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
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
