# STATE OF MAHARASHTRA v. AHMED SHAIKH BABAJAN & ORS

- **Citation:** [2008] 14 S.C.R. 1184
- **Court:** Supreme Court of India
- **Decided:** 2008-10-24
- **Case number:** Criminal Appeal Nos. 25-29 of 2002
- **Bench:** C.K. Thakker, D.K. Jain
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-ahmed-shaikh-babajan-ors-23692
- **Pages:** 23

## Headnote

Penal Code, 1860; S. 302 rlw s. 34; S. 456 rlw s. 109 and
s. 460:
c
House breaking by night - Murder of son of tenant a/legedly by landlord and others - Trial Court acquitting accused
A1 to A3 of the offences uls.302 rlw s.34 /PC, convicted accused A4 and A5 for committing offence u/s.460 and A 1 to A3
for committing offences punishable u/s. 456 rlw s. 109 as well.
D Acquittal of all accused persons by High Court- Correctness
of - Held: Correct - Sole independent witness did not support
the prosecution version - His testimony casts serious doubt
on the presence of PW1 at the time and place of occurrence -
Hence, Courts below rightly acquitted accused persons of comE mitting the offence punishable under Section 302 rlw s.34/PC
- PW1 failed to mention in FIR a very important fact regarding occupation of the premises forcibly by accused persons -
In such circumstances, High Court rightly acquitted accused
A 1 to A3 of committing offence punishable uls. 456 rlw s. 109
F
/PC - Hence, impugned judgment does not suffer from any
illegality warranting interference - Testimony of relative eye
witnesses - Reliance upon.
Constitution of India, 1950; Article 136 - Power under,
invoking of - Held: Could be invoked in very exceptional cirG cumstances when approach of.lower Courts vitiated by some
manifest illegality.
'
Code of Criminal Procedure, 1973; s. 154:
~
FIR - Evidentiary value - Discussed.
H
1184
STATE OF MAHARASHTRA v. AHMED SHAIKH
1185
BABAJAN & ORS.
Accused A1, owner of a flat, inducted PW6 as a lieA
ensee in terms of an- agreement of leave and license for a
period of nine months executed between them. PW6 resided in the premises along with her husband PW4,
daughter PWS, her 3 sons including the deceased af'.ld
PW1. It is alleged that about two weeks prior to the date
I
B
of the incident accused persons A1, A2 and A3 asked PW4
~
to deliver vacant possession of the flat. PW4 requested
for permission to stay for a few more days. However, A1
turned down the request and threatened him to take the
possession forcibly if he failed to deliver the possession c
by certain due date. While the deceased was standing i'n
front of the shop of accused A-3 waiting for his mother
and sister who have been returning back from Hyderabad,
accused A-1 and accused A-3 came there and started
beating him. The incident was witnessed by PW-1, brother D
"'
of the deceased, who rushed to save his brother. PW-2, a
police constable and a family friend of the victim, who wa~
present at the spot apprehend the two accused persons.
PW-1 and PW2 took the deceased to a hospital, where he
was declared brought dead. When PW-1 came back to
E
the flat, he found that the same had been occupied by
two ladies, A-4 and A-5. He found his father in a garden
and informed him about the incident and then lodged an
FIR. When PW 5 and PWG returned from Hyderabad, they
--1
also found accused A4 and AS in their flat and they alleg•
edly threw their luggage outside the flat. Police took them
F
to the Police Station and recorded their statement. After
completion of the investigation, Police submitted charge.
sheet against all the accused persons for committing the
offences punishable u/s.460 IPC. Additionally, accused,
persons A1 to A3 were also charged u/s.302 r/w s.34 IPC G
.,.
1
for committing the murder of the deceased. Trial Court
\
acquitted accused A1 to A3 of the offences u/s.302 r/w
..
s.34 IPC, however, relying on the testimony of PWS and
.,\.
PW6, convicted accused A4 and AS for committing offence u/s.456 IPC and accused A1 to A3 for committing H
1186
SUPREME COURT REPORT$
(2008] 14 S.C.R.
f
,_
A offences under s.456 r/ws.109 IPC and sentenced them
to undergo rigorous imprisonment for a term of 2 years.
On appeal, the High Court, while affirming the acquittal of
the accused, set aside the conviction of the ·accused persons for committing the -offences punishable u/s.456 r/w
B
s.109 IPC. Hence the present appeals.
Djsmissing the appeals, the Court
HELD: 1.1 It is the establ

## Text

_Characters 0–39,803 of 45,304. This is a partial read: ask again with offset=39803 for what follows._

[2008] 14 S.C.R. 1184
A
STATE OF MAHARASHTRA
v.
AHMED SHAIKH BABAJAN & ORS.
(Criminal Appeal Nos. 25-29 of 2002)
OCTOBER 24, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
Penal Code, 1860; S. 302 rlw s. 34; S. 456 rlw s. 109 and
s. 460:
c
House breaking by night - Murder of son of tenant a/legedly by landlord and others - Trial Court acquitting accused
A1 to A3 of the offences uls.302 rlw s.34 /PC, convicted accused A4 and A5 for committing offence u/s.460 and A 1 to A3
for committing offences punishable u/s. 456 rlw s. 109 as well.
D Acquittal of all accused persons by High Court- Correctness
of - Held: Correct - Sole independent witness did not support
the prosecution version - His testimony casts serious doubt
on the presence of PW1 at the time and place of occurrence -
Hence, Courts below rightly acquitted accused persons of comE mitting the offence punishable under Section 302 rlw s.34/PC
- PW1 failed to mention in FIR a very important fact regarding occupation of the premises forcibly by accused persons -
In such circumstances, High Court rightly acquitted accused
A 1 to A3 of committing offence punishable uls. 456 rlw s. 109
F
/PC - Hence, impugned judgment does not suffer from any
illegality warranting interference - Testimony of relative eye
witnesses - Reliance upon.
Constitution of India, 1950; Article 136 - Power under,
invoking of - Held: Could be invoked in very exceptional cirG cumstances when approach of.lower Courts vitiated by some
manifest illegality.
'
Code of Criminal Procedure, 1973; s. 154:
~
FIR - Evidentiary value - Discussed.
H
1184
STATE OF MAHARASHTRA v. AHMED SHAIKH
1185
BABAJAN & ORS.
Accused A1, owner of a flat, inducted PW6 as a lieA
ensee in terms of an- agreement of leave and license for a
period of nine months executed between them. PW6 resided in the premises along with her husband PW4,
daughter PWS, her 3 sons including the deceased af'.ld
PW1. It is alleged that about two weeks prior to the date
I
B
of the incident accused persons A1, A2 and A3 asked PW4
~
to deliver vacant possession of the flat. PW4 requested
for permission to stay for a few more days. However, A1
turned down the request and threatened him to take the
possession forcibly if he failed to deliver the possession c
by certain due date. While the deceased was standing i'n
front of the shop of accused A-3 waiting for his mother
and sister who have been returning back from Hyderabad,
accused A-1 and accused A-3 came there and started
beating him. The incident was witnessed by PW-1, brother D
"'
of the deceased, who rushed to save his brother. PW-2, a
police constable and a family friend of the victim, who wa~
present at the spot apprehend the two accused persons.
PW-1 and PW2 took the deceased to a hospital, where he
was declared brought dead. When PW-1 came back to
E
the flat, he found that the same had been occupied by
two ladies, A-4 and A-5. He found his father in a garden
and informed him about the incident and then lodged an
FIR. When PW 5 and PWG returned from Hyderabad, they
--1
also found accused A4 and AS in their flat and they alleg•
edly threw their luggage outside the flat. Police took them
F
to the Police Station and recorded their statement. After
completion of the investigation, Police submitted charge.
sheet against all the accused persons for committing the
offences punishable u/s.460 IPC. Additionally, accused,
persons A1 to A3 were also charged u/s.302 r/w s.34 IPC G
.,.
1
for committing the murder of the deceased. Trial Court
\
acquitted accused A1 to A3 of the offences u/s.302 r/w
..
s.34 IPC, however, relying on the testimony of PWS and
.,\.
PW6, convicted accused A4 and AS for committing offence u/s.456 IPC and accused A1 to A3 for committing H
1186
SUPREME COURT REPORT$
(2008] 14 S.C.R.
f
,_
A offences under s.456 r/ws.109 IPC and sentenced them
to undergo rigorous imprisonment for a term of 2 years.
On appeal, the High Court, while affirming the acquittal of
the accused, set aside the conviction of the ·accused persons for committing the -offences punishable u/s.456 r/w
B
s.109 IPC. Hence the present appeals.
Djsmissing the appeals, the Court
HELD: 1.1 It is the established practice of this Court
that power under Article 136 of the Constitution is invoked
c in very exceptional circumstances, when the approach
of the lower courts is vitiated by some manifest illegality
or the conclusion recorded is such which could not have
been possibly arrived at by any Court acting reasonably
and judiciously. Nevertheless, even within the restrictions
imposed, this Court has undoubted power to interfere
D even with findings of fact, making no distinction between
a judgment of acquittal and convic:tion, though in a case
of acquittal ordinarily the Court does not interfere with
the appreciation of evidence or of findings of fact, more
so because the presumption of innocence of the accused
E is further reinforced by his acquittal, unless the High Court
"acts perversely or otherwise improperly". (Para - 12}
(1197-8, C, D}
The State of Madras vs. A. Vaidyanatha Iyer (1979} 2
SCC 297; Himachal Pradesh Administration Vs. Shri Om
F Prakash (1972} 1 SCC 249 and Arunachalam vs. P. S. R.
I"-
Sadhanantham & Anr. (1979) 2 SCC 297 - relied on.
1.2 In so far as the first part of the incident, viz., assault on the deceased is concerned, the prosecution examined only PW-1 and PW-2, as eye witnesses to the inG cident. PW-2, the sole independent witness did n_ot support the prosecution version,· in as much as he dla not
tl-
, claim to have seen the occurrence in which the deceased
I
was assaulted. In fact, in his deposition he stated that he
.
;•
came soon after the assault and PW-1 came even later.
H Thus, his testimony casts serious doubt on the presence
STATE OF MAHARASHTRA v. AHMED SHAIKH
1187
BABAJAN & ORS.
of PW-1 at the spot at the time of occurrence. The Trial A
Court as well as the High Court have noticed many inconsistencies in the evidence of PW-1 and PW-2. It has
also been observed that no member of the crowd which
had gathered there, have been examined by the prosecution. Having regard to the evidence on record, this 6
Court does not find any ground to interfere with the con-
).
current findings recorded by both the Courts below in
reaching the conclusion that a case for conviction of the
respondents under Section 302/34 l.P.C. is not made out.
Also, in view of the evidence on record, it cannot be accepted that an offence under Section 304 Part-I l.P.C. is C
made out against accused A-1 to A-3. (Para - 15) (1199-C,
D, E, F)
Chandrappa & Ors. Vs. State of Kamataka (2007) 4 SCC
415 - relied on.
D
2.1 The first and the foremost circumstance, which
has weighed with the High Court for acquittal of all the
accused for offence under Section 456 l.P.C. is that although the FIR was lodged by PW-1 more than three hours
after the occurrence and after due discussion with his E
father (PW-4), yet the factum of forcible occupation of the
flat by accused A-4 and A-5 did not find mention in the
FIR. The High Court has observed that having admittedly
met his mother (PW-6), father (PW-4) and brother in the
Hospital and lodged the FIR thereafter, it was difficult to
believe that if PW-1 had seen accused A-4 and A-5 occuF
pying the flat possessed by his family, this fact would not
have been mentioned in the FIR. (Para - 17) (1200-8, C,
D)
2.2 Recording of a First Information Report is not a
condition precedent to the setting in motion of the crimiG
nal investigation yet from the view point of the investigating authorities it conveys to them earliest information regarding the circumstances in which the crime was committed; the names of the culprits and the role played by
them as well as the names of the witnesses present at H
1188
SUPREME COURT REPORTS
[2008) 14 S.C.R.
A
the scene of occurrence, so vital for effective and meaningful investigation. (Para - 18) (1200-F, G)
Sheikh Hasib alias Tabarak vs. The State of Bihar (1972)
4 sec 773 - relied on.
8
Emperor vs. Khwaja Nazir Ahmad A.l.R. (32) 1945 Privy
Council 18 - referred to.
2.3 Though, it is not the requirement of law that every minute detail of the occurrence needs to be recorded
in the First Information Report. Nevertheless, having rec gard to the fact that 'it is one of the modes by which a
person aggrieved sets the criminal law in motion, it must
disclose the commission of an offence. Though it is trite
that the First Information Report does not constitute substantive evidence and can, strictly speaking, be only used
as a previous statement for the purpose of either corroboD rating or contradicting its maker, yet omission of material facts pertaining to the crime is undoubtedly relevant
in judging the veracity of prosecution case. (Para - 19)
(1201-E to H)
E
State of A.P. Vs. Golconda Linga Swamy & Anr. (2004) 6
sec 522 - relied on.
2.4 In the present case, admittedly in the First Information Report lodged by PW-1, a law student, more than
three hours after the alleged occurrence, there was no
'f
F
complaint of house breaking and occupation of the flat
~
by accused A-4 and A-5 when he claims to have met them
at the flat and had an altercation. In his cross-examination also, he stated that when statement of his father was
recorded two days after the occurrence, even then he did
not disclose the fact that accused A-4 and A-5 had broG ken open their flat and had occupied it with a kid. It is,
thus, manifest that the informant (PW-1) was not able to
r
give any reasonable explanation for the significant omission on his part. Hence, the evidence of PW-1 is tainted
with certain embellishments. (Paras - 20 & 21) (1202-A,
H B; E, G)
STATE OF MAHARASHTRA v. AHMED SHAIKH
1189
BABAJAN & ORS.
2.5 Even in the evidence of PW-4, the father of the A
deceased and PW-1, there is not even a whisper about
the forcible occupation of their flat by accused A-4 and A5 although admittedly even before lodging the FIR, PW-1,
his father and his mother (PW-6) had already met. It is difficult to believe that their flat having been allegedly broB
ken open and occupied by accused A-4 and A-5, it was
an insignificant fact worthy of discussion amongst the
family members. (Para - 22) (1202-H; 1203-A, B)
2.6 PW-3, a neighbour, who was examined by the
prosecution to prove that the accused had borrowed a C
hammer and screw-driver used by them for breaking open
the latch of the flat, but it did not support the prosecution
version. Besides, as also noted by the High Court that
although as per the prosecution version accused A-4 and
A-5, on the asking of the police constable, who had visD
ited the flat, had accompanied him to the police station,
this fact was not proved by examining the constable con-
. cerned. All these circumstances, in the judgment, not
only take the bottom off the prosecution story, they are
sufficient to throw considerable doubt on its truthfulness E
and the veracity of evidence of PW-1-an eye witness
complainant and knowing accused A-4 and A-5, rendering it unsafe to base the conviction of the accused upon
it. (Para - 22) (1203-B, C, D)
2.7 Under these circumstances, the High Court was
F
fully justified in holding that the omission to mention the
fact regarding the occupation of flat by accused A-4 and
A-5 in the First Information Report, was a very important
circumstance, fatal to the case of the prosecution. (Para
- 23) (1203-E)
G
3.1 Having considered the evidence of PW-5 and PW6 in the light of the legal position enunciated by this Court
in the under-mentioned decisions and bearing in mind
the fact that PW-3, who was examined by the prosecuH
1190
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
tion to prove the vital fact that accused A-4 and A-5 had +
borrowed the hammer and screw driver from her, being a
neighbour of the complainant has not supported the version of the prosecution, the testimony of the said two witnesses cannot be said to be intrinsically credible. Mores over, having regard to the fact that neither in the FIR nor
in the statement of PW-1, recorded two days after the occurrence, he had stated the fact of house breaking, it will
be hazardous to rely solely on the uncorroborated evidence of PW-5 and PW-6 to convict the accused under
C Section 456 l.P.C. Evidently, having lost their son/brother,
allegedly on account of beating by accused A-1 to A-3,
there was every reason for them to be inimical to the accused. They were keen to see that all of them were convicted. (Para - 28) (1206-B to E)
D
Hari Obula Reddy & Ors. vs. The State of Andhra
Pradesh (1981) 3 SCC 675; Ashok Kumar Chaudhary & Ors.
,,,
vs: State of Bihar (AIR (2008) SC 2436; Oalip Singh vs. State
of Punjab (1954) 1 SCR 145; Masalti vs. State of UP (1964)
8 SCR 133; Rizan & Ani. vs. State of Chhattisgarh through
E
The Chief Secretary, Govt. of Chhattisgarh, Raipur,
.• -
Chhattisgarh (2003) 2 SCC 661 and Namdeo vs. State of
Maharashtra (2007) AIR SCW 1835 - referred to.
3.2 The view of the High Court in discarding the evidence of PW-5 and PW-6, does not suffer from any infirF
mity. In that view of the matter and in the absence of any
other evidence on the issue, the order of the High Court
acquitting all the accused of the offence under Section
456 l.P.C. does not suffer from any illegality warranting
interference. (Para"- 29) (1206-F)
G
CASE LAW REFERENCE
( 1979) 2 SCC 297
Relied on
Para - 12
(1972) 1 SCC 249
Relied on
Para - 12
H
(1979) 2 sec 297
Relied on
Para - 13
t-
STATE OF MAHARASHTRA v. AHMED SHAIKH
1191
BABAJAN & ORS.
1
(2007) 4 sec 415
Relied on
Para-14 A
A.l.R. (32) 1945 Privy Council 18 Referred to Para -18
(1972) 4 sec 773
Relied on
Para-18
(2004) s sec 522
Relied on
Para-19
(1981) 3 sec 675
Referred to Para - 25 B
(AIR (2008) SC 2436
Referred to Para - 26
(1954) 1 SCR 145
Referred to Para - 26
(1964) 8 SCR 133
Referred to Para - 26
(2003) 2 sec 661
Referred to Para - 26 c
(2001) AIR sew 1835
Referred to Para - 27
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
•
Nos. 25-29 of 2002
D
From the final Judgment and Order dated 9.4.2001 of the
High Court of Judicature at Bombay in Ciminal Appeal No. 381
of 1995, Criminal Revision Application No. 156 of 1995, Crl.
Appeal Nos. 240, 241 & 273 of 1995
Ravindra Keshavrao Adsure for the Appellant.
E
Shakil Ahmad Syed, Syed Ahmed Saud, Faizy Ahmad
Syed and Mohd. Yasir Abbasi for the Respondents and Harjeet
Kaur - Respondent No. 7-in person.
1
The Judgment of the Court was delivered by
F
D.K. JAIN, J.: 1. The State of Maharashtra has preferred
these five appeals, by special leave, against the common judgment and order of the High Court of Judicature at Bombay, in
Criminal Appeals No.240, 241, 273, 381 of 1995 and Criminal
G
Revision No.156 of 1995. By the impugned order the High Court,
~
while allowing all the criminal appeals preferred by the convicts
and dismissing the criminal appeal and criminal revision preferred by the State, has affirmed the order passed by the Additional Sessions Judge dated 251h April, 1995, acquitting responH
1192
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
dents No.1 to 3 herein, of the charge under Section 302 read
t
with Section 34 of the Indian Penal Code, 1860 (for short 'the
l.P.C.') and has set aside the order of the Trial Court convicting
the said respondents for offence under Section 456 read with
Section 109 l.P.C. Conviction of respondents No.4 and 5 for
B
the offence under Section 456 l.P.C. has also been set aside
by the High Court.
2. The backdrop under which the alleged occurrence took
~
place on 27th April, 1989, in brief, is as follows:
c
By an agreement of leave and licence dated 28th July,
1988, Ahmed Shaikh, (accused A-1), the owner of Flat No.H14, 3rd Floor, ZohraAgadi, Vari Road, Versova,Andheri, inducted
Smt. Rani Bhagwant Singh (PW-6), as a licensee of the said
premises. The agreement was for a period of 9 months and
D was to expire on 27th April, 1989. The flat was occupied by PW6 along with her husband Bhagwant Singh (PW-4), her daughter, Harjeet Kaur (PW-5), her son lndrajeet Singh (deceased)
and two other sons, Arvinder Singh (PW-1) and Harvinder Singh
(not examined). Though the agreement was initially for a period
E
of 9 months commencing from 28th July, 1989, it was subject to
Jurther extension and renewal. Advance rent for 9 months was
paid to accused A-1 with one month's rent as security deposit.
3. The said agreement was finalised through an Estate
Agent- Moinuddin Khan (accused A-3), a resident of the same
F
society. About two weeks prior to the date of incident, accused
~·
A-1, his estate agent (accused A-3) and one Usmangani Shaikh
(accused A-2), approached Bhagwant Singh Anand (PW-4)
asking him to deliver vacant possession of the flat on the expiry
of the said leave and licence agreement. Thereafter on 24th,
G
25th and 26th April, 1989, they again met Bhagwant Singh Anand
and insisted on the delivery of vacant possession of the flat by
2Th April, 1989. It will be of some relevance to note that
rUsmangani Shaikh (accused A-2) is the brother of Asmabi (accused A-4), wife of accused A-1 and Rahimabi, (accused A-5)
H
is the sister of accused A-1. PW-4 requested for permission to
·,
STATE OF MAHARASHTRA v. AHMED SHAIKH
1193
BABAJAN & ORS. [D.K. JAIN, J]
"'/·
stay in the flat for a few more days as his children, including the A
complainant (PW-1 ), were busy in their annual examination; his
wife, Rani Anand (PW-6) and daughter Harjeet Kaur (PW-5)
were also away to Hyderabad since the latter was appearing
for her final B.A. examination in Osmania University and they
were expected to return back to Bombay on 271h April, 1989.
B
The request was turned down by accused A-1, who insisted
that the possession of the flat must be delivered by 27th April,
~
1989, failing which possession would be taken by force.
4. In this background, very shortly put, the prosecution version was that apprehending that the possession of the flat may C .
not be delivered on the expiry of the licence agreement, accused A-1 decided to take the possession forcibly with the help
of his wife (accused A-4), her brother (accused A-2), his sister
(accused A-5) and the Estate Agent, (accused A-3). On 27th
April, 1989 at about 7.30 p.m., the deceased was standing in D
front of the shop of accused A-3 on the ground floor in the same
society, three buildings away from the building in which the deceased resided, waiting for his mother and sister, who were
scheduled to return from Hyderabad in the evening. He had the
keys of the flat with him. His father (PW-4), who was in the flat till
E
evening later. left the house for bringing food for the family, instructing the deceased to wait on the road. Arvinder Singh (PW1) also left the house at about 7.00 p.m. for paying obeisance
at the Gurudwara. While the deceased lnderjeet Singh was
standing in front of the shop of accused A-3, accused A-1 and
F
t
accused A-3 came near him and started beating, him. The beat~
ing was witnessed by PW-1 who was returning from the
Gurudwara. He rushed to save his brother, who, by that time
had fallen down on the ground and was stifling.
·5. The incident drew attention of the public and the two G
accused were apprehended. One, Sunil Salvi (PW-2), a police
i
constable (off duty) and a family friend of the Anands, also hap- ·
pened to be at the spot and he too accosted the two accused.
He along with PW-1 took the victim to the clinic of one Dr. Asif
Ali (PW-8) situated on the ground floor of the same building in
H .

STATE OF MAHARASHTRA v. AHMED SHAIKH
1195
BABAJAN & ORS. [D.K. JAIN, J]
stated to be the eye-witnesses. No evidence was produced in
A
defence. The learned Additional Sessions Judge, on appreciation of evidence, acquitted accused A-1 to A-3 of the offence
under Section 302 read with Section 34 1.P.C. However, relying
'
on the testimony of PW-5 and PW-6, the Trial Court convicted
accused A-4 and A-5 for offence under Section 456 l.P.C. for B
house breaking by night and accused A 1 to A-3 for offences
under Section 456 read with Section 109 l.P.C. and sentenced
•
each of them to undergo rigorous imprisonment for a term of
two years and pay fine of Rs.5000/- each with default stipulation.
c
9. The High Court, as noticed hereinabove, while affirming the acquittal of A-1 toA-3, has disagreed with the Trial Court
and has set aside the conviction of the respondents for offences
under Section 456 read with Section 109 l.P.C as well. In reversing the judgment, the High Court has relied on the following D
..:
circumstances - (i) though the FIR was lodged by PW-1, three
hours after the occurrence and that too after consulting his father (PW-4) there is not a word in the FIR about the forcible
occupation of the flat in question by accused A-4 and A-5; (ii)
· since accused A-1 and A-2 were admittedly apprehended by
E
the mob soon after the incident in which lndrajeet was assaulted
and they remained in police custody thereafter, there was no
possibility of their abetting the commission of offence by accused A-4 and A-5; (iii) after the male members of the family
had been apprehended and had been taken into custody by
F
~
the police, the two female members of the family would not dare
to forcibly occupy the flat; (iv) if the version of PW-5 is to be
believed, accused A-4 and A-5 were detained by the police
constable, who had taken them to the hospital with PW-6, the
concerned constable was not examined to prove this fact. Hence G
the present appeals.
~
10. Mr. Adsure, learned counsel appearing forthe State
submitted that the High Court committed serious error in passing impugned judgment without taking into consideration the
fact that a day prior to the date of occurrence, accused A-1 to
H
1196
SUPREME COURT REPORTS
[2008] 14 S.C.R.
~
A
A-3 had threatened PW-4 (father of the deceased) of forcible
..
eviction from the flat and assault on the deceased was in fur-
- thera~nce thereof. Learned counsel asserted that insofar as accused A-1 to A-3 are concerned, in addition to commission of
offence under Section 456 read with Section 109 l.P.C., a clear
t
case for their conviction for offence under Section 304 Part-I,
T
B
.1.P.C. is made out. It was argued that the testimony of PW-5
and PW-6, coupled with the fact that there was no cross exami-
••
nation of the said witriesses in regard to the presence of accused A-4 and A-5 in the flat, was sufficient to establish the
c case against the accused. It was also contended that accused
A-4 and A-5 committed the offence in furtherance of instigation
by the male members of the family, namely, accused A-1 to A-3
and, therefore, all of them were rightly convicted for offences
punishable under Section 456 read with Section 109 l.P.C.
D
11. Learned counsel appearing on behalf of respondents
No.1, 2, 4 and 5, on the pther hand, submitted that PW-2_having
.,,
been declared hostile and presence of PW-1 at the time and
place of occurrence having been doubted by both the courts ·
below and in the absence of any other public witness, particuE
larly when accused A-1 and A-2 are alleged to have been apprehended by the mob, the prosecution has failed to prove the
involvement of accused A-1 to A-3 in the incident of assault on
(
the deceased. It was also urged that there is no evidence on
record to prove that any of the accused had forcibly enter:ed in
F
the flat, belonging to accused A-1 and thereby committed house
t
breaking by night so as to attract Section 456 l.P.C. It was also
argued that failure to mention anything about forcible occupaf
tion of the flat in the FIR by PW-1, who claims to have met accused A-4 and A-5, by itself, is fatal to the prosecution case
G against all the accused. Lastly, it was pleaded that accused A4 ahd A-? being ladies and the incident having taken place as
-far back as in the year 1989, a lenient view may be taken against
~
\
them.
12. Before examining the rival stands with reference to
H
the evidence adduced by the prosecution, the scope of our ju-
ST.L\TE OF MAHARASHTRA v. AHMED SHAIKH
1197
BABAJAN & ORS. [D.K. JAIN, J]
risdiction to deal with appeals by special leave against a judgA
ment of acquittal by the High Court needs being noticed. T~ue it
is that Article 136 of the Constitution invests this Court with a
plentitude of plenary appellate power over all courts and tribunals in India but a conspectus of a series of decisions shows
that this Court has set for itself certain limits. within which the
B
power under the said Article is to be exercised. It is the established p~actice of this Court that power under Article 136 is invoked in very exceptional circumstances, when the approach
of the lower courts is vitiated by some manifest illegality or the
conclusion recorded is such which could not have been possiC
bly arrived at by any court acting reasonably and judiciously ..
Nevertheless, even within the restrictions imposed, this Court
has undoubted power to interfere even with findings of fact,
making no distinction between a judgment of acquittal and conviction, though in a case of acquittal ordinarily the Court does
not interfere with the appreciation of evidence or of findings of D
fact, more so because the presumption of innocence of the accused is further reinforced by his acquittal, unless the High Court
"acts perversely or otherwise improperly". (See: The State of
Madras Vs. A. Vaidyanatha lyer1; Himachal Pradesh Administration Vs. Shri Om Prakash 2 ).
E
13. In so far as the jurisdiction of the appellate court in
dealing with an appeal against an order of acquittal is concerned, referring to the aforenoted decisions in Arunachalam
Vs. PS.R. Sadhanantham & Anr 3 , 0. Chinnappa Reddy, J.
F
went on to observe as follows:
"In dealing with an appeal against acquittal, the·Court will,
,
I
naturally, keep in mind the presumption of innocence in
favour of the accused, reinforced, as may be, by the
judgment of acquittal. But, also, the Court will not abjure its G
duty to prevent violent miscarriage of justice by hesitating
to interfere where interference is imperative: Where the
acquittal is bas~d on irrelevant ground, or where the High
Court allows itself to be deflected by red herrings drawn
across the track, or where the evidence accepted by the
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1198
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
trial Court is rejected by the High Court after a perfunctory
~
consideration, or where the baneful approach of the High
Court has resulted in vital and crucial evidence being
ignored, or for any such adequate reason, this Court may
feel obliged to step in to secure the interests of justice, to
B
appease the judicial conscience, as it were."
14. Recently, in Chandrappa & Ors. Vs. State of
Karnataka4 referring to almost the entire law on the point, one
of us (C.K. Thakker, J.) has culled out the following general principles regarding powers of the appellate court while dealing
c with an appeal against an order of acquittal:-
''(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
D
(2)
The Code of Criminal Procedure, 'i 97j puts" no
limitation, restriction or condition on exercise of such
~
power and an appellate court on the evidence before
it may reach its own conclusion, both on questions of
fact and of layv.
E
(3)
Various expressions, such as, "substantial and
"'
compelling reasons" "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail ..
extensive powers of an appellate court in an appeal
F
against acquittal. Such phraseologies are more in
the nature of "flourishes of language" to emphasise
the reluctance bf an appellate court to interfere _with
acquittal than to curtail the power of the court to review
l
the evidence and to come to its own conclusion. ·
G
(4)
An appellate court, however, must bear in mind that
in case of ~quittal, there is double presumption in
~
favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
H
principle of criminal jurisprudence that every person
•.
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,.
STATE OF MAHARASHTRA v. AHMED SHAIKH
1199
BABAJAN & ORS. [D.K. JAIN, J]
shall be presumed to be innocent unless he is proved
A
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5)
If two reasona.ble views are possible on the basis of B
evidence on record and one favourable to the
accused has been taken by the trial court, it oughlt
not to be disturbed by the appellate court."
15. Bearing the afore-noted. principles in mind, we shal1I
C
now examine whether the present case calls for interference.
We may note at the outset that in so far as the first part of the
incident, viz., assault on the deceased is concerned, the pros+
ecution examined only PW-1 and PW-2, as eye witnesses to
the incident. PW-2 (Su nil Salvi), the sole independent witness 0
did not support the prosecution version, in as much as he did
.not claim to have seen the occurrence in which the deceased
was assaulted. In fact, in his deposition he stated that he came
soon after the assault and PW-1 came even later. Thus, his testimony casts serious doubt on the presence of PW-1 at the spot
at the time of occurrence. The Trial Court as well as the High
E
Court have noticed many inconsistencies in the evidence of PW1 and PW-2. It has also been observed that no member of the
crowd which had gathered there, have been examined by the,
prosecution. Having regard to the evidence on record, we do
not find any ground to interfere with the concurrent findings reF
corded by both the Courts below in reaching the conclusion that
a case for conviction of the respondents under Section 302/34
l.P.C. is not made out. In view of the evidence on record, we find
it difficult to accept the alternative contention of learneQ counsel for the State that an offence under Section 304 Part-I l.P.C.
G
is made out against accused A-1 to A-3. Accordingly, we affirm
the decision of the Courts below on the point.
16. However, as regards the offence under Section 456
l.P.C., since the Trial Court, on consideration of evidence be-'
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1200
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
fore it, had convicted all the accused for the said offence and
the High Court has reversed the order of conviction, we propose to delve on this aspect of the matter in a little greater detail.
. 17. As· noted above, the first and the foremost circumB stance, which has weighed with the High Court for acquittal of
all the accused for offence under Section 456 l.P.C. is that although the FIR was lodged by PW-1 more than three hours after the occurrence and after due discussion with his father (PW4 ), yet the factum of forcible occupation of the flat by accused
C · A-4 and A-5 did not find mention in the FIR. The High Court has
observed that having admittedly met his mother (PW-6), father
(PW-4) and brother Harvinder Singh in the Cooper Hospital and
lodged the FIR thereafter, it was difficult to believe that if PW-1
had seen accused A-4 and A-5 occupying the flat possessed
D by his family, this fact would not have been mentioned in the
FIR.According to the High Court, it was not a case of mere
omission, but a case where the very fact constituting the offence was absent from the FIR, the earliest version of the occurrence.
E
F
18. The First Information Report is a report relating to the
commission of an offence, given to the police and recorded by
it under Section 154 of the Code of Criminal Procedure, 1973
(for short the "Cr.PC"). Though, as observed by the Privy Council in Emperor Vs. Khwaja Nazir Ahmad5 , recording' of a First
Information Report is not a condition precedent to the setting in
motion of the criminal investigation yet from the view point of
-tQ.e investigating authorities it conveys to them earliest information regarding the circumstances in which the crime was committed; the names of the culprits and the role played by them as
G well as th~ narpes of the witnesses present at the scene of occurrence, so vital for effective and meaningful inve§.tigation. The
information about an occurrence can be given by any person
knowing about the commission of such an offence and not necessarily by an eye witness. Commem.i.Qg on the object, value
. H and use of first Information Report, in Sheikh Hasib alias
·-~
STATE OF MAHARASHTRA v. AHMED SHAIKH
1201
BABAJAN & ORS. [D.K. JAIN, J]
Tabarak Vs. The State of Bihar6, a three-Judge Bench of this A
Court had observed as under:-
"The principal object of the first information report from the
point of view of the informant is to set the criminal law in
motion and from the point of view of the investigating
authorities is to obtain information about the alleged criminal
8
activity so as to be able to take suitable steps for tracing
and bringing to book the guilty party. The first information
report, we may point out, does not constitute substantive
evidence though its importance as conveying the earliest
information regarding the occurrence cannot be doubted. It C
can, however, only be used as a previous statement for the
purpose of either corroborating its maker under Section
157 of the Indian Evidence Act or for contradicting him·
under Section 145 of that Act. It cannot be used for the
purpose of corroborating or contradicting other witnesses." D
19. Apart from the fact that lodging"of information under
Section 154 Cr.PC keeps the District Magistrate and the Superintendent of Police informed of the occurrence and when
recorded, is the basis of the case set up by the.informant and
provides material to the police to commence investigation, its
E
fundamental object is that it acts as a safeguard against embellishment, exaggeration and forgetfulness. True, that it is not
the requirement of law that every minute detail of the occurrence
needs to be recorded in the First Information Report and as
observed by this Court in State of A.P Vs. G.olconda Linge
F
Swamy & Anr 7 that the FIR is not intended to be an encyclopedia of the background scenario. Nevertheless, having regard
to the fact that it is one of the modes by which a person aggrieved sets the criminal law in motion, it must disclose the commission of an offence. Though it is trite that the First Information G
Report does not constitute substantive evidence and can, strictly
speaking, be only used as a previous statement for the purpose of either corroborating or contradicting its maker, yet omission of material facts pertaining to the crime is undoubtedly relevant in judging the veracity of prosecution case. ··
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[2008] 14 S.C.R.
A
20. In the present case, admittedly in the First Information
Report lodged by PW-1, a law student, more than three hours
after the alleged occurrence, therewas no complaint of house
breaking and occupation of the flat by accused A-4 and A-5
when he claims to have met them at the flat and had an altercaB
tion. In his cross-examination, when questioned on the omission to mention the fact of forcible occupation of the flat by accused A-4 and A-5, he stated as under:
"At the time of recording of my complaint I was giving true
and detailed account of all incidences regarding the visit
· C
of 24.4.89, 25.4.89, 26.4.89 and threats of dispossession
and in the last of my complaint I deposed about the incident
of assault in which lnderjeet Singh died. Therefore my
F.l.R. is in detail on that behalf. ·However, name of two
ladies accused nos.4 and 5 was not given out in my
D
complaint against them for having trespassed in the flat
immediately after the incident when I had gone to see my
father. I cannot assign reason for such omission."
21. It is also pertinent to note that in his cross-examination, he also stated that when his further statement was recorded
E
on 291h April, 1989, i.e. two days after the occurrence, even then
he did not disclose the fact that accused A-4 and A-5, viz.,
Asmabi and Rahimabi, had broken open their flat and had oceupied it with a kid. He simply stated that "I cannot assign any
reas'i9JJ to omit their names as persons taking unlawful occupaF.
tion in the 1ouse immediately after the occurrence. This might
be due to sr101Sk and tragedy we had faced on that date, which
continues today. ts~Je I met my father, I did not make report of
the occurrence to the police, although police and police officers were present in the Cooper b.to~pital". It is, thus, manifest
G that the informant (PW-1) was not ableio gi\le any reasonable
explanation for the significant omission on his part. We feel that
the evidence of PW-1 is tainted with certain embellishments.
22. Furthermore, even in the evidence of Bhagwant Singh,
PW-4, the father of the deceased and PW-1, there is not even
H·
STATE OF MAHARASHTRA v. AHMED SHAIKH
1203
BABAJAN & ORS. [D.K. JAIN, J]
..
a whisper about the forcible occupation of their flat by accused
A
A-4 and A-5 although admittedly even before lodging the FIR,
PW-1, his father and his mother (PW-6) had already met. We
find it difficult to believe that their flat having been allegedly broken open and occupied by accused A-4 and A-5, it was an insignificant fact worthy of discussion amongst the family memB
bers. It is also pertinent to note that PW-3, (Smt. Najma) a
..;
neighbour of Anands, who was examined by the prosecution to
prove that the accused had borrowed a hammer and screwdriver used by them for breaking open the latch of the flat, did
not support the prosecution version. Besides, as also noted by c
the High Court that although as per the prosecution version accused A-4 and A-5, on the asking of the police constable, who
had visited the flat, had accompanied him to the police station,
this fact was not proved by examining the constable concerned.
All these circumstances, in our judgment, not only take the botD
to.m off the prosecution story, they are sufficient to throw considerable doubt on its truthfulness and the veracity of evidence
of PW-1-an eye witness complainant and knowing accused
A-4 and A-5, rendering it unsafe to base the conviction of the
accused upon it.
E
23. Under these circumstances, in our opinion, the High
Court was fully justified in holding that the omission to mention
the fact regarding the occupation of flat by accused A-4 and A5 in the First Information Report, was a very important circum-
">;
stance, fatal to the case of the prosecution.
F
24. Now, what remains to be considered is whether conviction of the respondents for offence under Section 456 l.P.C.
can be recorded on the basis of the evidence of two closely
related witnesses viz. PW-5 and PW-6, sister and mother respectively of the deceased. In their testimony, which is on simiG
~
lar lines, they have stated that when they returned to their flat in
the night of 27'h April, 1989, they found the door of the flat open
and accused A-4 and A-5 present there along with a kid and
when they entered the flat, their luggage was thrown out by the
said accused. They have also stated that when a constable came H
1204
SUPREME COURT REPORTS
[2008] 14 S.C.R.
A
to the flat and enquired about the mother of the deceased, they ~
had shown to him the damaged latch and bolt at the entrance.
The constable asked both the accused and PW-6 to follow him
and all of them went to the police station.
25. In Hari Obula Reddy & Ors. Vs. The State of Andhra
B
Pradesh 8 while dealing with the question whether the evidence
c
D
E
F
G
H
of an interested witness can form the basis for conviction even
without corroboration by an independent evidence, a three-
'r
judge Bench of this Court, speaking through R.S. Sarkaria, J.
had laid down that:
"Interested evidence is not necessarily unreliable evidence.
Even partisanship by it?elf is not a valid ground for
discrediting or rejecting· sworn testimony.