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Friday, October 7, 2016

in Masalti versus State of U.P.[26] to the effect that the evidence of interested partisan witnesses though required to be carefully weighed, the same could not be discredited mechanically. When a crowd of unlawful assembly commits an offence, it is often not possible to accurately describe the part played by each of the assailants. Though the appreciation of evidence in such cases may be a difficult task, the court has to perform its duty of sifting the evidence carefully. 32. Applying the above principles to the present case, it is clear that all the five eye witnesses have named A1 to A7. Other accused have not been named by PW11 and PW18. By way of abundant caution, we give benefit of doubt to A10 and A11 for the reason that they have not been named by PW11 and PW18 and also for the reason that PW10 has attributed specific role only to A1 to A7. But as far as A1 to A7 are concerned (A2 has already died) all the five witnesses have consistently named them. A1 to A7 have been assigned specific role in assaulting the deceased. Their conviction and sentence under Section 302/149 of the IPC has to be upheld. For the above reasons, this appeal is partly allowed to the extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad) are given benefit of doubt and are acquitted. They be released from custody,

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       criminal APPELLATE JURISDICTION

                      criminal APPEAL NO.1516 OF  2011

bhagwan jagannath markad
&  ors.                                       … APPELLANTs

                                   VERSUS


state of maharashtra                ... RESPONDENT


                               J U D G M E N T


ADARSH  KUMAR  GOEL,  J.


1.    The appellants are aggrieved by the  judgment  and  order  dated  20th
April, 2007 passed by the High Court of Judicature  at  Bombay  in  Criminal
Appeal No.533 of 1990 whereby they have been convicted under  Sections  147,
149, 302 read with Sections 149, 324 and 326 of the Indian  Penal  Code  and
sentenced  to  undergo  imprisonment  for  life,  apart  from  other  lesser
sentences which are to run concurrently and payment of fine,  setting  aside
their acquittal by the trial court.

2.    Originally there were 16 accused namely:-
1)    Bhagwan Jagannath Markad,
2)    Janardhan Rambhau Tate,
3)    Dada Sayyednoor Mulani,
4)    Sayyed Sayyadnoor Mulani,
5)    Sandipan Sakhara Koyale,
6)    Nivrutti Sakharam Koyale,
7)    Krishna Sakharam Koyale,
8)    Shailendra Sandipan Koyale,
9)    Chandrakant Shankar Markad,
10)   Babu Rama Berad,
11)   Balu Naradeo Berad,
12)   Manik Rama Berad,
13)   Pandurang Babu Arade,
14)   Sadashiv Shahu Arade,
15)   Kisan Rama Berad,  and
16)   Appa Shabu Arade.

3.    The trial court acquitted all the  accused.   The  High  Court  upheld
acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16.
4.    Accused No.2 is reported to have died.   Thus,  eight  appellants  are
before  this  Court.   They  are  A1  Bhagwan  Jagannath  Markad;  A3   Dada
Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; A5 Sandipan Sakhara  Koyale;
A6 Nivrutti Sakharam Koyale; A7  Krishna  Sakharam  Koyale;  A10  Babu  Rama
Berad and A11 Balu Naradeo Berad respectively.
5.    According to the prosecution, one Bibhishan Vithoba  Khadle  has  been
murdered and six persons  have  been  injured  being  Indubai,  PW11  Dagadu
Gopinath Koyale, PW18 Chaturbhuj Khade, PW15 Bibhishan Kshirsagar,  Gopinath
Mahadev Koyale and PW12 Kernath Koyale in the attack by the accused.
6.    As per the prosecution version recorded in  the  FIR  lodged  by  PW10
Satyabhama, her husband PW11 Dagadu Gopinath Koyale, father-in-law  Gopinath
Koyale, deceased Bibhishan  Vithoba  Khadle,  PW18  Chaturbhuj  Khade,  PW15
Bibhishan Kshirsagar along with others were present in their  house  on  the
date of the occurrence on 13th November, 1988 at 12.00  noon  when  all  the
accused came there to attack her  husband.   Accused  No.3  Dada  Sayyednoor
Mulani put the house on fire on account of which everyone came out.  Accused
Nos.1 and 2 Bhagwan Jagannath Markad and  Janardhan  Rambhau  Tate  attacked
Dagadu with swords on hands, legs and knees. Accused  No.3  Dada  Sayyednoor
had barchi. Accused No.4 Sayyed Sayyadnoor Mulani had  knife.  Accused  No.5
Sandipan Sakharam Koyale had  iron  rods.  Accused  No.6  Nivrutti  Sakharam
Koyale had barchi. Accused No.7 Krishna Sakharam  Koyale  had  axe.  Accused
No.10 and 11 Babu Rama Berad and Balu Naradeo Berad had  axe.  Accused  No.8
Shailendra Sandipan Koyale had sticks.  PW11 Dagadu fell down on account  of
beating and became unconscious.  Accused No.3 Dada Sayyednoor, accused  No.4
Sayyed Sayyadnoor Mulani, accused No.5  Sandipan  Sakharam  Koyale,  accused
No.6 Nivrutti Sakharam Koyale, accused No.7 Krishna Sakharam  Koyale  caused
beating to the deceased  Bibhishan  Vithoba  Khade.   Accused  Nos.1  and  2
Bhagwan Jagannath Markad and Janardhan Rambhau Tate also  attacked  deceased
Bibhishan Vithoba Khadle.   The  accused  then  beat  PW11  Dagadu  Gopinath
Koyale and PW18 Chaturbhuj Khade with sticks  and  swords.   The  occurrence
was a result of the enmity on account of party faction in Panchayat and  Co-
operative Society elections.
7.    In  the  statement  before  the  court,  apart  from  repeating  above
version, PW10 Satyabhama further stated that a bullock cart was arranged  to
carry injured Dagadu and the deceased Bibhishan Vithoba Khade upto the  main
road and thereafter they were carried in a jeep.  On the way,  the  FIR  was
lodged at 5.30 p.m. and thereafter the injured and the deceased  were  taken
to the PHC and then to the civil hospital.   PW11  Dagadu  remained  in  the
hospital for three to four months and thereafter  in  private  hospital  for
two to three months.
8.    After registering the FIR, investigation was carried out and   charge-
sheet was submitted  before  the  Court.  The  accused  denied  the  charge.
Accused No.5 Sandipan Sakharam,  however,  stated  that  he  was  called  by
Dagadu through deceased Bibhishan Vithoba Khade  to  his  place  where  PW18
Chaturbhuj Khade  and PW12 Kernath Koyale were also  present.   PW11  Dagadu
told him that he  should  not  contest  the  election.   The  said  accused,
however, replied that PW11 Dagadu had been  Sarpanch  for  10-12  years  and
thus, accused should be allowed to become Sarpanch. This  led  to  inter  se
assault between PW11 Dagadu and deceased Bibhishan  Vithoba  Khade  and  the
said accused was also assaulted by PW11 Dagadu.
9.    The prosecution led evidence comprising of medical evidence,  recovery
of material objects, eye-witnesses  and  the  investigation.  We  will  make
reference only to the relevant evidence on record.  PW4 Dr. Shravan  Gavhane
conducted the post mortem on the  body  of  the  deceased  and  found  seven
injuries.  Injury No.1 was  on  the  head  which  was  found  to  be  fatal.
Injuries Nos. 2 to 7 were said to be with hard and blunt object like  sticks
or swords.  PW5 Dr. Dinesh Kumar examined the injured PW11 Dagadu and  found
10 injuries which included eight incised wounds, two  injuries  on  Gopinath
Mahadev Koyale, one contused wound on PW18 Chaturbhuj Khade, three  injuries
on Murlidhar Yeshu Kshirsagar.  He also  found  one  incised  wound  on  the
right forearm of accused No.5 Sandipan Sakharam.  He found two  injuries  on
Bibhishan PW15.
10.   The prosecution relied upon the eye witness account rendered  by  PW10
Satyabhama, PW11 Dagadu, PW15 Bibhishan Kshirsagar, PW18  Chaturbhuj  Khade,
PW12 Kernath Koyale. PW2 Shivaji Fuge, PW3 Yuvraj Koyale,  PW7  Bhimrao  and
PW9 Bhimrao Dhavale are witnesses  to  the  recovery  in  pursuance  of  the
statements under Section 27 of the Evidence Act.   The  Chemical  Analyser’s
report was also produced about the blood group  on  some  of  the  recovered
articles.
11.   The trial Court  rejected  the  prosecution  version  inter  alia  for
following reasons :
(i)   Recovery was not admissible as the location of the articles  recovered
was already known;
(ii)  There was inordinate  delay  in  sending  the  case  property  to  the
Chemical Analyser and possibility of tempering was not ruled out;
(iii) There was  inconsistency  in  the  evidence  of  PWs  Kernath  Koyale,
Bibhishan Vithoba Khadle and Chaturbhuj Khade in the manner of  assault  and
the weapon used;
(iv)  The prosecution did not examine Indubai and Gopinath;
(v)   Motive was not established as there was no immediate election  of  the
Panchayat or of the Cooperative Society;
(vi)  There was improvement in the version initially  given  to  the  police
and the version put forward before the Court; and
(vii) All the material witnesses are either related or otherwise  interested
and their testimony could not be accepted in  absence  of  corroboration  in
material particulars.

12.   The High Court observed that acquittal by the trial  court  was  based
on omissions and contradictions which were not material and did  not  affect
the veracity of the prosecution case.   Thus,  the  trial  Court  adopted  a
“totally perverse approach”.  It was observed :
“32. It is true that there are contradictions  and  omissions  but  none  of
them, according to  us,  is  vital  or  material.  They  are  regarding  the
particulars. When 7/8 persons are injured and assailants are about 16,  then
these omissions are bound to  be  there.  They  are  natural  omissions  and
contradictions and the most important fact that  wipes  out  the  effect  of
these contradictions and omissions is that many persons  from  the  side  of
complainant had received injuries, so also accused No.5.
33.   This is not a case of exercising the right  of  self  defence  of  the
accused. No such plea was  raised  before  us  nor  from  the  case  of  the
prosecution any such  plea  can  be  permitted  to  be  raised  directly  or
indirectly by the accused. The accused are aggressors.  They  have  launched
attack while persons from the complainant’s side had assembled to  celebrate
their Diwali.  Vasti was set to fire.  Bibhishan  Khade  died  in  the  said
attack and many persons from the side of complainant had received  injuries.
The assault was by deadly weapons  like  sword,  barchi,  knife,  gupti  and
sticks. This was, therefore, not a case of clear cut acquittal  of  all  the
16 accused.    No  further  corroboration  is  necessary.  Investigation  is
prompt  and  swift  and  even  if  other  evidence  regarding  recovery   of
incriminating articles is not  considered,  the  oral  evidence  and  ocular
evidence of the aforesaid witnesses i.e. P.W.10, 11, 12, 13, 15 and  18  and
others  discussed  by  us  including  those  two  doctors  fully  prove  the
prosecution case. The findings of the trial Court are totally  perverse  and
therefore this appeal is required to be allowed,  but  to  what  extent  and
against which of the accused is the question.  The  close  scrutiny  of  the
evidence of eye witnesses particularly P.W.10, 11,  15  and  18  shows  that
P.W.10 has  implicated  accused  Nos.1,2,3,5,6,7,  10  and  11.  P.W.11  has
implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11,  accused  No.3
set fire to the Vasti. P.W.15 has  implicated  accused  Nos.1,2,3,4,5,6,  10
and 11. P.W. 18 has implicated accused  Nos.1,2,3,5,6,7   and  according  to
him, accused No.3 set fire to the Vasti. Presence of accused  No.5  Sandipan
at the spot is fully proved, apart  from  other  evidence,  because  of  the
injuries suffered by him. There are  in  all  16  accused.  Considering  the
aforesaid evidence, this appeal against  acquittal  has  to  be  allowed  in
respect of accused Nos.1,2,3,4,5,6,7, 10 and  11,  and  their  acquittal  is
required to be set aside. So far as accused Nos.8,9,12,13,14,15 and  16  are
concerned, their acquittal  is  required  to  be  upheld.  Undoubtedly,  the
accused Nos.1 to 7 and 10 and 11 had formed  an  unlawful  assembly  with  a
common object of launching an assault. The house or vasti of Dagadu was  set
to fire. In the attack Bibhishan Khade  died  and  P.W.11,  15  and  18  and
others received injuries by deadly weapons. Therefore, for causing death  of
Bibhishan Khade the accused are required to be  held  guilty  under  Section
302 read with Section 149 of the Indian Penal Code and  for  causing  severe
injuries to  the  aforesaid  prosecution  witnesses  and  others,  they  are
required to be held guilty under Sections 324 and 326 r/w 149 of the  Indian
Penal Code. So far as offence under Section 436 of the Indian Penal Code  is
concerned, the evidence of the   prosecution  witnesses  is  not  consistent
and, therefore, nobody can be convicted under that section.”
13.   We have heard learned counsel for the appellants on the  one  hand  as
also learned counsel for the State and the  complainant  on  the  other  and
with their assistance, gone through the material on record.
14.   Main contention raised  on  behalf  of  the  appellants  is  that  the
judgment of acquittal rendered by the trial Court was certainly  a  possible
view on appreciation of evidence and the High Court could  not  reverse  the
same as there was no perversity.  The High Court  has  not  fully  discussed
the evidence nor dealt with the reasons recorded  by  the  trial  Court  for
rejecting the prosecution version.  There was no explanation for the  injury
suffered by accused No.5.  There are omissions  and  contradictions  in  the
version of the prosecution witnesses.  In the first version given by PW  12,
the accused have not been named and instead of recording  the  said  version
as FIR, it was on belated statement of PW 10 which was an  improved  version
that the FIR was registered.  The omissions in the  statement  made  to  the
police amount to contradictions as per explanation to  Section  162  Cr.P.C.
Thus, the evidence of eye witnesses PWs10,  11,  12,  15  and  18  has  been
rightly rejected by the trial court and could not  be  relied  upon  by  the
High  Court.   Since  there  was  enmity  between  the  parties,  there  was
possibility of exaggeration and false implication and it  was  not  safe  to
convict the appellants.  It was also submitted that since the  incident  was
28 years old, some of the appellants have become very old and ought  not  to
be convicted at this stage.  Reliance has been placed on  the  judgments  of
this Court in Padam Singh versus  State  of  U.P.[1],  Devatha  Venkataswamy
versus Public Prosecutor, High  Court  of  A.P.[2],  Narendra  Singh  versus
State of M.P.[3], Prasanna Das versus  State  of  Orissa[4],  Majjal  versus
State of Haryana[5], Lalita Kumari versus Govt. of U.P.[6], and  Baby  alias
Sebastian  versus Central Inspector of Police[7].
15.   On the other hand, learned counsel for the State and the  complainant,
supported the judgment of the High Court and pointed out  that  the  reasons
for acquittal by the trial court were perverse and the High Court  has  duly
dealt with the said reasons  and  found  them  to  be  perverse.   There  is
consistent evidence of injured eye witnesses which could not  be  altogether
brushed  aside.   Contradictions  and  omissions  which  are  not  vital  or
material are bound to be there in every case.  The same did not  affect  the
credibility of the main version that the accused caused  the  death  of  the
deceased and injuries to six persons on the complainant side.   The  accused
formed unlawful assembly and action of even one accused  in  prosecution  of
common object of the unlawful assembly or which was known to  likely  to  be
so committed was action of all the accused in law.  It was not necessary  to
prove individual role of different accused.   The  information  by  PW12  on
telephone was cryptic and could not be treated as FIR.  Therein though  name
of accused No.5 was  mentioned  and  it  was  further  stated  that  he  was
accompanied by others also, other details were not mentioned.  This was  not
at par with the statement to be recorded by the officer  in  charge  of  the
Police Station under Section 154 CrPC which can be treated  as  FIR.   Thus,
the telephonic message could not be treated as FIR.  The statement of PW  10
made in the Police Station has  rightly  been  treated  as  FIR.   The  said
statement was prompt and could not be treated as an improved version.    The
statement was corroborated by sworn testimony  of  the  author  of  the  FIR
before the Court which has been corroborated in all material particulars  by
four other injured witnesses.  Thus, the evidence on record fully  warranted
conviction of the appellants and no interference  was  called  for  by  this
Court.  Reliance has been placed on the judgments of this Court  in  Damodar
versus State of Rajasthan[8],  Mano  Dutt  &  Anr.  Versus  State  of  Uttar
Pradesh[9], Sanjeev versus State of Haryana[10], A. Shankar versus State  of
Karnataka[11], State of Karnataka versus Suvarnamma & Anr.[12],  Bava  Hajee
Hamsa versus State of Kerala[13], Patai Alias  Krishna  Kumar  versus  State
U.P.[14], Ravishwar  Manjhi  versus  State  of  Jharkhand[15],  T.T.  Antony
versus State of Kerala[16].
16.   We  have  given  due  consideration  to  the  rival  submissions.  The
question for consideration is  whether  the  High  Court  was  justified  in
reversing  the  acquittal  of  the  appellants  on  the  basis  of  evidence
available on record.
17.   Before considering this aspect  with  reference  to  the  evidence  on
record, we may advert to the settled principles  of  law  dealing  with  the
issues arising in the present case.  The  approach  to  be  adopted  by  the
court generally in appreciating the evidence in a criminal case as also  the
approach of the appellate court is discussed in several  decisions  of  this
Court, some of which have been cited by learned counsel for the parties.
18.   It is accepted principle of criminal jurisprudence that the burden  of
proof is always on the  prosecution  and  the  accused  is  presumed  to  be
innocent unless proved guilty.   The  prosecution  has  to  prove  its  case
beyond reasonable doubt and the accused is entitled to the  benefit  of  the
reasonable doubt.  The reasonable doubt is one which  occurs  to  a  prudent
and reasonable man.  Section 3 of the Evidence Act refers to two  conditions
– (i) when a person feels absolutely certain of a  fact  –  “believe  it  to
exist” and (ii)  when  he  is  not  absolutely  certain  and  thinks  it  so
extremely probable that a prudent man would, under  the  circumstances,  act
on the assumption of its existence.  The doubt which  the  law  contemplates
is not of a confused mind but of prudent man who is assumed to  possess  the
capacity to “separate the chaff from the grain”.  The degree of  proof  need
not reach certainty but must carry a high degree of probability[17]
19.   While appreciating the evidence of a witness, the court has to  assess
whether read as a whole, it is truthful.  In doing  so,  the  court  has  to
keep in mind  the  deficiencies,  drawbacks  and  infirmities  to  find  out
whether such discrepancies shake the truthfulness.  Some  discrepancies  not
touching the core of the case are not enough to reject  the  evidence  as  a
whole.  No true witness can escape  from  giving  some  discrepant  details.
Only when discrepancies are so incompatible as to affect the credibility  of
the version of a witness, the court may reject the  evidence.   Section  155
of the Evidence Act enables the doubt to  impeach  the  credibility  of  the
witness by proof of former  inconsistent  statement.   Section  145  of  the
Evidence Act lays down the procedure for contradicting a witness by  drawing
his attention to the part of the previous statement which is to be used  for
contradiction.  The former statement should have the effect of  discrediting
the present  statement  but  merely  because  the  latter  statement  is  at
variance to the former to some extent, it is not enough to be treated  as  a
contradiction. It is not every discrepancy  which  affects  creditworthiness
and trustworthiness of a witness.  There may at  times  be  exaggeration  or
embellishment not affecting credibility. The court has  to  sift  the  chaff
from the grain and find out the truth.  A statement may be  partly  rejected
or partly accepted[18].  Want of independent witnesses or  unusual  behavior
of witnesses of a crime is not enough to reject evidence.  A  witness  being
a close relative is not enough to reject his testimony if  it  is  otherwise
credible.  A relation may not conceal the actual culprit.  The evidence  may
be closely scrutinized to assess  whether  an  innocent  person  is  falsely
implicated.  Mechanical rejection  of  evidence  even  of  a  ‘partisan’  or
‘interested’ witness may lead to failure of justice.  It is well known  that
principle  “falsus   in   uno,   falsus   in   omnibus”   has   no   general
acceptability[19]. On  the  same  evidence,  some  accused  persons  may  be
acquitted while others may be convicted, depending upon the  nature  of  the
offence.  The court can differentiate the  accused  who  is  acquitted  from
those who are convicted. A witness may be untruthful  in  some  aspects  but
the other part of the evidence may be worthy of  acceptance.   Discrepancies
may arise due to error of observations, loss  of  memory  due  to  lapse  of
time, mental disposition such as shock at the  time  of  occurrence  and  as
such the normal discrepancy does not affect the credibility of a witness.
20.   Exaggerated to the rule of benefit of doubt can result in  miscarriage
of justice.  Letting the guilty  escape  is  not  doing  justice.   A  Judge
presides over the trial not only to ensure that no innocent is punished  but
also to see that guilty does not escape.[20]
21.   An offence committed in prosecution of common object  of  an  unlawful
assembly by one person renders members  of  unlawful  assembly  sharing  the
common object vicariously liable for the offence.  The common object has  to
be ascertained from the acts and language of the  members  of  the  assembly
and all the surrounding circumstances.  It can be gathered from  the  course
of conduct of the members.  It is to be assessed keeping in view the  nature
of the assembly, arms carried  by  the  members  and  the  behavior  of  the
members at or near the scene of incident.  Sharing of  common  object  is  a
mental attitude which is to be gathered from the act of a person and  result
thereof.  No hard and fast rule can be laid down as to  when  common  object
can be inferred.  When a crowd of assailants  are  members  of  an  unlawful
assembly, it may not be possible for witnesses to  accurately  describe  the
part played by each one of the assailants.  It may  not  be  necessary  that
all members take part  in  the  actual  assault[21].   In  Gangadhar  Behera
(supra), this Court observed :
“25. The other plea that definite  roles  have  not  been  ascribed  to  the
accused and therefore Section 149 is not applicable, is untenable.  A  four-
Judge Bench of this Court in Masalti case [AIR  1965  SC  202]  observed  as
follows:
“15. Then it is urged that the evidence given by the witnesses  conforms  to
the same uniform pattern and since no specific part is assigned to  all  the
assailants, that evidence should not  have  been  accepted.  This  criticism
again is not well founded. Where a crowd of assailants who  are  members  of
an unlawful assembly proceeds to commit an offence of  murder  in  pursuance
of the common object of the unlawful assembly, it is often not possible  for
witnesses to describe  accurately  the  part  played  by  each  one  of  the
assailants. Besides,  if  a  large  crowd  of  persons  armed  with  weapons
assaults the intended victims, it may not be  necessary  that  all  of  them
have to take part in the actual assault. In the present case, for  instance,
several weapons were carried by different members of the unlawful  assembly,
but it appears that the guns were  used  and  that  was  enough  to  kill  5
persons. In such a case, it would be unreasonable to  contend  that  because
the other weapons carried by the members of the unlawful assembly  were  not
used, the story in regard to the said weapons  itself  should  be  rejected.
Appreciation of evidence in such a complex case  is  no  doubt  a  difficult
task; but criminal courts have to do their best in dealing with  such  cases
and it is their duty to sift the evidence carefully and  decide  which  part
of it is true and which is not.”

22.   We have referred to the above settled principles as  the  trial  court
has adopted perverse approach in rejecting the  entire  evidence  comprising
of injured eye witnesses when one person has  been  killed  and  six  others
have been  injured.   The  trial  court  ignored  the  above  principles  by
mechanically rejecting the evidence of all the witnesses by finding  one  or
the other contradiction.  The  occurrence  has  taken  place  in  broad  day
light.  One of the accused himself mentioned about the enmity on account  of
the panchayat election.  The said accused himself is  injured  which  proves
his presence at the scene of the occurrence.   This  version  further  shows
the presence of deceased and the injured.  But his version fails to  explain
as to why the deceased would have been killed by PW11 when the deceased  was
the messenger of PW11 himself.  Except for some contradictions, the  version
of eye witnesses PWs 10, 11, 15, 12 and  18  is  consistent.   There  is  no
reason to reject the said version.  Of course, the court has to be  cautious
in appreciating evidence and rule out exaggeration.
23.   We may also note that version of A5 is  not  probable  and  mere  fact
that injury on him is not explained is not enough to reject the  prosecution
version.  In such a case, the  Court  is  to  examine  whether  evidence  is
trustworthy.  This aspect has been repeatedly examined  by  this  Court  and
settled law is that non explanation of injuries on accused is  an  important
circumstance which requires the court to satisfy itself  that  true  version
is not suppressed and whether  defence  version  is  probable[22],[23],[24].
This by itself is not enough to reject the prosecution case.
24.   To demonstrate that the approach of  the  trial  court  is  outrightly
perverse, some of the observations are put in :
“ But in general terms she  has  stated  that  accused  came  with  weapons.
Similarly it is admitted by her during the cross-examination  that  she  has
not stated assault by particular accused on the person of  Bibhishan  Khade.
But she has stated in general terms that  Bibhishan  was  assaulted  by  the
accused.
Moreover it is to be noted that she has admitted that Dagadu  and  Bibhishan
were assaulted by said weapons like cutting a wood  by  an  axe,  sword  and
barchi.  But there is no piercing wound or  cut  injury  on  the  person  of
deceased Bibhishan as well as Dagadu.
Moreover it is in her complaint that she had been to the vasti of  Murlidhar
and Bibhishan Kshirsagar to hand over the break  fast  to  Dagadu.  But  the
evidence of PWs and Dagadu and other eye witnesses disclose  that  they  all
had been to the house of Murlidhar Kshirsagar for Diwali  snacks  and  there
Dagadu invited for meals in the noon time.   Hence,  all  the  eye-witnesses
mentioned above had been to the vasti of Dagadu.  But P.W. Dagadu,  Kernath,
P.W. Bibhishan Kshirsagar  and  P.W.  Chaturbhuj  disclose  that  they  were
called for the Diwali snacks and not for meals in the house  of  Dagadu.  It
is to noted that if Dagadu was invited for Diwali snacks  in  the  house  of
Murlidhar kshirsagar then there was  no  necessity  to  take  breakfast  for
Dagadu to the house of Murlidhar Kshirsagar.  Considering  all  the  aspects
the evidence of the complaint cannot be accepted. ”
25.   Similar is the appreciation by the trial  court  of  other  witnesses.
Since rejection of eye witness account is uncalled for, other reasons  given
by trial court are not sufficient to reject the prosecution case.   Even  if
recoveries or Chemical Analyzer’s report are  disregardedly  the  same  have
only corroborative value, prosecution case is established  by  credible  eye
witness account.  Mere fact  that  some  of  the  witnesses  have  not  been
examined is also of no consequence when credible evidence to prove the  case
has been produced.  We thus, find that the High Court rightly  reversed  the
trial Court judgment.
26.   One of the submission of learned counsel for the  appellants  is  that
telephonic message by PW12 recorded at the police station should  have  been
treated as FIR. We have been taken through the said message which is to  the
effect that A5 and other accused assaulted the complainant  party.   Learned
counsel relied upon the observation in Lalita Kumari (supra) to  the  effect
that a GD Entry can also be treated as FIR in  an  appropriate  case.   From
the said observation, it cannot be laid down that every GD  Entry  or  every
cryptic information must be treated as FIR.  In Anand Mohan versus State  of
Bihar[25] while referring to Section 154 Cr.P.C., this Court  observed  that
every cryptic information, even if not  signed  by  the  person  giving  the
information, cannot be treated as FIR.  The information should  sufficiently
disclose the nature of the offence and the manner in which the  offence  was
committed.  It was observed :
“50. In Sk. Ishaque v. State of Bihar [(1995)  3  SCC  392]   Gulabi  Paswan
gave a cryptic information at the police station to the  effect  that  there
was a commotion at the village as firing and brickbatting was going  on  and
this Court held that this cryptic information  did  not  even  disclose  the
commission of a  cognizable  offence  nor  did  it  disclose  who  were  the
assailants and such a cryptic statement of Gulabi Paswan cannot  be  treated
to be an FIR within the meaning of Section 154 CrPC.
51. Similarly, in Binay Kumar Singh v. State of Bihar  [(1997)  1  SCC  283]
information was furnished to the police in  Ext.  10/3  by  Rabindra  Bhagat
that the sons of late  Ram  Niranjan  Sharma  along  with  large  number  of
persons in his village had set fire to the houses and piles  of  straws  and
had also resorted to firing. This Court held that Ext. 10/3 is  evidently  a
cryptic information and is hardly sufficient to discern  the  commission  of
any cognizable offence therefrom.”

27.   Similar view has been taken by this Court  in  Damodar  (supra),  T.T.
Antony (supra), Patai Alias Krishna  Kumar  (supra)   and  Ravishwar  Manjhi
(supra).
28.   Learned counsel for the appellants also  criticized  the  judgment  of
the High Court by submitting that the principles laid down by this Court  in
Padam Singh (supra), Devatha Venkataswamy (supra), Narendra  Singh  (supra),
Prasanna Das (supra),  Majjal  (supra),  Lalita  Kumari  (supra),  and  Baby
(supra) for exercise of appellate jurisdiction have not been followed.   The
appellate court should deal with reasons for acquittal  and  interfere  only
if acquittal is perverse. There is no doubt about the proposition  that  the
appellate court has  to  arrive  at  an  independent  conclusion  about  the
credibility of the evidence and to re-appreciate the evidence to  arrive  at
a just conclusion.  If the appellate court is to  reverse  the  judgment  of
the trial court, the reasoning of the trial court has to be adverted to  and
reversal of acquittal is permissible only if the view of the trial court  is
not only erroneous but also unreasonable and perverse.  At  the  same  time,
the appellate court has full power to review the evidence and  to  reach  at
its own conclusion.  The appellate court can set aside the acquittal if  the
acquittal is not justified.  Of course, the appellate court has to  consider
the fact that the trial court has the benefit of  seeing  the  witnesses  in
the witness box and the presumption of innocence  is  not  weakened  by  the
acquittal.  If two reasonable conclusions  can  be  reached,  the  appellate
court should not disturb the finding of the trial  court.   In  the  present
case, the High Court has followed the above principles.
29.    In  Bava  Hajee  Hamsa  (supra)   while  approving  the  reversal  of
acquittal by the High Court, it was held  that  erroneous  approach  of  the
trial Court led to misdirection in appraising  the  evidence  and  the  High
Court was justified in rejecting the approach of  the  trial  court  and  in
analyzing the evidence in its own way.   This Court observed :
“30. We agree with the  High  Court  that  the  very  “scheme  of  approach”
adopted by the trial Judge was faulty and misleading. It led  to  aberration
and misdirection in appraising evidence, and vitiated his  conclusions.  The
learned trial Judge started correctly when on a broad look of the  evidence,
he found the evidence of PWs 1, 8 and 9 prima facie  acceptable.  But  after
the second lap of discussion, he became sceptical; and reversed his mind  at
the end of the third round  of  circumgyratory  discussion.  In  such  cases
where large number of  persons  are  involved  and  in  the  commotion  some
persons cause  injuries  to  others  and  the  evidence  is  of  a  partisan
character, it is often safer for the Judge of  fact  to  be  guided  by  the
compass  of  probabilities  along  the  rock-ribbed  contours  of  the  case
converging on the heart of the matter. Once the court goes astray  from  the
basic features of the case, it is apt to lose itself in  the  labyrinths  of
immaterial  details,  desultory  discussion  and  vacillation  arising  from
unfounded suspicions. This is exactly  what  has  happened  in  the  instant
case. Despite the pains taken and the conscentious effort put  in  to  write
an elaborate judgment, the trial Judge had, as it were, missed the wood  for
the trees. The learned Judges of the High Court were,  therefore,  right  in
discarding altogether the basically wrong “scheme of  approach”  adopted  by
the trial court, and in analysing the evidence in their own way.”

30.   As already observed, the discrepancies of trivial nature could not  be
the basis of rejecting the  evidence  of  injured  eye  witnesses  nor  non-
examination of some of the witnesses be a ground to reject  the  prosecution
case when injured eye witnesses were examined.
31.   We may also refer to the judgment of  this  Court  in  Masalti  versus
State of U.P.[26] to the effect that the  evidence  of  interested  partisan
witnesses though required to be carefully weighed, the  same  could  not  be
discredited mechanically.  When a crowd  of  unlawful  assembly  commits  an
offence, it is often not possible to accurately describe the part played  by
each of the assailants.  Though the appreciation of evidence in  such  cases
may be a difficult task, the court has to perform its duty  of  sifting  the
evidence carefully.
32.   Applying the above principles to the present case, it  is  clear  that
all the five eye witnesses have named A1 to  A7.   Other  accused  have  not
been named by PW11 and PW18.  By way of abundant caution,  we  give  benefit
of doubt to A10 and A11 for the reason that they  have  not  been  named  by
PW11 and PW18 and also for the reason  that  PW10  has  attributed  specific
role only to A1 to A7.  But as far  as  A1  to  A7  are  concerned  (A2  has
already died) all the five witnesses have consistently named  them.   A1  to
A7 have been assigned  specific  role  in  assaulting  the  deceased.  Their
conviction and sentence under Section 302/149 of the IPC has to  be  upheld.

33.   For the above reasons, this appeal is partly  allowed  to  the  extent
that appellant Nos.7 and 8 (Babu Rama Berad  and  Balu  Naradeo  Berad)  are
given benefit of doubt and are acquitted.  They be  released  from  custody,
if  not  required  in  any  other  case.   Appeal  of  other  appellants  is
dismissed.  However, appellant Nos.5 and 6  (Nivrutti  Sakharam  Koyale  and
Krishna Sakharam Koyale) will continue to remain on bail for one  month  and
if they make an application for remission of the remaining sentence  on  the
ground of advanced age within one month, they will  continue  to  remain  on
bail  thereafter  till  the  decision  of  the  said  application   by   the
appropriate authority. If their application for remission is  not  accepted,
they will surrender to serve out the remaining sentence.


                                                        ………………………………………………J.
                                                        ( V.  GOPALA GOWDA )



                                                        ………………………………………………J.
                                                       ( ADARSH KUMAR GOEL )


New Delhi;
october 04, 2016.
-----------------------
[1]
      [2] (2000) 1 SCC 621
[3]
      [4] (2003) 10 SCC 700
[5]
      [6] (2004) 10 SCC 699
[7]
      [8] (2004) 13 SCC 30
[9]
      [10] (2013) 6 SCC 798
[11]
      [12] (2014) 2 SCC 1
[13]
      [14] (2016) 7 Scale 444
[15]
      [16] (2004) 12 SCC 336
[17]
      [18] (2012) 4 SCC 79
[19]
      [20] (2015) 4 SCC 387
[21]
      [22] (2011) 6 SSC 279
[23]
      [24] (2015) 1 SCC 323
[25]
      [26] (1974) 4 SCC 479
[27]
      [28] (2010) 4 SCC 429
[29]
      [30] (2008) 16 SCC 561
[31]
      [32] (2001) 6 SCC 181
[33]
      [34]Vijayee Singh vs. State of U.P.- (1990) 3 SCC 190, Paras18, 28-30
[35]
      [36] Leela Ram vs. State of Haryana (1999) 9 SCC 525, paras 9 - 13
[37]
      [38]  Gangadhar Behera vs. State of Orissa (2002) 8 SCC 381 -para 15
[39]
      [40] Gangadhar Behera (supra), para 17
[41]
      [42] Gangadhar Behera (supra), paras 22-24
[43]
      [44] Vijayee Singh (supra), para 9
[45]
      [46] (2001) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing
[47]
      [48] (2012) 4 SCC 79-Mano Dutt vs. State of U.P.
[49]
      [50] (2012) 7 SCC 225
[51]
      [52] (1964) 8 SCR 133

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