SHAHABUDDIN ABDUL KAHLIK SHAIKH versus STATE OF GUJARAT

Citation: [1995] 3 S.C.R. 200 · Decided: 05-04-1995 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
SHAHABUDDIN ABDUL KAHLIK SHAIKH 
v. 
STATE OF GUJARAT 
APRIL 5, 1995 
B 
(DR. AS. ANAND AND M.K. MUKHERJEE, JJ.] 
Indian Penal Code 186()-Section 302 r/w Section 34-Te"orists and 
Disruptive Activities (Prevention) Act 1987-Appellant prosecuted for mur-
der-Prosecution case based on the sole testimony of the brother of the 
C deceased-contradictions in his statements-Convicted for both the charges by 
Trial Court-On appeal conviction set aside. 
Evodemce Act, 1872 : 
Evidence-Appreciation of-Acceptance of contradictory evidence-To 
D depend upon the consideration whether contradiction apparent or rea~ in 
consequential or materia~ explainable or irreconciliable-lnconsistency in the 
evidence of brother of the deceased-close scrutiny-Need for. 
Appellant with 3 others, caused death of a person and was 
) 
prosecuted u/s 302 r/w Section 34 UPC and Section 3 of Terrorists and 
E 
Disruptive Activities (Prevention) Act, 1987. 
Prosecntion relied solely on the testimony of the eye witness P.W. 2, 
brother of the deceased. It his statement, PW 2 stated that he saw the 
appellant and accused 'A' attacking him with 'Guptis' and the other 2 
accused holding him from the first floor of the 'Chawl'. With regard to 
F lights he stated that there was light at and aronnd the place of occurrence. 
There were material inconsistencies in the evidence of P .W. 2. 
Regarding the place from where he saw the incident, his evidence was 
controverted by his own statement. During investigation he said that he 
G saw the incident from the upper floor of the 'Chawl' and in his cross 
examination said that he was at the corner of the 'Chawl'. 
Statement regarding overt act played by the appellant was con· 
troverted by the charge wherein it was specifically stated that appellant 
and accused 'I' caught hold of deceased and the other two accused dealt 
· H 'Gupti' blows. 
200 
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SHAHABUDDIN SHAIKH v. STATE 
201 
The claim of existence of light was controverted by P.W. 6 who stated A 
that the_ area was under curfew that night. Further, he himself stated that 
the street lights were off. 
The Trial Court, discarding the inconsistencies regarding the place, 
observed that from whatsoever place the incident was seen the crucial 
point was that the incident was seen by him. The inconsistency regarding B 
the actual role played, was held as immaterial, once it was proved that 
appellan~ was one of the persons causing murder in pursuance to their 
common intention. As for the light, relying on the Panch witness, the 
court held that inspite of street lights not working , the place was il-
luminated by lights from surrounding places. Thus the Trial Court con-
C 
victed him in respect of both the charges. 
The appellant preferred appeal u/s 19 of Terrorists and _Disruptive 
Activities (Prevention) Act, 1987. 
Allowing the Appeal, this Court 
HELD : 1.1 P.W. 2 materially contradicted himself as to the place 
wherefrom he saw the incident. Findings of Trial Court recorded on 
erroneous and perverse mode of appreciation of evidence & a patently 
wrong process of reasoning. [204-G] 
1.2. The claim of PW ?. that he saw the incident could be accepted 
notwithstanding the contradiction brought in his evidence in this regard. 
The Trial Court was required to first consider whether contradictions are 
apparent or real, inconsequential or material, explainable or irreconcili-
able and acceptance of the claim of the witness was to depend nn the 
answer thereon. Instead of approaching the matter from that angle & 
perspective-the court accepted the claim of PW 2 as gospel truih, con-
temptuously ignoring the material contradiction altogether. [205-B, C] 
2. The overt act allegedly committed by the applicant did not lit in 
with the prosecution case as reflected in the charges. The observation of 
the Trial Court in this regard may be u11exceptionable as a proposition 
of law, but the said inconsistency warranted a close scrutiny of the 
evidence of PW 2, as he happened to be brother of the deceased and the 
result of the trial solely rested upon his testimony. [206-E, 205-E] 
3. There was no light around the place of incident. PW 2's claim to 
have seen the incident & identified the miscreants is wholly unacceptable 
D 
E 
F 
G 
H 
202 
SUPREME COURT REPORTS 
[1995] 3 S.C.R. 
A as credit worthy. The Panch witness who was relied on in this regard does 
not disclose the statement attributed to him by the Trial Judge. Even if he 
had made
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