot be termed fatal, particularly, when

version of prosecution is that both the accused-appellants Salauddin and Riazuddin

have fired at the deceased and as per medical evidence, deceased has died of

firearm injury. Alleged inconsistency regarding injury nos. 2, 3 and 4 is not so

material as to make ocular testimony improbable. At any rate it can not be said that

medical evidence makes the ocular testimony improbable or that the medical

14

evidence goes so far that it completely rules out all possibility of the ocular

evidence being true. Considering all aspects of the matter, we do not find any force

in the contention of learned Amicus Curiae.

29. So far as the question of motive is concerned, it is well settled that if a case

is based on direct evidence, motive has no much significance. Clear proof of

motive lends additional assurance to other evidence, but the absence of motive

does not lead to contrary conclusion, however in that case, other evidence has to be

closely scrutinized. If positive evidence is clear and cogent, the question of motive

is not important. Evidence of motive may be relevant to lend assurance to the other

evidence, but motive is not a sine qua non for the commission of a crime.

Moreover, failure to prove motive or absence of evidence on the point of motive

would not be fatal to the prosecution case when the other reliable evidence

available on record unerringly establishes the guilt of the accused. Reference may

be made to the case law pronounced in case of State of U.P. V Nawab Singh,

2005 SCC (Criminal) 33.

Dealing with similar issue the Apex Court in State of U.P. Vs. Kishanpal

& Ors., (2008) 16 SCC 73 held as under:

"The motive may be considered as a circumstance which is

relevant for assessing the evidence but if the evidence is

clear and unambiguous and the circumstances prove the

guilt of the accused, the same is not weakened even if the

motive is not a very strong one. It is also settled law that the

motive loses all its importance in a case where direct

evidence of eyewitnesses is available, because even if there

may be a very strong motive for the accused persons to

commit a particular crime, they cannot be convicted if the

evidence of eyewitnesses is not convincing. In the same way,

even if there may not be an apparent motive but if the

evidence of the eyewitnesses is clear and reliable, the

absence or inadequacy of motive cannot stand in the way of

conviction."

As regards to the importance of existence of motive in a criminal case, it is

worthwhile to look at the ratio laid down by this Court in Shivaji Genu Mohite v.

State of Maharashtra, AIR 1973 SC 55:

“In case the prosecution is not able to discover an impelling

motive, that could not reflect upon the credibility of a

witness proved to be a reliable eye-witness. Evidence as to

motive would, no doubt, go a long way in cases wholly

dependent on circumstantial evidence. Such evidence would

form one of the links in the chain of circumstantial evidence

15

in such a case. But that would not be so in cases where

there are eye-witnesses of credibility, though even in such

cases if a motive is properly proved, such proof would

strengthen the prosecution case and fortify the court in its

ultimate conclusion. But that does not mean that if motive is

not established, the evidence of an eye-witness is rendered

untrustworthy”.

Reverting to the facts of present case, it would be pertinent to mention that

it is the consistent case of the prosecution that on 14.09.1986 at around 5:45 PM,

when PW-1 Hasin Khan and his brother Shakil were coming after seeing a

wrestling competition and reached near house of accused persons, accused-

appellant Riazuddin asked Hasin Khan as to why he abused his brother and

slapped Hasin Khan. PW-1 and Shakil went to their house and narrated this

incident to their father Abdul Rehman Khan and thereafter, when father of PW-1

and Shakil went to house of accused persons to lodge protest, both accused-

appellants Salauddin and Riazuddin have fired shots at him. On this point,

statements of PW-1 Hasin Khan and PW-3 Jamil Ahmad are clear and cogent.

Accused persons have not come with any such case that before the incident of

murder of deceased, alleged incident of alteration and slapping of PW-1 Hasin

Khan has not taken place. Though, as stated above, the case is based on testimony

of three eye witnesses, however, in view of above facts, it cannot be stated that

there was no motive on the part of the accused-appellants to commit murder of the

deceased. Though, there is nothing to indicate that accused-appellants were having

enmity with the deceased, but as the alleged earlier incident has taken place with

the sons of deceased and thereafter, deceased went to house of accused persons to

lodge his protest, in such facts and circumstances, it cannot be said that there was

no motive on the part of the accused-appellants to commit the incident in question.

30. So far as the inconsistencies and contradictions as pointed out by learned

Amicus Curiae are concerned, it is correct that in his cross-examination PW-3

Jamil Ahmad has stated that he got written report of incident by Police Officers,

but considering his entire statement, no such inference can be drawn that Tehrir

Ex. Ka-1 was scribe by any police official or was dictated by any police official. In

his examination-in-chief, PW-3 Jamil Ahmad has clearly stated that he got scribed

the written complaint Ex. Ka-1 from one Abrar and has put his thumb impression

after it was read over to him and thereafter, it was submitted at police station

Sardhana, district Meerut. This version of PW-3 also finds corroboration from

16

written complaint Ex. Ka-1 as the scribe of this complaint has been shown Abrar

Khan. Even in his cross-examination, PW-3 stated that he has got written

complaint Ex. Ka-1 from Abrar in the village and thereafter, he has gone to police

station. PW-3 has reiterated in his cross-examination that the said complaint was

read over to him. Merely because at one place in his cross-examination, it has crept

in that he got written the report from police officers, no such inference can be

drawn that the written complaint Ex. Ka-1 was written at the dictation of police

officials. Here it may be pertinent to mention that PW-3 Jamil Ahmad appears an

illiterate witness as he has put his thumb impression on the written complaint. As

in cross-examination of a witness, questions put to this witness are not recorded,

thus, it is not clear that what exact question was asked from this witness and in

what sense and context he has replied the same. Such type of paraphrasing

regarding statement of a witness is quite probable and natural. The statement of a

witness has to be considered as a whole and not a single sentence can not be

appreciated out of context. Considering entire statement of PW 3 Jamil Ahmed in

the attending facts and circumstances of case, no adverse inference can be drawn

on ground that in his cross-examination, at one place PW 3 Jamil Ahmed stated

that he got written report from police.

Similarly, so far as other contradictions like that in his cross-examination,

PW-1 Hasin Khan has stated that after the incident, till police reached at the spot,

he, Shakil, Jameel, his sister or mother have not gone to spot to check as to

whether his father is died or alive, whereas While at another place, he stated that

after incident of firing, his younger sister Shama has brought a trouser, which was

put at head of deceased and that PW-3 has stated in his cross-examination that after

incident, no member of his family went at the spot till police reached there, these

are minor contradictions and inconsistencies. Such contradictions and

inconsistencies do not affect the pith and substance of the eye witnesses. It is well

settled in law that the minor discrepancies are not to be given undue emphasis and

the evidence is to be considered from the point of view of trustworthiness. The test

is whether the same inspires confidence in the mind of the Court. If the evidence is

incredible and cannot be accepted by the test of prudence, then it may create a dent

in the prosecution version. If an omission or discrepancy goes to the root of the

matter and ushers in incongruities, the defence can take advantage of such

inconsistencies. It needs no special emphasis to state that every omission cannot

17

take place of a material omission and, therefore, minor contradictions,

inconsistencies or insignificant embellishments do not affect the core of the

prosecution case and should not be taken to be a ground to reject the prosecution

evidence. It is only the serious contradictions and omissions which materially

affect the case of the prosecution but not every contradiction or omission. (See

Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead)

through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari

Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee

Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of

Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal,

(2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr.,

(2013) 12 SCC 796).

31. Next piece of evidence against accused-appellants is alleged dying

declaration of deceased, recorded by PW 7 SI Satpal Singh. PW-7 has, inter alia,

stated that after reaching at the spot, he has recorded statement of deceased Abdul

Rehman Khan, who was in an injured condition at that time. PW-7 stated that he

has recorded whatever was stated by deceased. PW-7 has proved alleged statement

of deceased as Ex. Ka-11. It was argued by learned Amicus Curiae that there is no

evidence that deceased was in a fit state of mind to make a statement and further,

the original statement of deceased has not been proved and that there are also

corrections in the said statement. In this connection, it may be seen that as per

statement of PW-7, he has recorded statement of deceased, who was injured in an

injured condition at that time, in the case diary. Apparently at that time, statement

of deceased was recorded under Section 161 Cr.P.C. Thus, after death of deceased,

said statement is admissible in evidence under Section 32(1) of Indian Evidence

Act as this statement relates to cause of death of deceased. Therefore, alleged

statement Ex. Ka-11 of deceased has to be treated as dying declaration. Though,

there is no medical evidence that deceased was in a fit state of mind to make

statement but PW-7 clearly stated that deceased has made such statement. No such

fact or circumstance could be shown so as to indicate that deceased was not in a fit

state of mind. Here, it may be stated that it is nobody's case that after sustaining

alleged firearm injuries, deceased became unconscious or that he was unable to

speak. Further, deceased has died after two days of the alleged incident.

Considering all these facts and circumstances, no such inference can be drawn that

18

deceased was not in a fit state of mind to make a statement. It is correct that

statement was recorded in case diary, but perusal of the record shows that it was

exhibited as Ex. Ka-11 by PW-7. Merely because some correction was made in the

copy of Ex. Ka-11, it would not make any difference. Though, generally dying

declaration recorded by a Magistrate is considered on different footing but dying

declaration recorded by a police officer is also relevant and can be proved against

accused persons. The reliability of dying declaration depends on peculiar facts and

circumstances of each case. In the instant case, there is nothing even to remotely

indicate that why PW-7, who was performing his duty as Investigating Officer of

the case, would depose falsely regarding alleged dying declaration Ex. Ka-11 of

deceased. The version of PW-7 S.I. Stapal Singh is corroborated by PW-3, who has

stated in his cross-examination that statement of his father was recorded by the

Investigating Officer. Considering entire facts and evidence, there are no sufficient

and plausible reasons to discard the alleged dying declaration. Though besides, the

dying declaration of Ex.Ka-11 of the deceased, there is also overwhelming

evidence in the form of three eye witnesses to establish the involvement of both

the accused-appellants in the incident, however, alleged dying declaration Ex. Ka-

11 could not to be ignored. Version of PW-1, PW-2 and PW-3 is further supported

by dying declaration Ex. Ka-11.

32. Close scrutiny of entire evidence makes it clear that testimony of PW-1

Hasin Khan and PW-3 Jamil Ahmad is clear and cogent. Version of PW-1 finds

ample corroboration from PW-3, who has lodged FIR without any undue delay.

Both these witnesses have been subjected to cross-examination, but they remained

firm to prosecution version and no such fact or material contradiction could

emerge so as to doubt their presence at the spot or to doubt their authenticity. The

version of PW-1 and PW-3 also finds support from the statement of PW-2 Sarfaraz

Khan, who has reached at the spot soon after the incident. In all material

particulars, the ocular testimony has been corroborated by medical evidence. One

important aspect of the matter is that there is absolutely nothing as to why these

witnesses would depose falsely against the accused-appellants, sparing the actual

assailant of their father. The defence has not put up any such cogent version that

the witnesses have deposed falsely on account of some previous enmity. No

specific suggestion has been made to PW-1 Hasin Khan and PW-3 Jamil Ahmad as

they were deposing falsely due to any specific reason. Considering all aspects of

19

the case, testimony of PW-1 Hasin Khan, PW-2 Sarfaraz and PW-3 Jamil Ahmad

appears reliable. The version of prosecution further finds support from dying

declaration exhibit ka-11. Entire evidence on record proves involvement of both

the accused-appellants beyond doubt.

33 view of aforesaid, we are of the considered view that the trial court was

justified in convicting the accused-appellants under Section 302/34 of IPC and,

accordingly, conviction and sentence of accused-appellants, namely, Salauddin and

Riazuddin is affirmed. Both the accused-appellants are stated to be on bail. Their

bail bonds are cancelled and they shall be taken into custody forthwith to serve the

remaining sentence.

34.The appeal is, accordingly, dismissed.

35. Sri Imran Ullah, learned Amicus Curiae, who has argued on behalf of the

accused-appellants, shall be paid Rs. 10,000/- as his remuneration.

36. Copy of this judgment be sent to Court concerned for necessary

compliance.

Dated: 10.12.2019

Anand

(Raj Beer Singh, J) (Pritinker Diwaker, J)