LexJAVED MASOOD AND ANR. versus STATE OF RAJASTHAN
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A B [2010) 3 S.C.R. 236 JAVED MASOOD AND ANR. v. STATE OF RAJASTHAN (Criminal Appeal No. 1522 of 2008) MARCH 09, 2010 [8. SUDERSHAN REDDY AND SURINDER SINGH NIJJAR, JJ.] Penal Code, 1860: s.302 - Conviction under, by courts C below, on the basis of evidence of eye witnesses - Justification of - Held: On facts, not justified - Entire prosecution case rested upon the Parcha Bayan lodged by PW-5 - PW-5 was brother of deceased and a highly interested witness - Evidence of PW-6 completely ruled out presence of PW-5 at o the scene of offence - Once his presence is disbelieved, whole case of prosecution would collapse - The police personnel who came on the spot after incident and took deceased to hospital deposed that PWs were not present at the scene of offence - Police personnel were independent E witness and there was no reason for them to, depose falsely. Constitution of India, 1950: Article 136 - Scope of- Held: Concurrent findings of facts are not usually interfered with in exercise of jurisdiction under Article 136 by re-appreciation of the evidence unless it is clearly established that courts F below altogether ignored vital piece of evidence and rested their conclusion placing reliance on the evidence which could not be accepted on the face of it. Prosecution case was that on the fateful day, G accused persons equipped with deadly weapons reached the spot of occurrence and started inflicting injuries on the deceased and others. Thereafter accused persons fled away. The police van reached the spot and removed the deceased to the hospital where he was H 236 JAVED MASOOD AND ANR. v. STATE OF 237 RAJASTHAN declared dead. PW-5 lodged a Parcha Bayan. The A prosecution in support of its case examined 33 witnesses. Trial Court accepted the prosecution case and convicted the appellants under Sections 148, 201 and 302 IPC. On appeal, High Court set aside conviction under Sections 148 and 201. It however upheld conviction B under Section 302 IPC. Hence the present appeal. Allowing the appeal, the Court HELD: 1.1. The concurrent findings of facts are not usually interfered with in exercise of jurisdiction under C Article 136 of the Constitution of India by re-appreciation of the evidence unless it is clearly established that the courts below altogether ignored vital piece of evidence and rested their conclusion placing .reliance on the evidence which cannot be accepted on the face of it. D [Para 8) [244-F-G] 1.2. The evidence of PW-6 is very crucial. It is in his evidence that on the fateful day the deceased alone had come on a motorcycle to his shop at about 12.30 p.m. to E repay an old debt. There was conversation between them for about 15 minutes. While the deceased was sitting in the shop he went into the basement of the shop to find as to any old tyres were available to sell as requested by F the deceased and when he returned to the shop the deceased was not found in the shop. Then he found crowd in the street and when he went to the place to know as to what transpired found the deceased lying completely soaked in blood. He had died at the place of occurrence. Within 5-10 minutes the police came in gypsy and removed the body to hospital in gypsy. It was G specifically stated in his evidence that PW-5 who was brother of the deceased came to the spot after 10 minutes of the removal of the dead body and enquired from him regarding the occurrence. He also stated in his evidence H 238 SUPREME COURT REPORTS [201 O] 3 S.C.R. A that he had not given the names of any individuals to the police in as much as he had not seen the actual occurrence of the incident. He repeatedly stated that PW- 5, PW-13, PW-7 and PW-14 were not present when the police kept the dead body of deceased in gypsy. He also B explained that there was no ·need for him to send any telephonic message had they been present at the scene of occurrence. This witness did not support the prosecution case. He was not subjected to any cross- examination by the prosecution. His evidence remained c unimpeached. The evidence of PW-13 and PW-14 was more or less the same as of PW-5. [Paras 10 and 11] [245- D-H; 246-A-C] 1.3. PW-18 was a Police Constable who along with driver PW-30 went in the gypsy to the spot and lifted the D injured person into gypsy to take him to the hospital. He stated in his evidence that at that time except himself, driver PW-30 and Circle Inspector nobody
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