advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, September 7, 2016

material omissions amount to vital contradictions which can be established by crossexamination and confronting the witness with his previous statement to the police."The right of both accused and the prosecution is limited to contradictions." It was, thus, held that omission to make a statement in terms of Section 161 of the Code of Criminal Procedure would not attract the provisions of Section 145 of the Indian Evidence Act. However, by reason of Code of Criminal Procedure explanation has been inserted to Sub-Section (2) of Section 162 which is in the following terms: "An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

PETITIONER:
LAXMAN AND OTHERS

Vs.

RESPONDENT:
STATE OF MAHARASHTRA

DATE OF JUDGMENT28/11/1973

BENCH:
PALEKAR, D.G.
BENCH:
PALEKAR, D.G.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH

CITATION:
 1974 AIR  303  1974 SCC  (1) 309
 CITATOR INFO :
 D    1985 SC1156 (49,53)


ACT:
Evidence  Act, Section 145-Important omissions by a  witness
in  the previous statements regarding participation  of the
accused in  the crime--whether contradictions within the
meaning of the section-Law laid down in Tahsildar Singh and
another v.  State  of U.  P. A. I.  R.  1959 S.  C. 1012
explained-Impact of omissions on the probative value of the
witnesses' evidence.



HEADNOTE:
In the trial u/s 302 read with s. 34 I. P. C., one Sopan was
convicted  on  the  evidence of one  Sudam,  the  only eye-
witness.   Sudam  admitted  in his  cross-examination that
neither before the  Executive Magistrate  nor before the
Committing  Magistrate, he stated that Sopan had beaten the
deceased with Rumana and that he bad stated the fact for the
first time before the trial Magistrate. Sudam also admitted
that Sopan did nothing and was simply standing there.  Sudam
also  stated  that he could watch the incident for  a very
short time as he himself was threatened by the accused and,
therefore, ran away.  The F.I.R. and dying declarations also
did  not mention the part played by Sopan in  the  incident.
The trial Court acquitted all the accused but the High Court
convicted  them.   As  regards the  omissions in   Sudam's
evidence,  the High Court held, following Tahsildar's  case,
that  the  omissions  do not amount  to contradictions and
cannot be  proved  to show that  the  witness was.  making
improvements. The  High  Court,  therefore,  ignored the
omissions.
Allowing Sopan's appeal (but not of the other two accused),
HELD . (i) We do not think that s. 145 of the Evidence Act,
on  the very reasoning of Tahsildar Singh's case,  cited  by
the High Court, was intended to exclude from, evidence what
is relevant and admitted, and, therefore, a proved  omission
from   having its  due  effect  in   the   assessment  of
probabilities. S.  145  of Evidence Act  applies  only  to
'contradictions.'   If there  are  omissions  in   Previous
statements  which do not amount to contradictions but  throw
some  doubt  on the  veracity of  what  was  omitted, the
uncertainty or doubt may be capable of removal by  questions
in  reexamination.   There  were no such  questions  put  to
Sudam. Neither proof nor use of such omissions,  which  do
not  amount  to contradictions is barred by s. 145  of the
Evidence  Act. The error the High Court had  committed was
that  it  entirely  excluded very  important,  relevant and
material omissions, from duly proved previous statements  of
the  witness Sudam from consideration altogether  as  though
they were quite irrelevant and in-consequential. [51 OF]
It  is not possible to lay down a general rule as  to what
effect a particular omission from previous statement  should
have  on  the probative value of what was so  omitted  by  a
witness.    The effect will depend upon  the totality  of
proved facts and circumstances in which the omission  might
have  taken  place.   It will often  be determined  by the
importance  of what  was  omitted.   The  Law of  Evidence
contains  nothing more than s. 3 and s. 114 of the  Evidence
Act  to indicate and illustrate the standards and  methods
employed in assessing the evidence. [510H]
(ii)The High Court ought to have examined the evidence of
Sudam, the only eye-witness, in the light of  the  material
omissions and found out how much Sudam actually saw with his
own eyes and how much of what he said could be attributed to
his  conjecture, surmise or imagination.  Sopan is  entitled
to benefit of the doubt, which emerges on an examination  of
the  whole  evidence in the case about the precise  acts  of
participation by him. 1513D]



JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 122
of 1970.
Appeal by special leave from the judgment and order  dated
24/;  25th  September  1968  of the  Bombay  High  Court  in
Criminal Appeal 1731 of 1965.
506
M.   C. Bhandare and P. H. Parekh, for the appellants.
H.   R. Khanna and S. P. Nayar for the respondent.
The Judgment of the Court wag delivered by
BEG, J.-The three appellants Laxman (aged 30 at the time  of
trial). Sopan (aged 18 at the time of trial), and  Sakharam
(aged  40 years at the time of trial), residents of  village
Walana were acquitted of charges under section 302 read with
section 34 I.P.C. by the learned Sessions Judge of Parbhani.
The  trial court had declared the testimony of the only eye
witness,  Sudam Sakharam,  P.S.  17,  to  be  unworthy  of
credence.   Neither  the several dying declarations  of the
deceased  Narain Rao, in which he gave out the names of the
three  appellants  as  his assailants nor  other  facts and
circumstances, such  as the recovery on a pointing  out  by
Sopan  of  the "Rumna" said to  have been  used  for the
murderous  attack,  were  held by the trial  Court  to  be
sufficient  to corroborate the version of the  eye  witness.
On an appeal against the acquittal, a Division Bench of the
High  Court of Bombay had elaborately discussed each one  of
the  reasons  given  by the  learned  sessions judge for
discarding  the testimony of Sudam, corroborated  by  other
facts  and  circumstances, and found the  logic behind the
trial  court's reasoning to be unsound. The High Court had
also  criticised  the learned Session's Judge in  treating
certain omissions from the previous statements of Sudam  as
damaging   contradictions   without   complying  with the
provisions of section 145 of Evidence Act.  It had relied on
Tahsildar Singh and anr. v. State of U.P.,(1) to support its
views  on the requirements of s. 145 of Evidence  Act. The
High  Court set aside the acquittal of the three  appellants
and convicted them under section 302 I. P.C. read with s. 34
IPC and sentenced them to imprisonment. for life.
in  the appeal by special leave, now before us, the  learned
counsel for the appellants has criticised the approach  of
the  High  Court,  its findings  on  individual  items  of
evidence,  and its view that the  omissions  from  previous
statements of the alleged eye witness Sudam could not affect
his credibility.  After having examined the judgments of the
trial  court  and  the High Court  and relevant  pieces  of
evidence in the case, and listening to the arguments of the
learned counsel for the appellants, who said all that  could
be urged to support this appeal, and learned counsel for the
respondent  State,  we think that the  appreciation  of the
evidence by the High Court was undoubtedly far superior and
that  interference  with  the  trial  Court's  judgment  of
acquittal  was justified.  Nevertheless, we find that  there
is  an aspect of the case relating to Sopan, who  was  a
student aged  about  18 years at the time  of the  alleged
offence, which has not been given due importance by the High
Court  so  as to determine whether this appellant  was en-
titled, as  we think he is, to the  benefit  of  doubt  as
regards his alleged participation in the actual  commission
of an offence.
(1)  AIR 1959 S.C. 1012.
507
The account of the occurrence given by Sudam, P.W. 17 may be
summarised as follows:--
The  witness, who knew, Narainrao, Sarpanch of Walana, had
been   engaged by  the Sarpanch  to  assist  him  in the
supervising  the  construction of a road under a  contract.
The Sarpanch got a commission and the witness got Rs. 3 per
day.   He left Walana with the Sarpanch at 8 . 00  A.M. for
village Mannas Pimpri to pay the wages of the labourers  on
30th  April, 1966, which was a Saturday.  Wages used  to  be
paid on Saturdays.  Laxman, appellant, met and followed them
on  the way saying that he too had to go to  Mannas  Pimpri.
As  the party reached Mahboob's field, Laxman lifted and
tucked in his Dhoti like a wrestler.  Then, Laxman  suddenly
caught hold of Narayan's right leg, and, putting  his left
hand  on  his  back, felled Narainrao  on  the ground face
downwards.   Narainrao's hands were under his body.   Laxman
caught and then sat on Narainrao's neck.  Narainrao raised a
hue and cry. When the witness tried to restrain Laxman and
caught his hand, hewas warned that he would be killed if he
interfered.  Just then, thewitness    saw    Sopan    and
Sakharam,  brother  and wards them. Sakharam  carried  a
'Ramna'.   The witness let go the hand of  Laxman.   While
Laxman sat  on the neck of Narainrao and pressed  it  down,
Sakharam  rained  blows with the 'Ramna'  on  the  back  of
Narainrao.  Sopan stood watching nearby- After Sakharam had
finished  beating Narainrao, Sopan took the same  Ramna and
started beating  him while Narain shouted :  'I  am  dead'.
Finally, Laxman took a big stone and threw it on the neck of
Narainrao.   As Laxman saw the  witness  watching  from  a
distance,  while escaping he said : "Catch this Mang". The
witness ran towards Walana.  He met, Bhika Kotwal of  Walana
on the way and informed him that Narainrao was being  beaten
by the' three accused. At Walana, he informed Abhiman, the
brother of  Narainrao, that the accused  were beating  up
Narainrao.   He then went to his sister's house  and  drank
some  water.   He  was about to go back  to  the  scene  of
occurrence when Laxman and Sopan came there.  Laxman said  :
'Take care Mang I If you testify in favour of the  Sarpanch,
you  would  be murdered'.  The witness was,  however, not
deterred  from going back to the scene of  occurrence  where
other villagers had. collected.
Attempts  were made by cross-examination to  discredit the
testimony of this witness.  Firstly, it was suggested to him
that two chits (Ex. 31 and 32), showing that the witness was
demanding Rs. 30/to spoil the prosecution case, were sent by
him.   But, as the High Court had rightly pointed  out, the
connection of this witness with writing on these chits could
not be established.  The trial Court had obviously erred  in
using  these chits to doubt the credibility of the  witness.
Secondly, it was urged that this witness had denied his con-
viction for an offence under s. 12 of the Gambling Act. The
learned Sessions  Judge had, in our opinion,  attached too
much  importance  to this denial. , The High Court,  on the
other hand, had examined the certified copy of the  criminal
case register (Ex. 42) filed to contradict the statement  of
this witness denying a conviction and had
508
held that, although one Sudam Sakharam of Bahar Jahagir was
shown to be one of two accused persons mentioned in the copy
filed, yet, the entries in the relevant columns did not show
anything beyond a fine of Rs. 5/- on Laxman, the co-accused.
The High Court also held that the identity of the particular
Sudam Sakharam mentioned in this copy was not established as
that of Sudam P.W. 17 and that there could be other  persons
of  that  name in the village. The  High  Court  had also
adversely  commented on the fact that the copy was not of  a
document kept in proper form.  It had been only signed by  a
clerk. No judgment and order of the Court was filed. The
High  Court  doubted  the  bona fides of  the defence  in
producing  what it considered to be a suspicious  copy  to
contradict one of the statements of the witness.  Even if we
do not question the bona fides of the defence in finding it,
the technical defect of want of proof of the exact  identity
of  Sudam  mentioned in the copy was  certainly there.  We
agree with the High Court that the trial court had made too
much  out of this alleged contradiction in the testimony  of
Sudam. Thirdly, it was sought to be shown that  Sudam had
improved the account of the incident given by him at earlier
stages by introducing, in his statement at the trial, what
he  had not said earlier.  The High Court held that  these
omissions were not "contradictions".  Alternatively, it held
that,  even  if an  omission here  could  be  viewed  as  a
'contradiction, it  could  not be  used  at  all   without
complying with s. 145 of the Evidence Act.
In Tahsildar's case (supra) the majority view of this  Court
by Subba Rao, J., was (at p. 1023) :-
     "Contradict according to the Oxford Dictionary
     meant to affirm to the contrary. Section 145
     of  the Evidence Act indicates the  manner  in
     which  contradiction  is brought out. The
     cross-examining counsel shall put the part  or
     parts  of the  statement which affirms the
     contrary to what is stated in evidence. This
     indicates that there is something in  writing
     which  can  be set against  another  statement
     made in evidence. If the statement before the
     police officer in the sense we have  indicated
     and  the statement in the evidence before the
     Court  are so inconsistent  or  irreconcilable
     with  each other that both of them cannot co-
     exist, it may be said that one contradicts the
     other.
     It  is  broadly  contended  that a  statement
     includes all omissions which are material and
     are  such as a witness is expected to  say  in
     the  normal course.  This contention  ignores
     the  intention of legislature expressed in  s.
     162  of  the Code and the nature of  the non-
     evidentiary value of such a statement,  except
     for  the limited purpose  of  contradiction.
     Unrecorded  statement is completely  excluded.
     But  recorded  one  is used  for a  specified
     purpose. The record of a statement,  however
     perfunctory,  is assumed to give a  sufficient
     guarantee to the correctness of the  statement
     made but if words not recorded are brought  in
     by some fiction, the objection of the  section
     would be defeated.
     509
     By  that process, if a part of a statement  is
     recorded, what was not stated could go in  on
     the sly in the name of contradiction,  whereas
     if the entire statement was riot recorded,  it
     would  be excluded.  By doing so, we would  be
     circumventing the section by ignoring the only
     safeguard imposed by the legislature,  viz.,
     that the statement should have been recorded".
     In the case before us we find that no question
     was  put at  all to  Sudam,  in his  cross-
     examination,  about  what he  bad  stated  or
     omitted  to  state to the police during the
     course of investigation. Cross-examination of
     the  witness  bad, however,  brought  out two
     material omissions from statements before the
     Executive Magistrate and the Committing Court.
     The witness said :
     "I  have not  stated  before  the   Executive
     Magistrate,  nor before the  committing  court
     that  accused nos. 2 and 3 bad obstructed me,
     when  I took to my heels. Sepan (accused no.
     2)  had  beaten Narainrao with  Rumna,  after
     taking the same from accused no. 3. I have not
     stated therefore the Executive Magistrate that
     accused no. 2 bad beaten Narainrao with Rumna.
     I have  not  stated  before  the  committing
     Magistrate that the accused no. 2 (Sopan) bad
     beaten  Narainrao.  I have stated before the
     Committing Magistrate that at the time of the
     incident, accused no. 2, did nothing  and  he
     was simply standing there".
     The High Court itself observed :
     "It is true that the witness had not made any
     statement before the  Committing  Magistrate
     regarding the part played by accused no. 2  in
     the  assault  on Narainrao but  that  may  be
     because he was not questioned on that point at
     that  time.   The same can be said  about the
     statement before the Executive Magistrate."
     It then went on to say
     "It  cannot, however, be said that be bad not
     made  any statement on the point before the
     Police.  As we will presently point out, it is
     not  possible to any that the witness had not
     made  any statement on the point before the
     Police, but, assuming for the present that  he
     bad  not made any such statement, it would  be
     only  an omission presumably due to  his not
     being questioned on the point.  That cannot be
     of any help to the defence to suggest that the
     witness was making intelligent improvements as
     assumed 'by the learned Judge.  The  omission,
     if  at all it is there, is not such  as  would
     amount to controdiction and cannot, therefore,
     be proved to show that the witness was  making
     improvements."
In so far as the High Court was presuming, from the  failure
of  the defence  to cross-examine  the witness  about any
assatement  before  the police,  that there  was  no such
omission in his statement before
M602SupCI/74
510
the  police,  the High Court was assuming the  existence  of
something which could not have been used by the prosecution
to corroborate its case even if it existed.  The High  Court
had  then, proceeding on the assumption that there was such
an  omission  from the statement of the witness before the
police, explained an assumed infirmity in it by holding that
this   constituted  neither  a contradiction  nor  was  it
inexplicable  by  a failure to question the witness  on the
point  during the investigation as though it was no part  of
the duty of the police to elicit or ascertain what part was
played by each accused in the occurrence before prosecuting
him.
If  we were to assume that the witness had revealed  to the
police the  part alleged by him at the trial to  have been
played by Sopan, it would make it all the more incumbent  on
the prosecution to bring out this part when the witness was
making his statement in his examination-in-chief before the
Magistrates.  The statements before the magistrates could be
used both to contradict and to corroborate.  The prosecution
had  performed its duty in questioning the witness, when  he
was  deposing at the trial, about the part played by  Sopan.
It should not have gone to sleep at earlier stages and then
tried  to fill up the possible gaps in the evidence on this
part of the case at the trial. If it does this, so that  an
important prosecution witness appears to be introducing new
allegations which are vital for determining the liability of
an accused, the new statements are bound to arouse suspicion
and doubt.
It  may not be out of place to mention here that  the 11th
Report of the Criminal Law Revision Committee in  England,
has  recommended the abrogation of several artificial  rules
of  evidence  which may result in the exclusion of  what  is
logically  relevant (See : Criminal Law Review, June,  1973,
p.  329).  So far as our law goes. we do not think  that  s.
145 of the Evidence Act, on the very reasoning of  Tahsildar
Singh's case (supra), cited by the High Court, was  intended
to exclude from evidence what is relevant and admitted, and,
therefore,  a proved omission from having its due effect  in
the assessment of probabilities.  Section 145, Evidence Act
applies only to 'contradictions'. if there are omissions  in
previous  statements which do not amount  to  contradictions
but  throw some doubt on the veracity of what  was  omitted,
the  uncertainty  or  doubt may be  capable  of removal  by
questions  in re-examination.  There were no such  questions
put  to Sudam in the case before us.  Neither proof nor use
of such omissions, which do not amount to contradictions, is
barred by Sec. 145.  Evidence Act.
is not possible to lay down a general rule as to what effect
a particular omission from a previous statement should have
on the probative value of what was so omitted by a  witness.
The effect will depend upon the totality of proved facts and
circumstances  in which the omission might have taken  place
It  will often be determined by the importance of wtiat was
omitted.  Oar enacted law of evidence contains nothing more
than sections 3 and 114 of the Evidence Act to indicate and
illustrate  the standards and methods employed in  assessing
the evidence.  The error the High Court had committed in
511
the  case  before  us was that it  entirely  excluded very
important,  relevant,  and  material  omissions,  from duty
proved previous  statements  of  the  witness Sudam from
consideration altogether   as though they were   quite
irrelevant and inconsequential.
Quite  apart  from the error of the High Court in  assuming
that a material omission from a previous statement, even  if
it is not to be treated strictly as a contradiction, must be
ignored in evaluating the testimony of the only eye  witness
on  so important a matter, for determining the liability  of
Sopan, we think that what Sudam P.W. 17 had omitted to state
before the  Magistrates  ought also  to  have been more
critically  examined  and tested by the High  Court  in the
light  of  probabilities  and the natural  course  of  human
conduct.    The  important   question which arose for
determination on facts and circumstances disclosed by  Sudam
himself was :
     How  much did Sudam actually see with his own
     eyes and how much of what he said could be not
     unreasonably    attributed   to conjecture,
     surmise, or imagination on his part?
     Before we discuss the evidence further, we may
     observe that Professor Munsterberg, in a book
     called  "On the Witness Stand" (p. 51),  cited
     by  Judge Jerome Frank in his  "Law  and the
     Modern  Mind" (see : 1949 ed. p. 106),  gives
     instances of experiments conducted by enacting
     sudden  unexpected preplanned episodes  before
     persons  who  were then asked to write  down,
     soon afterwards, what they had seen and heard.
     The astounding result was :
     "Words were put into the mouths of men who had
     been silent spectators during the whole  short
     episode; actions were attributed to the  chief
     participants of which not the slightest  trace
     existed; and   essential   parts   of the
     tragicomedy  were completely  eliminated from
     the memory of a number of witnesses".
Hence, the Professor concluded : "We never know whether  we
remember,   perceive, or  imagine". Witnesses   cannot,
therefore,  be branded as liars in toto and their  testimony
rejected  outright  even if parts of  their  statements are
demonstrably  incorrect or doubtful.  The astute  judge can
separate  the grains of acceptable truth from the  chaff  of
exaggerations and improbabilities which cannot be safely  or
prudently accepted and acted upon.  It is sound commonsense
to  refuse to apply mechanically, in assessing the worth  of
necessarily  imperfect human testimony, the maxim :  "falsus
in uno falsus in omnibus."
Reverting  to the evidence in the case, we find that  Sudam
was,  as  is quite natural, in a hurry to get  back  to the
village because, apart from the fear of the accused  (Laxman
had  actually threatened to kill him and the other  two had
also  been alleged by him to have attempted to prevent his
escape),  he had to inform the relations of  Narainrao soon
about  what he had seen.  And, he deposed that he told both
Bhika  Kotwal and Abhiman (P.W. 2) when he met them,. that
Narainrao  was "being" beaten, or,  in  other words, the
beating had not come
512
to  an end when he ran away from the scene  of occurrence.
Moreover,  he  was quite far when Sopan is alleged  by him,
apparently  for the first time it the-trial, to have  taken
his turn to beat the deceased with the Rumna.  Even the last
act attributed by him to Laxman who is said to have hurled a
big  stone at the neck of Narainrao lying on the ground,  is
not  corroborated by medical evidence, Moreover, it was not
possible for Sudam to have observed from a distance that the
stone hurled by Laxman actually hit Narain on his neck.  He
could have mistaken some act of Sopan, such as throwing away
of the Rumna, for an assault with it claimed by him to have
been seen from a distance as he turned his head back to see
whilst escaping.   We, therefore, conclude  that,  although
Sudam  was  there to witness how the attack  began,  he had
probably  drawn upon his imagination to some extent to give
the details of how it ended.
We  next turn to the several dying declarations put  forward
to corroborate the statement of Sudam. These show that the
three  appellants were present at the attack upon  Narainrao
and  were  thought  by Narainrao  to  have  participated  in
beating him. These dying declarations,  however,  do not
mention the particular part assigned by Sudam to  Sopan  in
his  deposition at the trial.  This is natural as  Narainrao
was  not in a position to see the actual assailant after  he
was  pinned down to the ground with his face  downwards and
Laxman sitting on his "neck". He could only guess who was
striking him on the back.
The  first dying declaration, made to Mahboob, P.W. 10, did
not  impress the High Court.  The second was made to  Piraji
P.W.  9,  the  third to Laxmanramji P.W. 2 and the  4th  to
Datarao P.W.  3, the Sarpanch of Mannas Pimpri.   The High
Court  had  rightly  observed  that  the  last three  dying
declarations  made  to villagers, who had assembled  at the
scene of occurrence before Narainrao died, could not be held
to be false as the medical evidence indicated that he  could
remain conscious for some time after the attack.  The more
important question for determination, therefore, was :
"To what extent do the dying declarations corporate Sudam?"
Neither the dying declarations nor the F.I.R. lodged at the
police station by Abhiman P.W. 12, the brother of Narainrao,
on  30-4-1966. at 12 30 p.m. disclose the parts  played  by
each  of the three accused.  The report sent by Abhiman  is
actually signed by Sudam P.W. 17.  It is true that, at that
time, it was not known that Narainrao would die.  But, both
Sudam  and Abhiman knew that a very severe beating had been
given  to Narainrao.  We think that it is unlikely that,  if
Sudam  had seen the details of the way in which the  beating
of  Narainrao  ended, no details of it whatsoever  would  be
given in the report sent by Abhiman to the police which was
signed by Sudam.  Thus, the proved omission of the last part
of  Sudam's  version  from the F.I.R. as well  as  from his
proved previous  statements before the Executive  and the
Committing Magistrates, combined with the unlikelihood that
he could either stay long enough at the scene to see how the
beating ended or
513
would  be  able to see this well enough when he turned his
head back while running away and his own admitted statements
to  other  witnesses throw that part of the story  in  which
Sopan appellant is said to have taken his turn in beating of
Narainrao in the region of reasonable doubt.
Sopan, appellant,  a young man, may  have  accompanied his
elder  brother, Laxman, and his cousin,  Sakharam,  out  of
curiosity.   He may have watched the beating. Sudam's own
statement before the committing magistrate quoted above, was
that  this  is all that Sopan did there, although  the High
Court thought fit to explain it away by believing that this
assertion was confined to the earlier stage of the  beating.
According  to  the  High Court's  finding,  Sopan  was only
standing  at least when Sakharam was giving the eating with
the 'Rumna'.  He must have accompanied his elder brother and
cousin back to the village.  Sopan may have even taken and
thrown the 'Rumna' or known where it was lying.   The fact
that he indicated the place from where it could be recovered
would  not be sufficient to establish his  participation  in
the incident beyond reasonable doubt.  Therefore, we are  of
the  opinion  that  Sopan, appellant,  is  entitled  to the
benefit of the doubt which emerges on an examination of the
whole  evidence in  the  case about  the  precise  acts  of
participation by him.  As regards Laxman and Sakharam  there
is  no room for doubt that they actually attacked  Narainrao
deceased as stated by Sudam.  The manner in which  Narainrao
was  said  to be beaten, corroborated by  medical  evidence,
makes it impossible for the beating to have been given by  a
single individual.  The participation of Laxman and  Saharam
in  the actual commission of the  offence  is,  therefore,
established  beyond  any  reasonable  doubt.   The   medical
evidence  also leaves no doubt that the  beating  was such
that,  in the ordinary course of nature, it would cause the
death of Narainrao.
We,  therefore, think that Laxman and Sakharam  appellants
have  been rightly convicted under section 302 read with  s.
34  I.P.C.  and sentenced to life imprisonment.  Hence,  we
dismiss the appeal of Laxman and Sakharam and affirm  their
convictions  and  sentences.  We allow the appeal  of  Sopan
appellant  and set aside his conviction and  sentence.  We
order  that Sopan be set at liberty forthwith unless  wanted
in some other connection.
S.B.W.     Appeal allowed in part.
514



No comments:

Post a Comment

Note: Only a member of this blog may post a comment.