LexAHMED BIN SALEM versus STATE OF ANDHRA PRADESH
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A AHMED BIN SALEM v ST A TE OF ANDHRA PRADESH APRIL 13, 1999 ·B (G.B. PATTANAIK AND M.B. SHAH, JJ.] Penal Codes, 1860/Code of Criminal Procedures, 197 3-Sections 302 and 3071161 Criminal Trial-Appreciation of evidence-Contradictions and improvement in the evidence during the trial from the one stated by the C witnesses to the police under Section 161 Cr.PC-Murder of two persons by hurling bombs-Appellant's name appeared neither in the FIR nor in the statements recorded by the police-However, appellant's name was included during the course of trial-Material contradictions and improvements in the statement recorded by the witnesses during the recording of evidence in D court-Absence of proper test identification parade-Delayed examination of witnesses-Held, prosecution failed to prove the charge of the appellant beyond reasonable doubt and entitled to be acquitted-Explosive Substances Act, 1908, Sections 3 and 5. Practice and Procedure-Re-appreciation of evidence-When E permissible. The case of the prosecution was that accused persons came on a scooter and hurled some bombs at the shop of PWl in which PWl and two other persons sustained injuries. Later on the two persons Dl and D2 succumbed to the injuries. Appellant's name was not there in the FIR nor F given by the witnesses in the statements given to the police under Section 161 CrPC. However, the name of the appellant was included during the trial as main accused who threw bombs towards the deceased. In this case there was delayed test identification parade conducted after two years in course of trial. There was delayed recording of evidence of witnesses by the police. G There were material contradictions in the statement given by the witnesses PWl, PW6 and PW7 under Sections 161 CrPC and the evidence in the court during the trial. The appellant and two others were convicted for an offence committed under Sections 307 and 302 IPC and Sections 3 and 5 of the lndian Explosive H Substances Act However, one accused died during the trial and therefore the 610 - AHMED BIN SALEM v. ST ATE OF ANDHRA PRADESH 611 proceeding stood abated against him. On appeal the High Court affirmed the A conviction under Section 302/307 IPC and set aside the charges under Sections 3 and 5 of the Explosive Substances Act with respect to the present appellant and the other accused. Hence this appeal. During the pendency of the present appeal the other accused persons also died and hence the proceedings stood abjted against him. B Allowing the appeal, this Court HELD :1.1. Ordinarily this Court does not examine the evidence and re-appreciate the same when two courts of fact have already relied upon it, but if there appear some glaring features in the evidence, which can be seen by a mere perusal, then this Court will be failing in its duty if it does not C examine the same to test their reliability on which evidence the accused persons are being convicted of a charge of murder and sentenced to imprisonment for life. [614-G) 1.2. If the evidence of PWl is examined, whose statement has been D recorded on the date of occurrence, it would be highly unsafe to rely·on his evidence. His evidence in court totally changed from his statement recorded under section 161 CrPC. When he was confronted with his earlier version made before the police he gave tI,e explanation that his signature was taken on a document without the contents being known and, therefore, his so-called earlier version was not his statement. In his examination-in-chief, PWl E stated that he knew both the accused persons who were present in court but in cross examination he stated that the accused persons were totally strangers and, therefore he participated in the identification test that was conducted. When the contradictions made in his earlier statement to the police were confronted, he flatly denied to have made such statement to the police. Thus F there is no hesitation to hold that he was a thoroughly unreliable witness and his testimony cannot be utilised by the prosecution for bringing home the charge against the appellant. Similarly there is material contradictions in the testimony given to the police under Section 161 CrPC and the evidence given in the court by the witnesses PW6 (a friend of PWl) and PW7 (who was working in the wine shop of PWl). (614-D; 615-C-D) G - 1.3. The prosecution has totally failed to establish charge against the appellant beyo
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