State v. Saddique Beg & Ors

f- • ^ IN THE HIGH COURT OF DFXHI AT NEW DELHI + CrL A. 818/2007-Reserved on: 25.02.2011 Crl. A. 264/2011 - Reserved on: 01.03.2011 Both decided on: 10.03.2011 CRL. A. 818/2007 SADIQBEG ' • Appellant Through: Sh. Ajay Verma,Amicus. Versus THESTATE Respondent Through:Sh. LovkeshSawhney,APP, for the State. + CRL. A. 264/2011 STATE Appellant Through:Sh. SaleemAhnied,Addl. StandmgCounselfor the State along withInspectorJagwinderSingh,PoliceStationMotiNagar. Versus SADDIQUEBEGAND ORS. Respondents Through:Sh. M. Tripathiwith Sh. Harish Sharma,Advocates. CORAM: MR. JUSTICE S. RAVINDRA BHAT MR. JUSTICE G. P. MTTTAL

¶1Wliether the Reporters of local papers YES may be allowed to see the judgment?

¶2To be referred to Reporter or not? YES

¶3Whether the judgment should be YES reported in the Digest? MR. JUSTICE S.RAVINDRA BHAT Crl.A.818/2007 & Crl.A. 264/2011 Page 1 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. W\ %

¶1This commonjudgmentwill dispose of an appeal, Cr. A. No. .818/2007preferredby Saddique, against a judgment and order of the Learned Additional Sessions Judge dated

30.10.07,in SC No. 102/01/06,convictingthe appellantfor committmgoffencesunder Section 302/34IPG, as weU as CriminalAppealNo. 264 of2011, by the State,whichwas grantedleave to appealby this court, againstthe samejudgment-of the said AdditionalSessionsJudge. The State is aggrievedby the acquittalof the respondentsin that appeal,i.e. Virenderand Prashant. For convenience,this courtproposesto referto the appellantSadique,and the acquittedaccused, whoareRespondentsin the state'sappeal,by theirnames.

¶2Accordmgto the prosecution,on 06.02.2000,one Harender,who returned home on a scooter,told his brother Chandveer(PW-3) that Sadiquehad been quarrelhngwith a rickshaw puller,whom he (Harender)saved. Sadiqueallegedlydid not take kindlyto this and threatened him i.e. Harender;he even threatened to kill him. PW-3 claimed that he left Harender at home and went to Karam Pura to pick up some medicines.When he was near A & B Block of SBM Colony,he witnessedHarenderbemg assaultedby three boys. One of them had caughthold of him by the waist. Sadique, whom Chandveerknew, was armed with a knife. The third boy was armed with an Ustra (razor). The two boys i.e. Sadique and the other (who was armed with Ustra) were assaulting Harender with the knife and the Ustra. Chandveer raised an alarm saying Bachao bachao; upon this, all the three boys left Harender and fled from the spot. A number of persons from the colony had gathered there. Chandveer and Rajeev (PW-7) then removed Harender to the ESI hospital, Basai Darapur, and got him admitted there. This information was passed on to the Police Station, Moti Nagar, and recorded in DD No. 34B. The prosecution alleged that Harender was referred for surgery. At that time, SI Mahinder Singh sought to record his statement; it was not possible, because he was unfit to make any statement: Instead, Chandveer's statement was recorded (PW-3/A), and sent with rukka to record an FIR, which was done, in respect of offences imder Sections 307/34 IPC. Harender succumbed to his injuries at 9:30 AM the next day; the police duty officer sent this information to the Police Station, through DD NO. 64 of 07.02.2000 (Ex. PW-13/A). Postmortem was conducted upon the dead body; later, after investigation, Sadique was arrested on 09.02.00. The police claimed that a country made pistol was recovered, for which another FIR No. 55/2000 was registered under Section 25 of the Crl. A.818/2007 &Crl. A. 264/2011 Page 2 Anil? Act. He allegedlyadmittedto commissionofthe crime,and involvementofVirenderand Prashant.Sadiqv.e'sdisclosurestatement,and laterhis leadingthe policeto the concernedplace, resultedin the recoveryofadii^^er,Ex. P-1,whichwas sealedand takeninto possessionthrough Ex. PW-3/A. The other two accused, Prashant, were arrested m a park, on

09.02.2000; Virender'sarrestled to his disclosurestate^neiK-Ex.PW-3/Fand recoveryofUstra. Sadiquealso assistedin the recoveryofhis trousersEx. P-6 with bloodstains,whichwas taken into possessionthroughMemo Ex. PW-21/C.Virenderassistedin the recoveryofapulloverEx. P-5, withbloodstains,throughMemo Ex. PW-21/D;Prashantassistedin recoveryofhis iioiiser Ex. P-3, and shoes Ex. P-4, liiroughMemo Ex. PW-21/E.Medicalopinionwas furnishedto the prosecutionwhetherthe injuriescould have been inflictedwith the weapons. On the basis of these materials,the prosecutionfiled its report, pressing charges under Sections 302/34 IPC agamstall the threeaccused;all ofthem were charged,by the Trial Court. They enteredthe plea of not guiltyand claimedtrial.

¶3The prosecutionrelied upon testimonyof 22 witiiesses.The main witnessesrelied onm this case were PW-3 Chandveer;PW-5, PradeepKumar;PW-7 Rajeev;PW-21 SIMahenderand PW-22 Gurdeep, the latter two being police witnesses who had investigated the case. Considering the materials on record includmg the depositions of these witnesses, and submissions on behalf of the parties, the Trial Court convicted Sadique for the offences punishableunder Sections302/34 IPC, and acquittedthe other two accused, i.e Vnender and Prashant. These two appeals have been preferred against the impugnedjudgment of the Trial Court.

¶4Mr. Ajay Verma, learned counsel for Sadique, submitted that the Trial Court erred in recording his conviction, since the impugned judgment clearly states that the entire prosecution story about his having made a disclosure statement, could not be believed. In this context, counselpointedto the testimoniesof PW-19, PW-10 and SI Ran Singh (PW-20),and submitted that they were contradictory. The court even recorded that in view of the contradictions of police witnesses,regardingrecovery of the dagger,that version could not be believed. In spite of these, and crucially,despitethe appellantSadiquehaving been acquittedof the offenceunder Section 25 Arms Act, the impugned judgment recorded his conviction, in clear error of law. Crl.A. 818/2007 & Cri.A. 264/2011 Page 3 X

¶5It was nextarguedthatthe TrialCourtgavedisproportionatecredenceto thetestimonyof PW-3, who was clearly an interested and partisan one, being the brother of the deceased Harender.It was also arguedthatthe witnesshad clearlymentionedaboutone Sanjay,who also allegedlywitnessedthe incident;yetthe prosecutiondid not examinehim. Learnedcounselalso submittedthatthe credibilityofPW-3 is suspectbecausehe did not mentionaboutthe presence of PW-5,anotherallegedeye witness.

¶6It was submittedthatPW-3'sversioncannotalso be acceptedbecausehe couldnot even recollectwhetherhis clotheshad been blood stained,when taking Harenderto the hospital.If indeedthat were the position,this fact would have been imprintedin the mind ofthe witness. The absenceof any recollectionfalsifiedthe storyofPW-3 abouthavmgvdtnessedthe incident, as claimedby him, and havingtakenthe deceasedtothe hospital.

¶7It is submittedthat the Trial Courtcouldnot have arrivedatthe findingsof guilt,having regardto the circumstancethat PW-3 did not actuallywitnessthe prior incidentdeposedabout by him; that evidence was hearsay. Furthermore,submittedlearned counsel, the prosecution versionwas riddledwith suspicion,becauseinthe earhestversionrecorded-at the hospital,on the nightofthe incident,the name ofSadiqewasnot mentioned.Reliancewas, for this purpose, placedon the depositionofPW-11,as well as Ex. PW-11/DA.Itwas submittedthatthe absence of accused's name, in the cnrcumst^ces, ought to have weighed with the Trial Court in concludingthat Sadique was framed in the case.

¶8It was submitted that the articles of clothing allegedly recovered from Sadique, were said to contain blood stains; however the prosecution was unable to connect the said alleged blood stains,to the crime. Learnedcounselcontestedthat the recoverieswere in fact made, and stated thatthe depositionof v^itnesseshavingbeen discardedand not believed,the Trial Court should have considered the cumulative impact of that aspect, along with other fatal infirmities in the prosecutionversion,such as absenceof any detailsof theattack,in the earliestintimationto the police, the sheer improbabiUtyof the alleged motive, non-examinationof Sanjay, and the contradictionin thepolice's version,whichshouldhave impelledthe courtto acquitSadique.For these reasons, the appeal, he submitted, had to succeed. Crl. A. 818/2007 &Crl.A. 264/2011 Page4

¶9On behalf of the State, the learned APP submitted that the Trial Court correctly appreciatedthe evidence,and arrivedat the findingsofguilt,so far as Sadiquewas concerned.It was submittedthatthe Courtdid not placeany relianceon the recoverysoughtto be put forward by the prosecution,mthe context,and chose to rest its conclusionson the ocular evidenceof PW-3, PW-5 and PW-7, whose testhnonieswere clmchingabout the presenceof Sadique, as well as the prominentrole played by him, in the killing of Harender. It was urged that the appellant'sargument about acquittalin the Arms Act case, i.e FIR 55 falsifyingthe present prosecution,is unfounded,becausethatwas an independentcase,basedon allegationsleveledby the prosecution,and did not in any way impmge on the attackby Sadique,on Harender,which was a different incident. It was submitted that the testimony of PW-3 was unshaken, despite cross examination, in its material particulars. Learned APP also submitted that there was no occasion for the court to view his testimony with suspicion merely because the witness was the deceased's brother. It was also urged that PW-7 had accompaniedthe injured Harender, to the hospital,as was evidentfrom the MLC; the earliestversion,ie. the DD entry also corroborated this.

¶10The learned APP argued that PW-5 had deposed that Harender was mercilessly beaten by the appellant Sadique, a fact borne out by the medical evidence. Furthermore, submitted the prosecution,the police had acted swiftly in this matter, since the MLC was recorded within half an hour after the incident, and the police station was notified this within two hours, after taking down the concerned narration of witnesses. In these circumstances, there could have been no scope for the police to cook up a story, and falsely implicate anyone. The learned APP argued that the accused Sadique ought to have explained, once there was clear evidence of his presence, and positive identification, as well as the role played by him, whether he was present, at that place, or somewhere else, or if he had any rebuttal. It was not his case - nor was it suggested to the prosecution witnesses that there was any pre-existing enmity between him and the deceased, which could have supplied the motive for the attack, or that he was provoked into doing something. Having not discharged the onus of explaining his conduct, and not offered any explanation when questioned about the adverse evidence led by the prosecution, under Section 313, Cr. PC, the appellant cannot claim that he was falsely implicated. Crl. A.818/2007 &Crl. A. 264/2011 Page 5

¶11It was next argued that the non-examinationof the witness Sanjay is entirely inconsequential,becausethe prosecutionevidencewas sufficientto establishSadique'sguilt. The learnedAPP arguedthatin this case,the assaulttookplaceat 8:30;the injuredwas removed almostimmediatelyto the hospital;the policewereintimatedaboutthe attack,and apartfromthe MLC, the first informationor nikka was recordedat 10:40 PM. The concernedwitnesseswere unanimousand consistentas to Sadique'srole, and the chain of circumstanceswere so tightly linkedas to form partofonetransaction,all of whichunambiguouslyprovedhis guilt.

¶12As far as the State'sappealwas concerned,itwas submittedthat the learnedTrialJudge erredin givmgundue emphasisto the fact that PW-3 did not disclosethe names and identityof Virenderand Prashant.The learnedAPP submittedhere that the said witnessclearlymentioned in his depositionthat thoughhe recognizedthe said two assailantsby face, and knew them by sight, he did not know thek names. He also mentionedtheir descriptionsto the police. He however,had categoricallymentionedabout the role playedby each ofthem in his deposition. Furthermore,argued the APP, the court ignored the circumstancesthat corroboratedwith the depositionof PW-7,who accompaniedthe mjuredto the hospital,knew aboutthe identityofthe said two assailants,and did mentionthat in his police statement,under Section 161. In these ch-cumstances,the court ought not to have acquittedthem, after concludingthat their presence had not been proved.

¶13The learned APP next argued that in the present case, the acquittal of Virender and Prashantwas notjustified,becausetheirpresenceand role was clearlydeposedto byat leasttwo eyewitnesses,who knew them by face. Tlie police reached the hospital around 9:10 PM and recordedthe statementsof the eyewitnesses,a processwhich went on till 10:20 or so; after that the informationwas sentto the policestation.TheMagistratewasinformedaboutthe incident,at 10:00 AM. Till then, the case registeredwas of attempt to murder; soon thereafter,Harender died. The cumulative effect of these was that there was no room for improvements, or cooking up stories,orfalselyimplicatingthe respondentsVirenderand Prashant.It was lastlyurged that theTrialCourtwronglyconcludedthattherewere no injurieswhichcouldhave been inflictedby the Ustra. The APP, pointedoutthat out ofthe 10 injuriesspokenaboutbythedoctor,he clearly mentioned that six of them were inflicted by a dagger like weapon. Four injuries were such as Crl. A. 818/2007 &Crl.A. 264/2011 Page6 could, from abare readingof the opinion,be said to have been mfhctedthrougha razor like . weapon.

¶14Learnedcounselfor Virenderand Prashantsubmittedthatthere are fatal infirmitiesinthe prosecutionwhich persuadedthe Trial Court to conclude that they were not involved in the crime,and were falselyimplicated.Itwas argued,inthis context,that PW-3 consistentlydid not reveal the identityof these two accused; he claunedto have revealedtheir descriptionto the police. He was allegedly present when they were arrested, to make sure that there was no necessity of a TIP.

¶15Learned counsel submitted that significantly PW-3, in his earliest statement recorded by the police, Ex. PW-3/A nowhere claimed that he knew the two accused Virender and Prashant from before. He did not also mention that he could identify them. It was submitted that according to the prosecutionevidence, PW-7 was aware of the identity and addresses of all the accused. He ' had accompanied the injured, and was in the hospital when Ex. PW-3/A was recorded. If his version about knowledge of identity of these two were indeed correct, he would have disclosed their names to PW-3, which is not the case. It was submitted that the sheer improbability of PW-7 not disclosing to PW-3 about the true identities of the two accused, is apparent, and was given due weightage by the Trial Court. Learned counsel also submitted that the so-called supplementary statement of Chandveer, recorded on 08.02.2000, when he disclosed the names of the said accused, reinforced the fmdings recorded, that the police were making up a case against them. In the circumstances, urged Learned counsel, the court should reject the State's appeal. It was also submitted that having regard to the nature of evidence, the findings of the Trial Court do not warrant interference, on an application of settled principles in consideration of appeals by the High Court in criminal cases. No substantial or compelling grounds exist for upsetting the Trial Court's judgment, which is sound, and well reasoned.

¶16As stated earlier, the incident, was apparently preceded by a small altercation between Sadique and the deceased, when the former was quarrelling with a rickshaw puller; Harender intervened, and saved the rickshaw puller. Allegedly, Sadique got enraged, and threatened Harender. Chandveer Malik, Harender's brother deposed about this previous incident, and stated that he had gone to fetch some medicine; while returning, he saw Harender being attacked by three boys, whom he knew. One, Sadique,he knew by name; the others he claimed to know by Crl. A. 818/2007 &Crl. A. 264/2011 Page 7 face. Accordingto him, Sadiquegave aknife blowto Harender;anotherassailanthad an Ustra with him, and attackedthe deceasedwith it; third boy allegedlyheld the deceasedHarenderby the waist. He raised an alarm, upon which the three assailantsfled the spot. He claims to have takenHarenderto the ESI hospital,BasaiDaraPuraalongwithPW-7 Rajiv,and one Sanjay.He claimed that Prashantheld Harenderby the waist, and Virender was wielding the Ustra. He recordedhis statement,Ex. PW-3/Aby the Police. In his deposition(as PW-3) he claimedthat the samplebloodwas lifted by memo Ex. PW-3/B.

¶17PW-3 claims having gone to the Police Station on 09.02.2000 when he became aware about the arrest of some people in connectionwith the crime; he then found Sadique in police custody. Sadique,it is claimed,took the pohce party to the place of occurrenceand pointed it out amongst the bushes near the Karam Pura Nala from where the knife was recovered through memo Ex.PW-3/E. It is stated that Sadique claimed to be in a position to get the other accused arrested. PW-2 also mentioned about a disclosure statement by Virender and the recovery of an ustra from the bushes of SBM Park through memo Ex.PW-3/F. The witness identified the dagger Ex.P-1 and the usfra Ex.P-2. Since PW-3 omitted to depose ftilly about his previous statement, with permission, he was cross examined by the prosecution, when he admitted that his statement was recorded twice and reiterated knowing Virender and Prashant by face though not by name. He identified the sketch of the ustra Ex.P-2 which was prepared in his presence and proved it as Ex.PW-2/E. He sought to prove Prashant's disclosure statement and recovery of his clothes through Ex.PW-2/B as well as the memos recording the alleged places pointed out by Prashant and Virender Ex.PW-3/J and Ex.PW-3/K which contained his signatures. He fiirther stated that Sadique's pant and Virender's jersey with blood stains were taken into possession by the police and also at Prashant's instance one pair of shoes and a light cream colour trouser with bloodstainswere takeninto possession. Theywereprovedas Ex.PW-3and P-4. Thejerseywas marked as Ex.P-5. He mentioned in the cross examination that the place of occurrence was at a distance of 250 meter from a medical store which in turn was about a half kilometers from his house. He stated about having seen the incident from the distance of about 15-20 feet. He was extensively cross examined on certain details like the registration of the car in which he went along with the victim to the hospital, clothes worn by Rajiv and other person. The distance betweenthe place of occurrence and the hospital was about 4 kilometers; he further deposed that about five pohcemen were in the hospital and further that he was not aware about the exact Crl. A. 818/2007 &Crl. A. 264/2011 Page 8 >6 number since he had gone to make aphone call. He further stated about having gone to the PoliceStationthe same day at 10:30PM and havingknownSadiqueBaigfor about8years.

¶18PW-3 deposedthat on 09.02.2000when he went to the Police Stationhe came to know that some people had been arrestedin connectionwith the crime; he was unable to recollectat whattimetheknifewas recoveredatthebehestof Sadique. Hereiteratedabouthavingraisedan alarm along with Rajeev, PW-7 and that some others from nearby houses had also sought to intervene. He claimedhavingtaken his brotheron the lap and having not allowedhim to fall down. It is furtherstatedthat PW-3 had mentionedaboutthe physicalcharacteristicsof the other two accused to the I.O. He acknowledgedhaving not named Sadique to the doctor who immediatelyattendedHarenderbut havingmentionedit to the DutyConstableat theHospital. It is stated that PW-3 and Rajeev had reached the spot simultaneously.PW-7, however, did not identifyor mentionthe names of Prashantand Virenderto him.

¶19PW-7 corroboratedthe depositionsof PW-3 and further stated that his residencewas 50 feet away from the place of occurrence;he knew the parentageand correct addresses of the accusedpersonsat that point of time. He deposedhavmg disclosedthe name andparentageand residential addresses of three accused to the police about one hour after the incident. He denied the suggestion that the street lights of the area had been disconnected at the relevant time. The public light was situated above the place of occurrence and was surrounded by other residential buildings. He claimed having reached the place of occurrence within few seconds and also about the injured crying bachao-bachao at that time. He deposed that the accused ran away somewhere towards the Karam Pura area. He stated that the injured was held by one person from the back; the deceased's face was towards the person stabbing him. PW-7 knew PW-3 as the deceased's brother but his attention was not fixed at him during the time of the attack. He denied the suggestion that PW-3 was not present or that both of them did not try to save the injured. He stated that the injured was bleeding and that even his clothes were stained by the deceased's blood. He also supported PW-3's version about being present in the hospital and further stated that he did not tell about the assailants to him. He did not remember whether he had informed the pohce with regard to PW-3 Chandveer. After reaching the hospital, the police enquired about the incident from him. He also stated that no police official had recorded his statement on the day of occurrence in the hospital and that he was called for a statement only once thereafter. This witness was cross examined about the presence of other witnesses in the area, the colour of Crl. A.818/2007 & Crl. A. 264/2011 Page 9 the car in whichthe injuredwas removedto the hospital,names and identityof his neighbours etc.

¶20PW-11 ConstableKaramveerdeposed having entered D.D. No.34B dated 06.02.02; it was marked as PW-l/DA, lodged at the instanceof PW-7 Rajeev who had accompaniedthe injured. He also deposedthat the informantwas not asked how the injurieswere receivedas it had to be done by the I.O. PW-12 ConstableDesraj deposedthat upon receiptof DD-34B,he along with S.I. MahenderSingh reachedthe hospitalwhere the I.O. obtainedthe M.L.C. and recordedthat he was unfitto make statement. He deposedthat PW-3's statementwas recorded by the I.O. uponwhichthe lattermade an endorsementwhichwas carriedby him (PW-12)to the PoliceStationto get the case registered,afterthe seizureofthe bloodstainedearth,earthcontrol was made throughmemo Ex.PW-3/A. It is statedthat he along with I.O. went to the place of occurrence;though severalpersonswere present,none made any statement. He statedthat the policewere presentatthe spot for investigationtill about 12-12:30AM. PW-21 supportedthe y-versionof otherpolice witnessesand corroboratedthe testimonyof PW-3 and the recordingof Ex.PW-3/A.

¶21Ex.PW-3/A is a statement of PW-3. It mentions that the tune of the incident was about 8:30 PM. The recordingof the statementis shown to have been made at 10:20 PM. The D.D. No.34B has been marked as PW-11/DA. This too is on the date of the attack. The MLC Ex.PW-1/A records that the deceased was taken to the hospital at 8:45 PM and the Constable who was present at that time was Karamvir. Post Mortem Report has been produced as Ex.PW6/A. Accordingto the MLC, there were 6 injuries on the person of the deceased;the post mortem mentions about 10 wounds. The cause of death, according to the opinion in the post mortem is cumulativeeffectof asphxia resultingfrom aspirationof blood and blood clots and severedegree of internal hemorrhagic shock, continuous bleeding occurring from part of left side of thyroid artery and triggered down collected in stomach and then moving upward specifically in an trachea which was sufficient to cause death in the ordinary course of nature. The death was caused by a sharp edged weapon. It is evident that a cumulative reading of the evidence particularlythe testimony of PW-3 and PW-7 cleaiiy identified the presence and role of the appellantSadique. As pointed out by the respondent-State, in this case the Trial Courtdid not place reliance, while recording Sadique's conviction - on the recovery of the knife. Therefore that is not a factor which can be legitimately taken into account. So far as the contention that Crl. A.818/2007 &Crl. A. 264/2011 Page 10 •V PW-3 is an interestedwitnesswhosetestunonyshouldnot be reliedupon is concerned,it has not been shown by Sadique as to how this statement is unworthy of credence. Secondly, the materialson recorddisclosedthatit is not the lone testimonyofPW-3 but also the depositionsof PW-7 which was reliedupon by the Trial Court. In this context,the furtherargumentthat the prosecutiondid not examine one Sanjay who was supposed to have been present thereby implyinganotherinfirmityin the findingsis unmerited. Ifthe appellantwas ofthe opinionthat Sanjayhad some positivemformation,to impartsome assistanceto him, he could have placed relianceon him by taking steps to summonhim or at least askedthe Courtto examinehim as a Courtwitness. Furthermore,the prosecution'scase has to rest on the evidenceled by it. Itis the credibilityand veracityofthe witnesseswho deposedbeforethe Court which is tested and not the hypothesisofa defenceor any otherversionthat couldpossiblyhave been exploredby the prosecution. In this case,the cumulativeeffectofdepositionsofPW-3 and PW-7 is that Sadique was present and had attackedthe deceased Harenderwith a knife. Despite a detailed cross examinationof boththese witnesses,this core part of then* testunonieshas remamedunshaken. In the very first statementEx.PW-3/Arecorded by the police, Sadique'sname finds a clear mention. This was later sent along with the rukka at 10:40 PM, the same evening. Having regardto the proximityin pointoftime to the incidentand the cham ofcircumstances,i.e., the mcident(which occurredat 8:30 PM); shiftingof the injuredto the hospital(8:45 PM), police recording the statement (10:20 PM), and forwardmg of the mtimationto the Police Station (10:45 PM), possibilityof falsely introducingor accusing someone is next to none. The deceasedhad receivedas many as six severeinjuries-recordedm the MLC. PW-7testifiedthat he was bleedingprofusely. Although, at the time he reached the hospital,the deceasedwas conscious, later apparently his statement could not be recorded. Both PW-7 and PW-3 corroborateeach other about an attack by Sadique. Their depositionsare identicaleven to the extent that PW-7 stated about the presence of PW-3.

¶22As far motive is concerned, there is some merit in the submission that PW-3's testunony with regard the previousmcidentmay not be the sole basis for concludingthat Sadiquehad a motive. However, the Court cannot be unmmdful that motive assumes importance where eye witness' testimony needs corroboration or where the prosecution is based entirely on circumstantial evidence. In a clear case based on eye witness testimony, the Court based on to test the credibilityof the witness to see if their versionsare unshakenor are improbableor not Crl. A. 818/2007 &Crl. A. 264/2011 Page11 V believablefor any reason. On this aspect,the SupremeCourthad, in Rajesh GovindJageshav. StateofMaharashtra,(1999)8SCC 428,heldthat: "ThisCourtin GurcharanSinghv. StateofPunjab^heldthat: "Butithas repeatedlybeenpointedout by this Courtthatwhere thepositiveevidence against the accused is clear, cogent and reliable, the question of motive is of no importance." Again in Datar Singh v. State ofPunjabithis Court reiteratedthat mere absenceofa strongmotivefor committingthe crime cannotbe ofany assistanceto the accusedifthe offence could be proved by evidence. Where the direct evidence regarding the commissionofoffenceisworthyofcredenceandcan be believed,the questionofmotive becomes, more or less, academic. "Motive" may be relevant in a case based upon circumstantial evidence only, being one ofthe circumstances.

¶23In this case, the testimonyof PW-3 & PW-7 as regards the essentialparticularsi.e., nature of attack, identity of accused Sadiq and the weapon used bemg unshaken, the mere circumstance,that PW-3 happensto be the victun's brotherby itself would not lead the courtto . suspectthe depositionsunlesssomethingis broughtout inthecross examination. It has not been suggestedm this case that PW-3 or forthatmatterthevictimhad any previoushistoryof enmity or ill will against Sadique. In the circumstances,the role of Sadique as an aggressorstands established. So far as the other arguments are concerned, the court is of the opinion that minor discrepanciesconnectedwith the disclosureor seizureof some articles which ultimatelydo not result in falsifying the prosecution, ought not to cloud the court's scrutiny into the facts if the testimonyof the eye witness are firm. If the discrepancies,on the other hand, are so fundamental or their cumulative effect is such that what appears to the court is a cooked up story on the part of the prosecution, the findings cannot result in an accused's conviction. The standard to be appliedhere, felicitouslyexpressedby the Supreme Court m State of Punjab v. Wassan Singh 1981 (2) SCC 1 is of "manifestly untenable". It was again remarked in State of Rajasthan v. Kalki, (1981) 2 SCC 752 that: "discrepanciesare due to normal errors ofobservation,normal errors ofmemorydue to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected ofa normal person. " In this case, however, the discrepancies sought to be highhghted are not of that nature or character. For these reasons, the conviction recorded by the Trial Court in respect of the appellant Sadique and the sentence imposed cannot be faulted. Crl.A. 818/2007 &Crl. A. 264/2011 Page 12

¶24Turning now. to the State's Appeal against acquittal of Virender and Prashant, the impugnedjudgmentdisclosesthatthe TrialCourtpremisedits conclusionson the reasoningthat therewas no evidenceto suggestthatthe Ustrahad beenused. The impugnedjudgment,for this purpose, reUes on the testimony of PW-6, Dr. L.C. Gupta. ITie court also disbelievedthe. prosecutionversionregardingrecoveryof the Ustra. As far as the rest of the conclusionsare concerned,the TrialCourtwas influencedby the circumstancethateventhoughPW-3 and PW-7 were together,when the deceasedwas removed to the hospital,the former was not informed about the true identityand names of the two respondents,Virenderand Prashant.It was also noticedthattherecoveryoftheUstrahadnotbeenestabhshed.

¶25So far as the injuries are concerned,during hearing, the learned APP sought to place relianceon the Post Mortemreport, suggestingthat there were 10 injurieson the personofthe deceased,ofwhichat leasttwo couldhavebeencausedby an Ustra.It was submittedthatdespite questioning,the witnessPW-6 did not denythatsuchinjuriescouldhave beeninflictedwiththat V" kind ofweapon. The depositionofPW-6, in the opinionofthe court, nowhereleads to such a conclusion.All that the witness said was that the injurywas caused by a sharp weapon. If the prosecutionwanted a cleareropinion,it could have sought leave ofthe court to cross examine him, aboutthe possibilityofthe Ustrabeingused, orcouldhave soughtsucha clarificationinre-examination.No such course was adopted. In the circumstances,the depositionof the witness cannotbe said to be unambiguousabout the use of Ustra; the use of dagger, on the otherhand, was clearly spoken of by PW-6.

¶26The Trial Court was of the opinionthat in the normal course, when PW-3's statementwas recorded, it would have been natural to seek PW-7's assistance in disclosure of identity of Virender and Prashant. There was all the more reason for this, since both these witnesses had takentheinjuredto the hospital,in a criticalcondition.Furthermore,an aspectwhich cannotbe lost sight of is that in the first version,as well as in the first statementrecordedby PW-3, the identityof these two accusedis not revealed.However,the same witnessclaimedthe very next day thathe knew their identities,and revealedit. The Trial Court concludedthat all these were improbable. What influenced it most was that since both PW-3 and PW-? were together, particularlywhen the formerreportedthe matterto the police,in the hospital,it was contraryto the normal course of human conduct to withhold the identity and names of the said two accused. Crl. A. 818/2007 &Crl. A. 264/2011 Page 13 \ r

¶27The correctapproachto be adoptedby aHigh Courtwhile dealingwith States' appeals against acquittals,has been the subjectmatterof severaljudicial.The law was summarizedby the SupremeCourt,in RajNarainSinghv. StateofU.P.,(2-009)10 SCC 362,thus: "The same view has been reiteratedby this Court in GhureyLai v. State ofU.P.^,SCC at p. 477, in which one of us (Hon'ble Dalveer Bhandari,J) after discussinga number of authoritieson this issuesummarisedthe lawasfollows: (SCCpara 69) "69. Thefollowingprinciplesemergefrom the casesabove:

¶1The appellatecourt may review the evidence in appeals againstacquittalunder Sections 378 and 386 of the CriminalProcedure Code, 1973. Its power of reviewing evidenceis wide and the appellatecourtcan reappreciatethe entireevidenceon record. It can review the trial court's conclusionwithrespect to bothfacts and law.

¶2The accusedispresumedinnocentuntilprovenguilty. The accusedpossessedthis presumptionwhen he was before the trial court. The trial court's acquittalbolstersthe presumption that he is innocent.

¶3Due orproper weightand considerationmustbegiven to the trial court's decision. This is especiallytrue when a witness'credibilityis at issue. It is not enoughfor the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. "

¶28In this case, we are not persuaded to take a view different from the one recorded by the Trial Court in the impugned judgment, so far as the acquittal of Virender and Prashant are concerned.

¶29For the above reasons, both appeals have to fail. Crl. Appeal Nos. 818/2007 and 264/2011 are dismissed. MARCH 10,2011 Li-J S. RAVINDRA BHAT, J ^ G. P. MITTAL, J Crl. A.818/2007 & Crl. A. 264/2011 Page 14