Supreme Court of India
STATE OF HARYANAversusMOHD. YUNUS & ORS.
- Citation
- 2024 INSC 34
- Decided
- 12 January 2024
- Disposal
- Dismissed
Holding
A murder conviction under section 302 read with section 34 cannot be sustained on the basis of untrustworthy eyewitness testimony lacking corroboration.
Summary
Four persons were tried for the killing of Akbar on 9 January 1999. The trial court convicted A1, A2 and A3 under sections 302 and 323 read with section 34 of the IPC, while acquitting them of section 325, and later the High Court altered the convictions, acquitting A1 of 302/34 and A2 of 302/34 but upholding A2's conviction under 323/34. The State appealed the acquittal of A1, and A2 appealed his conviction under 302/34, raising the issue of whether the testimony of two eyewitnesses, who were found to be untrustworthy and contradictory, could support a murder conviction. The Supreme Court examined the credibility of the witnesses, the lack of proven recovery of the weapons, and the presence of prior enmity among the parties. It held that a murder conviction cannot rest on the statements of untrustworthy eyewitnesses without strong corroboration. Consequently, the Court set aside A2's conviction under section 302 read with section 34, but left his conviction under section 323 read with section 34 intact, and dismissed the State's challenge to A1's acquittal.
Issues considered
- Whether the High Court was justified in acquitting A1 of offence under section 302 read with section 34 of the IPC.
- Whether A2 can be convicted of murder (section 302 IPC) on the basis of testimony of witnesses deemed untrustworthy and contradictory.
- Whether the recovery of the alleged weapons from A1 and A2 was proved and can be relied upon for conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 319
- Indian Penal Code, 1860s. 302, s. 323, s. 325, s. 34
Subjects
WitnessesUntrustworthyFalsely implicateEyewitnessCorroborationPrevious enmityConvictionAcquittalContradictoryRecoveryDelay in registration of FIRSentenceBail
Judgment
[2024] 1 S.C.R. 404 : 2024 INSC 34
State of Haryana
v.
Mohd. Yunus & Ors.
(Criminal Appeal No(S).1307 of 2012)
12 January 2024
[M. M. Sundresh and Prashant Kumar Mishra*, JJ.]
Issue for Consideration
Whether the High Court was justified in convicting A1 only u/s.
323 while acquitting u/s. 302/34, and convicting and sentencing
A2 u/s. 302 and 323 read with s. 34; and whether in trial u/s.
302 IPC, it is safe to convict on the basis of the statement of an
untrustworthy witness.
Headnotes
Witnesses – Evidentiary value, when witness not trustworthy:
Held: For trial u/s. 302 IPC, if a witness is branded as untrustworthy
having allegedly twisted the facts and made contrary statement, it
is not safe to impose conviction on the basis of statement made
by such witness – When there is an effort to falsely implicate one
accused person, statement made by such an eyewitness cannot
be relied without strong corroboration – On facts, on account of
previous enmity between the parties, accused persons armed with
weapons inflicted injuries resulting in death of one and injuries to
the informant, his son and the other eye-witness – In appeal, A1
was convicted only u/s. 323 while acquitting u/s. s. 302/34, A2
was convicted and sentenced u/s. 302 and 323 read with s. 34,
while A 4 was acquitted of charges and A3 died – Statement of
witnesses-informant and other eye-witness were recorded twice,
firstly, in the trial against A1, A2 and A3 and secondly, in the trial
against A4 – Both the prosecution witnesses are disbelieved in the
second trial since their statements were contradictory, the facts
were twisted and improvements were made, thus, no reliance can
be made upon such statement – Also the recovery of weapons
from A1 and A2 was not proved – Thus, not safe to convict A2
for offence u/s. 302/34 IPC on the basis of statement of such
* Author
[2024] 1 S.C.R. 405
State of Haryana v. Mohd. Yunus & Ors.
eyewitness – Judgment of the courts below convicting A2 for
offence u/s. 302/34 set aside – However, conviction of A2 for the
offence u/s. 323/34 not interfered with – Acquittal of A1 u/s. 302/34
upheld – Penal Code, 1860 – ss. 302/34, 323/34. [Paras 16 - 22]
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973
List of Keywords
Witnesses; Untrustworthy; Falsely implicate; Eyewitness;
Corroboration; Previous enmity; Conviction; Acquittal; Contradictory;
Recovery; Delay in registration of FIR; Sentence; Bail.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1307
of 2012.
From the Judgment and Order dated 26.10.2009 of the High Court
of Punjab & Haryana at Chandigarh in CRLA No.437-DB of 2001.
With
Criminal Appeal No.1308 of 2012.
Appearances for Parties
P. N. Puri, Rahul Sharma, Mrs. Reeta Dewan Puri, Ravinder Pratap
Singh, Manish Dhingra, Ayush Bhatia, Dr. Monika Gusain, Ashok
Mathur, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Prashant Kumar Mishra, J.
1. Four accused persons namely, Mohd. Yunus (A1), Mohd. Jamil
(A2), Ghasita (A3) and Akhtar Hussain (A4) were sent for trial for
the same incident which occurred on 09.01.1999 causing death of
Akbar (deceased) and injuries to Deenu (PW-1), Ahmad (PW-2)
and Harun. Initially, accused nos. 1, 2 and 3 were tried in Sessions
Case No. 12 of 1999 arising from FIR No. 10 dated 09.01.1999
of Police Station Nuh, Haryana in which they were convicted for
offences under Sections 302 and 323 read with Section 34 of the
406 [2024] 1 S.C.R.
Digital Supreme Court Reports
Indian Penal Code, 18601 while acquitting them of the charge under
Section 325 read with Section 34 of the IPC. During the pendency
of the trial against first three accused, the prosecution moved an
application under Section 319 of the Code of Criminal Procedure,
19732 which was allowed by the Trial Court on 02.11.1999. While the
first trial was decided on 25.07.2001, when accused Akhtar Hussain
was absconding, he was tried separately after he surrendered, and
charge sheet was submitted on 01.04.2003. The trial against Akhtar
Hussain in Sessions Case No. 112 of 1999 dated 29.08.2003 was
decided on 05.10.2004 in which he was acquitted of the charges
under Sections 302, 323, 325 read with Section 34 of the IPC.
2. Akhtar Hussain’s (A4) acquittal was challenged before the High Court
which came to be dismissed against which no further appeal has
been preferred either by the complainant or by the State.
3. Under the impugned judgment in Criminal Appeal No. 1308 of 2012
the High Court has passed the common order disposing of Criminal
Appeal No. 437-DB of 2001 and Criminal Revision No. 418 of 2005.
The criminal appeal was preferred by Mohd. Yunus, Mohd. Jamil
and Ghasita challenging their conviction by the Trial Court whereas
criminal revision was preferred by the complainant-Deenu challenging
the judgment of acquittal passed in favour of accused-Akhtar Hussain.
The High Court dismissed the appeal qua accused-Ghasita and Mohd.
Jamil whereas the appeal preferred by accused Mohd. Yunus was
allowed in part acquitting him of the charges under Section 302 read
with Section 34 of the IPC but maintained his conviction for offence
under Section 323 read with Section 34 IPC and sentenced him for
the period already undergone.
4. Ghasita (A3) has died during the pendency of this appeal. Resultantly,
at present, out of the four accused persons, Mohd. Yunus (A1) stands
convicted only under Section 323 of the IPC, Ghasita (A3) has died,
and Akhtar Hussain (A4) is acquitted by the Trial Court and affirmed
by the High Court against which there is no further appeal. Thus, out
of four accused persons, only Mohd. Jamil (A2) stands convicted
under Sections 302 and 323 read with Section 34 IPC.
1 For short ‘IPC’
2 For short ‘Cr.P.C.’
[2024] 1 S.C.R. 407
State of Haryana v. Mohd. Yunus & Ors.
5. Criminal Appeal No. 1307 of 2012 has been preferred by the State
challenging the judgment of the High Court acquitting Mohd. Yunus
(A1) from the charges under Section 302 of the IPC while convicting
him under Section 323 of the IPC.
6. The prosecution case, in brief, is that at about 09.10 p.m on
09.01.1999, the informant-Deenu (PW1) along with his brother
Akbar (deceased) and Harun (son of PW1) were sitting together
warming themselves in front of fire. When the deceased was going
to his house, Ghasita (A3), his son Akhtar Hussain (A4) armed
with Pharsa, Mohd. Jamil (A2) armed with Kulhari and Mohd.
Yunus (A1) armed with lathi reached there to teach a lesson in
connection with a fight broke between them a day before. As per
the FIR, Ghasita (A3) and Akhtar Hussain (A4) gave Pharsa blows
on the head of the deceased. Akhtar Hussain (A4) gave another
blow whereas Jamil (A2) also inflicted injuries by Kulhari on the
head of the deceased. When the deceased fell down Yunus (A1)
gave lathi blows on the legs of the deceased and Ghasita (A3)
gave another Pharsa blow over his head. When Ahmad (PW2)
tried to rescue the deceased from the accused persons, Yunus
(A1) gave lathi blows on the shoulder of Ahmad (PW2). Deenu
(PW1) lodged the first information report.
7. During the investigation, Dr. M.S. Ranga (PW3) medically examined
the deceased-Akbar and found the following injuries on his person:
“(1) Incised wound 2.5 cm x 2 cm x bone deep placed
over the scalp frontal region in the midline transversely
with profuse bleeding.
(2) Incised wound 4cm x 2mm x bone deep placed over
the frontal region of the scalp profused bleeding
placed just paralled and behind the injury no.1
(3) Incised wound 1cm x 2cm placed over the frontal
region of the scalp just lateral to injury no. 1 & 2
placed vertically with profused bleeding.
(4) Incised wound 2cm x 1cm bone deep placed over
the frontal region of the scalp just behind the injury
no.3 anteroposteriorly.”
PW-3 opined that the injuries are caused within six hours by using
sharp edged weapons.
408 [2024] 1 S.C.R.
Digital Supreme Court Reports
8. Ahmad (PW2) received two injuries over his right shoulder and right
hip joint respectively. Both having been caused by blunt weapon
within six hours. The deceased-Akbar succumbed to the injuries
on 11.01.1999. Dr. Chander Kant (PW7) of Safdarjang Hospital,
New Delhi conducted the post-mortem examination and found the
following injuries:
“1. One transversely placed stitched wound on right fronto
temporal region. Total length 12 cm. Total number
of stitches 12. on removal of the stitches the wound
was partially surgical in nature.
(a) One incised wound on right fronto region at the
junction of frontal region with anterior aspect of right
parietal region size 3 x 1.3 cm x bone deep. Margins
were clean cut except at the places of stitched both
angles acute.
(b) One incised wound parallel to injury No.(a) size 2.1cm
x 1.4 cm x bone deep, both margins clean cut except
at the place of stitches.
Underneath right fronto-parietal bones were in pieces in
irregular shape and size, already removed in an area of
8 cms x 5 cms.
2. One incised wound vertically placed middle of fronto-
parietal region 2.6 cms x 2 cm x bone deep.
3. Abrasion on back of left shoulder region size 4 cms
x 3 cms.
4. Abrasions on occipital region left side size 2 cm x 1 cm .
5. Contusion left eye.”
9. On 14.01.1999, Yunus (A1) and Jamil (A2) were arrested and a
lathi was recovered from Mohd. Yunus (A1) whereas Kulhari was
recovered from Mohd. Jamil (A2) . Ghasita (A3) was arrested on
22.01.1999 and blood stained Pharsa was recovered from him.
Akhtar Hussain (A4) was found innocent by the police and was not
sent for trial. However, he was summoned later under Section 319
Cr.P.C. There is no recovery against Akhtar Hussain (A4). Akhtar
Hussain (A4) challenged the order of summoning before the High
Court and the trial against him was stayed which commenced later
on after dismissal of the criminal revision.
[2024] 1 S.C.R. 409
State of Haryana v. Mohd. Yunus & Ors.
10. During the course of trial, the prosecution examined the complainant/
eye-witness-Deenu (PW-1), injured eye-witness- Ahmad (PW-2),
Dr. M.S. Ranga (PW-3), Constable Sarwan Kumar (PW-4), Head
Constable Sunil Dutt (PW-5), Constable Raj Kumar (PW-6), Dr.
Chander Kant (PW-7), ASI Siri Niwas (PW-8), Head Constable
Hari Kishan (PW-9) and SI Daya Nand (PW-10). However, listed
prosecution witnesses namely, Harun, Abdul Rashid, Mozam Khan,
Rati Mohd. And Fattu were gave up being unnecessary.
In defence, accused appellants submitted certified copy of complaint
made by Ghasita (A3) against deceased-Akbar, PW Harun and others
for offences punishable under Sections 379, 380, 411, 406, 407, 452,
120-B, 506, 427 and 403 IPC for illegal cutting and removal of 13
trees belonging to the Panchayat. A copy of pedigree showing 4th
degree relationship between prosecution witnesses namely, Deenu
and Ahmad as well as certified copy of statement of Ghasita (A3)
as prosecution witness in trial “State vs. Tundal etc.” under Section
304 IPC were also submitted.
11. Upon their conviction by the Trial Court, Mohd. Yunus (A1), Mohd.
Jamil (A2) and Ghasita (A3) preferred appeal before the High
Court which was dismissed qua Mohd. Jamil (A2) and Ghasita (A3)
whereas appeal preferred by Mohd. Jamil (A1) was allowed in part.
In the separate trial, Akhtar Hussain (A4) was acquitted which was
affirmed by the High Court against which there is no further appeal.
12. In the present Criminal Appeal No.1308 of 2012, we are required to
consider the legality and validity of conviction imposed upon Jamil
(A2) whereas in the Criminal Revision, the State has called in question
Yunus (A1) acquittal under Section 302 IPC.
13. It was argued by the learned counsel for the appellant-Mohd. Jamil
(A2) that the FIR is ante-timed and delayed; the conviction is based
on the testimony of interested witnesses who are closely related
to the deceased and the prosecution has failed to examine the
independent witnesses namely, Harun and Deenu s/o Kalu. It is also
argued that the presence of informant (PW-1) is doubtful considering
the statement of Ahmad (PW-2) recorded under Section 161 Cr.P.C.
in which he did not mention that Deenu (PW-1) was present at the
spot; moreover, Deenu’s clothes were not smeared with blood,
although Deenu deposed in his statement that after the deceased
410 [2024] 1 S.C.R.
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suffered injuries he lifted him in an injured condition and put him
in the tractor. Learned counsel has referred to the omissions and
contradictions in the statements of these witnesses.
14. On the contrary, learned counsel appearing for the State of Haryana
would submit that conviction of Mohd. Jamil (A2) under Section
302 read with Section 34 IPC is born out from the evidence on
record, which is unimpeachable, therefore, no interference is called
for. Challenging the acquittal of Mohd. Yunus (A1) for offence
under Section 302 read with Section 34 IPC (in Criminal Appeal
No.1307/2012), learned counsel for the State of Haryana argued that
the same set of evidence, which holds good for convicting Mohd.
Jamil (A2) should have been given due weightage for upholding
the conviction of Mohd. Yunus (A1) for the offence under Section
302 read with Section 34 IPC. According to him, the High Court
ought not to have acquitted Mohd. Yunus (A1) of the charge under
Section 302 read with Section 34 IPC.
15. We have heard learned counsel for the parties at length and perused
the material available on record.
16. The High Court has rejected the argument qua delay in registration
of FIR or that it is ante-time, and we see no reason to disagree with
the High Court’s finding on this aspect of the matter.
17. It is to be noticed that as per the first version of the incident narrated
by the informant-Deenu in the FIR lodged by him, Ghasita (A3) gave
a Pharsa blow on the head of the deceased and second blow was
given by Akhtar Hussain (A4) by Pharsa over his head and third
blow was given by Mohd. Jamil (A2) with Kulhari on his head and
when the deceased fell down, Mohd. Yunus (A1) gave a lathi blow
and Ghasita (A3) gave another blow over the head of the deceased.
When Akhtar Hussain (A4) was sent for trial, Deenu was examined
as PW-7 who maintained his statement that Mohd. Jamil (A2),
Ghasita (A3) and Akhtar Hussain (A4) assaulted the deceased with
Pharsa and Kulhari. Comparing the statement of the Deenu (PW-7)
with the statement of Ahmad (PW-8), the Trial Court found major
contradictions and disbelieved the statement of Deenu (PW-7) while
acquitting Akhtar Hussain(A4) of the charges under Section 302
read with Section 34 IPC. It was also held in the said judgment of
the Trial Court that PW-7 and PW-8 are interested witnesses and
cannot be relied upon in the circumstances of the case. Further it
[2024] 1 S.C.R. 411
State of Haryana v. Mohd. Yunus & Ors.
was noticed that PW-7 is changing his stand inasmuch as in his
earlier statement dated 08.07.1999 he denied that Ghasita (A3) and
Akhtar Hussain (A4) were armed with Pharsa which he stated in the
trial against Akhtar Hussain (A4). The Trial Court was of the opinion
that both the important witnesses namely, Deenu (PW-7) and Ahmad
(PW-8) made improvements in their statements. Therefore, when
the statements are contrary, facts are twisted and improvements are
made, no reliance can be made upon such statement.
18. Although, appellant – Mohd. Jamil (A2) and Akhtar Hussain (A4) were
tried separately and the statement of witnesses were recorded twice,
firstly, in the trial against three accused persons (Mohd. Yunus (A1),
Mohd. Jamil (A2) & Ghasita (A3)) and secondly, in the trial against
Akhtar Hussain (A4), the fact remains that both the star witnesses
of the prosecution namely Deenu (PW-7) and Ahmad (PW-8) are
disbelieved in the second trial by clearly stating that their statements
are contradictory, the facts are twisted and improvements are
made. For trial under Section 302 IPC, if a witness is branded as
untrustworthy having allegedly twisted the facts and made contrary
statement, it is not safe to impose conviction on the basis of statement
made by such witness. When there is an effort to falsely implicate
one accused person, statement made by such an eyewitness cannot
be relied without strong corroboration. Moreover, there is material on
record proving previous enmity between the parties as mentioned
in paragraph 25 of the trial court judgment.
19. It is important to notice that the Trial Court had recorded a finding
that recovery of Lathi from Mohd. Yunus (A1) and Kulhari from Mohd.
Jamil (A2) is not safe to rely upon, meaning thereby, the recovery has
not been proved. The Trial Court found that the recovery of Pharsa
from Ghasita (A3) is fully proved. However, the appeal preferred by
Ghasita (A3) has already abated.
20. Summing up the quality of evidence available on record, we have
found that recovery of Kulhari from Mohd. Jamil (A2) and Lathi
from Mohd. Yunus (A1) has not been proved. The deceased had
sustained four injuries over his head. There are allegations against
Ghasita (A3) that he inflicted injuries over the head of the deceased
on more than one occasion. The statement of eye-witness Deenu
(PW-7) and Ahmad (PW-8) have not inspired confidence in the second
trial against Akhtar Hussain (A4). The credibility of their evidence is
412 [2024] 1 S.C.R.
Digital Supreme Court Reports
under serious doubt because of twisting of facts and improvements
made. Therefore, for all these reasons it is not safe to convict the
appellant- Mohd. Jamil (A2) for offence under Section 302 read with
Section 34 IPC on the basis of statement of such eyewitness.
21. Accordingly, we set aside the impugned judgment of the High Court
and the Trial Court convicting the appellant-Mohd. Jamil (A2) for
offence under Section 302 read with Section 34 IPC. However, in
view of the evidence on record conviction of appellant-Mohd. Jamil
for the offence under Section 323 read with Section 34 IPC is not
required to be interfered. Resultantly, Criminal Appeal No. 1308 of
2012 preferred by the appellant-Moh. Jamil (A2) is allowed in part
setting aside his conviction under Section 302 read with Section 34
IPC and, at the same time, maintaining his conviction and sentence
under Section 323 read with Section 34 IPC. The appellant-Mohd.
Jamil (A2) has been sentenced to undergo rigorous imprisonment for
six months for offence under Section 323 read with Section 34 IPC.
As per the custody certificate, he has already undergone sentence
for more than six months. Since, the appellant-Mohd. Jamil is on bail
during the pendency of this appeal, his bail bonds are discharged.
22. Criminal Appeal No. 1307 of 2012 preferred by the State of Haryana
challenging the acquittal of Mohd. Yunus (A1) under Section 302
read with section 34 IPC stands dismissed.
Headnotes prepared by: Nidhi Jain Result of the case:
Criminal Appeal No. 1308 of 2012
partly allowed and Criminal Appeal No.
1307 of 2012 dismissed.
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