In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence. Even though alibi was not accepted - lack of corboration of Accused participation in the offence along with other accused as only one witness stated accused name in the re examination - even though non blood stained lathi was recovered at the instance of this accused - Still he is entitled for benifit of doubt. So far as the appellant Khemuram (A-8) is concerned, we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt. However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.

In the absence of Evidence of his presence and participation in the offence - mere recovery of blood stained lathi at the instance of Accused , not held him as Guilty of offence.

Even though alibi was not accepted - lack of corboration of Accused participation in the offence along with other accused as only one  witness stated accused name in the re examination - even though non blood stained lathi was recovered at the instance of this accused - Still he is entitled for  benifit of doubt.
So far as the appellant Khemuram (A-8) is concerned,
we find it difficult to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this accused Khemuram8 . The prosecution has not taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but his conviction cannot be based on this recovery alone. For want of cogent and convincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram (A-8) is entitled to the benefit of doubt and the findings in his relation cannot be sustained. 

As regards the appellant Lakhan (A-13), again, it is noticed that PW-5 Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh nor any other act of this accused has come on record which could connect him with the assembly in question and the place of incident. Thus, there had been want of corroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this  accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and no such specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is not accepted, as noticed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan (A-13) is also entitled to benefit of doubt.
However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the accused-appellants Khemuram (A-8) and Lakhan (A-13), who deserve to be acquitted on benefit of doubt.


REPORTABLE
 IN THE HON’BLE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1813 OF 2017
DULESHWAR & ANR. …APPELLANT(S)
 VS.
THE STATE OF M.P. (NOW CHHATTISGARH) …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 1815 OF 2017
AND
CRIMINAL APPEAL NO. 1814 of 2017
JUDGMENT
Dinesh Maheshwari, J.
Introductory with brief outline
1. These three appeals are directed against the common judgment and
order dated 12.09.2014, as passed by the High Court of Chhattisgarh at
Bilaspur in Criminal Appeal No. 3336/1999 whereby, the High Court has
upheld the judgment and order dated 26.11.1999 by the Additional Sessions
Judge, Dhamtari, Chhattisgarh in S.T. No. 114/1999, convicting and
sentencing the accused-appellants for multiple offences, including those
1
punishable under Sections 147, 148, 302/149 and 325 of the Indian Penal
Code (‘IPC’).
2. In a brief outline of the material aspects, it could be noticed that in the
present case, the appellants, seven in number, being Accused
Nos.1,2,5,7,8,12 and 131
 were tried together with several other co-accused
persons for the offences relating to the two incidents which took place in
village Kodebod, police station Kurud, district Dhamtari (M.P. – now
Chhattisgarh) on 15.10.1998: one at about 4.30-5.00 p.m., in which, the
Prosecution Witness No. 1 Dhanwaram2
 sustained grievous injuries; and
another at about 5.30 p.m., which led to the death of one Govind Singh. Out
of the 18 accused persons tried in this matter, 8 were acquitted by the Trial
Court, essentially after finding that the charges against them were not proved
beyond reasonable doubt. However, Bharosaram(A-1), Duleshwar(A-2),
Chintaram(A-4), and Vivekanand(A-9) were convicted for the offence under
Section 325 IPC for causing grievous hurt to PW-1 Dhanwaram. Moreover,
Bharosaram(A-1), Duleshwar(A-2), Chintaram(A-4), Bhanjan Singh(A-5),
Khemraj(A-6), Keshav Prasad(A-7), Khemuram (A-8), Nand Kumar (A-12) and
Lakhan(A-13) were convicted for the offences under Sections 147,148, 302
and 302/149 IPC for forming unlawful assembly, rioting with deadly weapons
and in furtherance of common object, causing death of Govind Singh by
inflicting several injuries. The convicted accused persons were awarded
1 Accused Nos. 2 and 12 are the appellants in Criminal Appeal No. 1813 of 2017; Accused Nos. 1, 8
and 13 are the appellants in Criminal Appeal No. 1814 of 2017; and Accused Nos. 5 and 7 are the
appellants in Criminal Appeal No. 1815 of 2017. Hereinafter, the respective appellants and other coaccused persons are also referred to as A-1, A-2 et al.
2 Hereinafter the Prosecution Witnesses are also referred to as PW-1, PW-2 et al.
2
varying sentences, including that of life imprisonment for the offence under
Section 302/149 IPC. Except Vivekanand (A-9)3
, other 9 accused persons
preferred an appeal to the High Court against their conviction and sentence. A
revision petition was also filed by the complainant against acquittal of the
remaining accused persons. The High Court, however, found no ground to
interfere and hence dismissed the appeal as also the revision petition and
thereby, affirmed the decision of the Trial Court. As against the decision of the
High Court, Bharosaram(A-1), Duleshwar(A-2), Bhanjan Singh(A-5), Keshav
Prasad(A-7), Khemuram(A-8), Nand Kumar(A-12) and Lakhan(A-13) have
preferred these appeals. However, no such appeal is preferred on behalf of
the other convicted co-accused namely, Chintaram (A-4) and Khemraj (A-6).
2.1. Essentially, the conviction of the appellants under Section 302/149 has
been questioned in these appeals; and the principal ground of challenge is
that there is no cogent evidence about their involvement in the crime in
question. The reliability of evidence led by the prosecution has also been
assailed in these appeals apart from other contentions concerning the
surrounding factors. The relevant facts and background aspects could be
noticed, keeping in view the points arising for determination in these appeals.
The relevant facts and background
3. The prosecution case has been that a dispute in relation to the fields
and demarcation of ridge was going on between Biselal Sahu, brother of
Mangalram (A-14) and Dhanwaram (PW-1), brother of the deceased; and a
3 Vivekanand (A-9) was convicted only for the offence under Section 325 IPC and, as he was found
to be minor on the date of incident, was awarded lesser sentence of one year and three months.
3
civil case related to this dispute was also pending. Due to the enmity because
of this dispute, on 15.10.1998 at around 4.30-5.00 p.m., the accused persons
Bharosaram (A-1), Duleshwar (A-2), Chintaram (A-4), Khemraj (A-6),
Vivekanand (A-9), and Kedarnath (A-18) assaulted Dhanwaram (PW-1) with
different weapons and caused him injuries. Parvati Bai (PW-6), who was
passing by, saw the accused persons assaulting Dhanwaram; she ran
screaming and informed Khilawan (PW-7), son of the deceased, about the
incident that she had witnessed. Khilawan went to the place of incident with
Ram Dhruv (PW-17) and found Dhanwaram lying unconscious on the ground.
Khilawan and Ram Dhruv took Dhanwaram home. The accused persons, after
assaulting Dhanwaram, went in search of Govind Singh, brother of
Dhanwaram.
3.1. According to the prosecution, on the same day i.e., on 15.10.1998,
another incident took place at around 5.30 p.m. in which Bharosaram,
Chintaram, Khemraj, Bhanjan Singh, Khemuram, and other accused persons
assaulted Govind Singh near Kalley Bridge and inflicted upon him varying
injuries. When Santosh Kumar (PW-2) and Prahlad Yadav (PW-5) tried to
intervene in the matter, they were threatened by some of the accused persons
to stay away and else, they would also be done away with; and therefore, they
stepped back. Thereafter, two of the accused persons dragged the deceased
by his legs while the others kept on beating him with weapons; the deceased
4
was dragged to a faraway place towards the canal, where he succumbed to
his injuries.4
3.2. The report relating to the incidents was made to the police by Khilawan
(PW-7) at about 7.00 p.m. who narrated the aforesaid incident and alleged
that after hiring a jeep and upon search, he found the dead body of his father
across Kalley Canal with many injuries on his head, face, nose and whole of
the body. The complainant alleged that Mukesh Nirmalkar, Duleshwar,
Chintaram, Bhanjan, Khemraj, Keshav Prasad, Khemuram, Bharosaram,
Vivekanand, Vasudev, Chemanand, Garibram and some other persons did
marpeet with lathi danda to his father Govind Singh and uncle Dhanwaram
due to which, Govind Singh died and Dhanwaram sustained serious injuries.
On this report, FIR No. 186/1998 came to be registered and investigation was
undertaken.
3.3. During the investigation, police obtained the post-mortem report of the
deceased which confirmed that he succumbed to the injuries inflicted upon
him. The injury report of Dhanwaram was also obtained. The site plan was
prepared; tangiya, blood stained lathis, dandas, baniyans, lungis and shirts
were seized and the statements of the witnesses were recorded. As per the
chemical examination report of Assistant Chemical Examiner, Regional FSL
Raipur, some of the seized weapons and clothes were found to contain blood
4 It appears that on the same day and around the same time, but before the incident resulting in the
death of Govind Singh, yet another incident took place involving the deceased Govind Singh and
Mangalram (A-14). As per the statement of Tikuram Yadav (PW-16) at around 4.30 p.m., the
deceased Govind Singh came to his farm on bicycle of Mangalram (A-14) with injuries on hand and
head and on being asked by PW-16, the deceased told him that Mangal Patwari (A-14) had attacked
him with sword. On the other hand, Mangalram (A-14) lodged a report at the police station alleging
that Govind Ram attacked him with sword. On this report, FIR No. 185/1998 was registered.
5
stains. After completion of investigation, the charge sheet was filed in the
Court of Special Judge, Schedule Tribe Prohibition of Atrocities, Raipur
against 18 accused persons for causing rioting while being armed with deadly
weapons, for causing murder of Govind Singh, and for attempting to cause
murder of Dhanwaram. However, by the order dated 04.02.1999, the learned
Special Judge held that the matter was not to be proceeded in the Special
Court. Thereafter, the charge sheet was filed in the Court of Chief Judicial
Magistrate, Dhamtari; and being sessions triable matter, the same was
committed to the Sessions Court, Raipur and was ultimately tried in the Court
of Additional Sessions Judge, Dhamtari in S.T. No. 114 of 1999.
4. In the trial, the prosecution examined 21 witnesses being PW-1
Dhanwaram (the injured); PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4
Rajesh, PW-5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav as
being the alleged witnesses/eye-witnesses to the assault of Govind Singh;
PW-6 Parvati Bai, as being eye-witness to the assault of Dhanwaram; PW-7
Khilawan (the informant); PW-8 Daulal, PW-10 Nand Kumar and PW-11
Bhagatram, said to be the labourers working in the field of Tikuram who
allegedly saw the deceased Govind Singh in injured condition before the
assault in question; PW-12 Chandkishore, PW-13 Punarad Ram, PW-14
Reshamlal and PW-15 Dayaram as being the witnesses in the investigation
proceedings relating to preparation of inquest report or seizure memo or site
plan; PW-17 Ram Dhruv, the nephew of Khilawan who accompanied him to
police station; PW-18 Dr. Pradeep Hishikar, who conducted post-mortem; PW6
19 Dasrath Deycate Deputy Superintendent of Police, who recorded the
statements of some of the witnesses; PW-20 V.S. Urmaliya, the Investigating
Officer; and PW-21 Dr. V. Chaterjee, who examined the injured Dhanwaram
and prepared his injury report5
.
The evidence
5. Having regard to the contentions urged and questions involved, we may
briefly take note of the relevant aspects of the evidence of material witnesses
examined in this matter.
5.1. The injured witness PW-1 Dhanwaram, while supporting the
prosecution case, inter alia, stated that he fell prey to the beatings of Kedar,
Mangal, Khemraj, Duleshwar, Vivekanand and Bharosa. PW-6 Parvati Bai, the
eye-witness to the assault on Dhanwaram stated that the accused Mangal,
Gareeb, Chintaram, Bhanjan, Bharosa, Narad, Keshav, Lakshman and their
sons and daughter assaulted PW-1 Dhanwaram.
5.2. PW-2 Santosh Kumar, the eye-witness to the incident where Govind
Singh was assaulted stated that himself and Angad, Bhuvan Singh (PW-3),
Rajesh (PW-4) and Prahlad Yadav (PW-5) were present near the place of
incident where the accused persons, armed with danda, tangiya etc., started
arguing with the deceased Govind Singh; and when the witnesses tried to
intervene, they were threatened by the accused persons to keep away. He
also alleged that Bharosa and Chintaram held both the legs of the deceased
5 It may be noticed that PW-8, PW-9, PW-13 and PW-14 were declared hostile.
7
and dragged him towards canal while the other accused persons kept on
beating him. The relevant portion of the testimony of PW-2 reads as under: -
“…. At that time about 17-18 accused persons came from canal side.
All were carrying stick (danda). Someone carried hatchet as well. I
did not see any other weapon. They came and started argument
with Govind Singh. Someone among the accused person said that
uncle was assaulted and quarrelled. They told us to move away.
They told that Govind Singh had to be killed, on which all person
who were standing with me moved a side.
Thereafter, all the accused person together started assaulting by
stick. Due to assault Govind Singh died on the place of occurrence.
At the beginning we had tried to intervene but later on we did not try
to intervene. Bharosa Ram and Chinta caught both legs of Govind
and dragged him, others were going beating him….”
5.3. PW-3 Bhuwan stated that the accused persons came towards Kodebod
Canal, stopped near culvert and asked about Govind Singh; and though he
expressed want of knowledge, the accused persons saw Govind Singh near
culvert and assaulted him. This witness further stated that during the said
attack, when Govind fell down, he was dragged by holding his legs and while
being dragged, the other accused persons kept on beating him. In crossexamination, this witness stated that he did not know the names of the
accused persons and he did not disclose their names to the police nor could
say who assaulted on which part of the deceased. The relevant part of the
testimony of PW-3 reads as under: -
 “.…. I was near the culvert, it was 5:00pm, Santosh, Prahlad,
Rajesh and Nandlal were also with me. At that time accused person
came towards Kodebode canal and stopped near the culvert. They
asked me about Govind’s address. I replied, I do not know. At the
same time they saw Govind near the culvert. They ran towards
Govind, started assaulting him. All the accused person carried lathi
8
in their hand. They were assaulting Govind with lathi itself. Due to
assault Govind fell down, at that time two persons caught his leg and
dragged him towards canal, other were going beating him.”
xxx Cross-examination
“ I do not know name of any of the accused person. In my police
statement I did not tell the name of any of the accused person. Who
assaulted on which part of the deceased, I can not tell. It is true that
in my police statement I stated that 20-25 people came with lathi….”
5.4. PW-4 Rajesh stated that on the date of incident, in the evening, while
fishing in canal he heard the noise of quarrel whereupon he ascended the
boundary of the canal and saw 15-20 persons attacking Govind Singh; two
persons were dragging Govind Singh by legs across the canal while others
kept on beating him; one or two persons were carrying tangiya and rest were
holding lathi. The witness also stated that Santosh and Prahlad went to
intervene but were asked not to intervene. This witness further stated in crossexamination that he did not know the names of accused persons and that he
did not intervene.
5.5. Prahlad Yadav, examined as PW-5, is the star witness in this case who
narrated the incident of assault on Govind Singh and specifically stated the
names of some of the accused persons. Being the material witness whose
testimony has largely formed the basis of conviction, the material parts of his
deposition could be usefully extracted as under:
“… On 15.10.98 at 5.20 pm. I was near the Kulley Bridge. Santosh,
Heeradhar, Bhuwan, Nandlal and Rajesh were with me. At the very
moment accused persons came towards canal and road side.
Govind Singh was also standing near the Kulley Bridge. Accused
persons abused him. They were saying that Govind Singh has come
after fighting. He has to be killed and they started assaulting. All the
accused person carried lathi. They assaulted by danda. When I went
9
there and forbade them to fighting. They stopped fighting.
Thereafter, Bharosa, Nand, Chinta, Bhanjan came to me and told
“You move away, otherwise you will be killed” Then I moved away
from there. Govind Singh fell down, Bharosa caught his one leg and
Chinta caught another leg, they dragged Govind to Kodebode from
canal and other were going by beating him. I followed them from
some distance. The accused persons dragged Govind Singh for 2
Km. Thereafter, I returned home. Govind Singh had died…”
xxx Cross-examination
“…Except Mangal, I saw all the accused person at the time of
incident. It is true that Kalley turning is 2½ Km. away from
Kodebode. The barn of Tikaram is 1½ Km. away from Kalley turning.
It is wrong to say that the matter of dragging by the leg by Bharosa
and Chinta is being wrongly stated by me. The sticks hit the
deceased at one time therefore I cannot tell which accused hit him
on which part. I stated name of 7-8 persons. The quarrel went on for
10 minutes. I noted down the time and date of the incident. At
present it is not with me. It is wrong to say that today the statement
was read over to me. At the time of incident Santosh and I forbade
them to fight. The accused person reached on Kalley Bridge
altogether but they came from different direction...”
Re-examination
“I stated name of Bharosa, Chinta, Bhanjan, Gareeb, Lakhan,
Khemraj, Hemu, Keshav and Nand. I recognize the remaining
accused person by face. I know such persons by name only.
xxxRe-cross-examination
I do not know if more persons named Chintaram, Keshav may be
there. I know that Keshav is tailor but I did not state this to the
police……..
At the time of recording of my police statement Ex-D/5 I stated that
the accused persons came at the place of incident from different
direction. I can not tell which of the accused came from which
direction. The witness himself stated that all the accused persons
gathered at the place of incident.
…… It is true that my field is adjacent to the field of Chintaram and
Gareeb Ram. It is wrong to say that I want to purchase their fields
therefore I am implicating them….”
10
5.6. PW-9 Hiradhar partly narrated the prosecution story but did not support
the entire prosecution case and hence, was declared hostile. However, before
being declared hostile, this witness, inter alia, stated as under:
“I know the accused persons present in the court. I also know
deceased Govind Singh. … I was taking tea with Kheduram in a
hotel near the Kalley Bridge. At that time Angad Sahu who belong to
Kode bode came there and asked me if I had seen Govind. I told
him I did not see him. At the very moment I saw that Govind came
from somewhere and stood there. At that time I went near Govind
and told that Angad was searching him. He did not give any reply.
Seeing blood on his cloths I asked him how his clothes had got
stained with blood. What happened? He did not give any reply.
At the very moment Santosh Satnami came and stood before
Govind Singh, Prahlad also came there. When we stood there at
that time accused persons who were resident of my village reached
there. I asked Khemraj what happened, then Khemraj told that
Govind has come beating Patwari, Duleshwar, the son of Patwari
also stated the same. Santosh and Prahlad told them to stop don’t
do anything here, saying that “we will not stop” the accused persons
proceeded. Khemraj and Duleshwar gave one-two lathi blow to
Govind due to which he fell down on the earth. Seeing this I got
afraid and went near Kheduram who was present in shop. He told
lets move from here and immediately we moved from there.
Thereafter, what happened I did not see.
xxxCross-examination for accused
…I stated the matter of Govind being interrogated by Angad to the
police, if police did not record I can not tell the reason. I saw blood
stain on the clothes of the deceased, I stated this to the police. I did
not see any injury on the body of Govind. I stated to police the
matter of being told by Khemraj and Duleshwar about Govind Singh
beating the Patwari and coming. I stated that Khemraj and
Duleshwar assaulted Govind Singh by lathi to the police. If police did
not record the statement as per my version I can not tell the reason.
I did not see Mangalram, Narad, Laxman, and Kedar there. I did not
see even Lakhan committing marpit. …..”
5.7. PW-16 Tikuram Yadav stated that at about 4:30 p.m., Govind Singh
came to his barn on the bicycle belonging to Mangal Patwari and he saw
11
injuries on the persons of Govind Singh who said that Mangal Patwari had
assaulted him by sword. According to this witness, Govind Singh demanded
two hundred rupees which he did not give and thereafter, Govind Singh
proceeded towards bus stand. The witness further stated that later on, he saw
the assault on Govind Singh from a faraway place and, therefore, he was
unable to recognize the assailants; and later on, he got to know from his
locality that deceased Govind Singh was assaulted by Bharosa, Chinta, Garib
and their friends.
5.8. PW-8 Daulal, PW-10 Nand Kumar and PW-11 Bhagatram saw Govind
Singh in injured condition after the alleged attack by Mangalram on him. PW13 Punarad Ram and PW-14 Reshamlal had been the witnesses to seizure
proceedings in Ex.P/13 to P/27. They were declared hostile. While admitting
their signatures Ex.P/13 to P/27, they stated that they were shown sticks etc.
but were not told from whom they were seized.
5.9. PW-18 Dr. Pardeep Hishikar conducted post-mortem on the body of the
deceased Govind Singh. The description in the post-mortem report regarding
the injuries on the person of deceased Govind Singh had been as under-:
“1. Two contusions over chest like chain mark size of each (a)
5”x 1” (b) 4” x 1”.
2. Contusions over abdomen colour brownish blackish size of
them (a) size of two contusions 5” x 1” (b) size of two
contusions 3” x ½” transverse (c) two contusion size 3” x ½”
transverse (d) one contusion size 8” x 1” vertical.
3. Contusions over medial aspect of right thing colour blackish
brownish sizes (a) 7” x ½” (b) 5” x ½” (c) 2” x ½” (d) 2” x ½”
12
4. Contusions over lethal aspect, right thing, blackish brownish
colour.
5. Contusions over front of knee size 4” x 2” blackish brownish
colour.
6. Lacerated wound over base of 2nd and 3rd toe left side 1cm
x ½ cm x ½ cm clotted blood ++
7. Contusion over front of knee left size 1cm x 1cm.
8. Lacerated wound over left wrist size 1” x ½” x ½” bone deep
fracture lower third radius ulna left side.
9. Fractured proximal phalanx index and middle finger left and
fracture 2nd and 4th metacarpal bone left side.
10. Contusion dorsal aspect forearm size 1” x 1” and abrasion
back of left elbow size 4 cm x 4 cm.
11. Two lacerated wound over dorsal aspect right wrist sizes of
each 1cm x 1cm x 1cm. Fracture lower third radius.
12. Fracture proximal phalanx middle and ring finger and fracture
of 2nd and 3rd metacarpal right ulna.
13. Abrasion dorsal aspect elbow size 5cm x 4cm colour pinkish
brownish.
14. Lacerated wound over right side face over cheek size 3 cm x
1 cm x 1 cm.
15. Lacerated wound over right side face over cheek size 3 cm x
1 cm.
16. Contusion left side face size 3 cm x 2 cm colour blackish
brownish.
17. Lacerated wound mid portion of nose size 3 cm x ½ cm x ½
cm. Fracture of nasal bone.
18. Lacerated wound over scalp right parietal region size 3” x ½”
x ½” liner fracture over right parietal bone.”
This witness opined that the cause of death was shock, which may be
due to sudden rupture of liver and fracture of ribs of right and left sides; and
that the death was homicidal in nature.
6. On the other hand, the accused persons denied their involvement in the
crime in question in their statements under Section 313 Code of Criminal
13
Procedure, 1973 (CrPC) and examined 5 witnesses in defence, being DW-1
Latkhor who accompanied A-14 Mangalram to police station; DW-2 Dilip
Kumar, DW-3 Barsan, DW-4 R.L. Chandrakar and DW-5 Dinesh Kumar in
relation to the plea of alibi of A-12 Nand Kumar, A-13 Lakhan, A-18 Kedar and
A-17 Narad respectively.
 The findings of the Trial Court – as affirmed by the High Court
7. Having taken the evidence and having heard the parties, the Trial Court
framed as many as six points for determination in this case which read as
under:-
“1) Whether Govind Singh Netam has been murdered?
2) Whether attempt has been made to commit murder of
Dhanwaram Netam?
3) Whether the accused persons have committed the said act
by forming an unlawful assembly and committing riot and
abetted the commission of aforesaid act in furtherance of
common intention?
4) Whether accused persons had intention to commit murder of
Govind Singh and Dhanwaram?
5) Whether accused persons are guilty of rioting being armed
with deadly weapons?
6) If yes, then punishment.”
 7.1. In its judgment and order dated 26.11.1999, the Trial Court carried out
in-depth analysis of the prosecution evidence including the testimony of
injured witness PW-1 as also of the other witnesses, particularly the
witnesses to the incidents in question being PW-2, PW-3, PW-4, PW-5, PW-6,
PW-9, PW-16 as also the medical officers PW-18 and PW-21. The Trial Court
also examined the evidence adduced by the accused persons and thereafter,
14
found the prosecution case proved beyond reasonable doubt against some of
the accused persons including the present appellants but not in relation to all
the accused persons. The conclusions of the Trial Court, as occurring in
paragraphs 44 to 48 of the judgment dated 26.11.1999 could be usefully
reproduced as under:
“44…. There is no proof of intention to cause death of Dhanwaram
because the injuries sustained by Dhanwaram were found on his
palm, right side of head, left arm, jaw and back out of which fracture
was found in jaw, hand and wrist. No serious injury was found on
any vital part of the body. Therefore the aforementioned injuries
were not sufficient in the ordinary course of circumstances to cause
the death of Dhanwaram. In the evidence of Dhanwaram PW/1 there
is no such statement that the accused persons wanted to kill him at
the time of the incident….. According to the aforesaid, there is
evidence that after causing injury the accused persons left from the
place. Therefore, in this circumstance only this conclusion can be
drawn that the intention of the accused Bharosaram, Chintaram,
Duleshwar and Vivekanand was merely to inflict injuries on
Dhanwaram. It is proved that Dhanwaram is severely injured and the
same is knowingly or intentionally committed by the accused
persons that on attacking Dhanwaram, he will be injured. Therefore,
they have committed this act voluntarily. Hence, accused
Bharosaram, Chintaram, Duleshwar and Vivekanand voluntarily
caused grievous hurt to Dhanwaram by doing maarpet…
45. The evidence with regard to rioting armed with deadly weapons
is considerable. The incident of causing death of Govind Singh is
considered as riot. The witness of incident Santosh PW/2 stated
that one of the accused was having a tangiya. Bhawan Singh PW/3
stated that all accused were having laathi. Rajesh PW/4 stated that
1-2 persons were having tangiya and all the others were having
laathis. Prahlad PW/5 did not make any specific statement in this
regard. Heeradhar PW/9 stated that only laathis were used. There
is no evidence of using sword by any accused and no injury inflicted
by any sharp weapon sword or tangiya is found on the body of the
deceased. Therefore, it can be concluded that all the accused
persons were laced with laathis. Whether laathi is dangerous
weapon or not, it can be considered under the circumstances in
which it is used. As in the case in hand, by the use of laathis such
injuries were inflicted by which death of Govind Singh was caused,
hence, it appears that the accused possessed laathis for the
purpose of causing grievous hurt. Hence it is proved that the named
15
accused persons being members of unlawful assembly committed
riots by keeping laathi as dangerous weapons and caused death of
Govind Singh.
 46. After considering the aforesaid evidence and all the other
circumstances, it is concluded that the accused no. 1 Bharosaram,
no. 2 Duleshwar, no. 4 Chintaram, no. 5 Bhajan Singh, no. 6
Khemraj, no. 7 Keshavprasad, no. 8 Khemuram, no. 12 Nand
Kumar, no. 13 Lakhan on 15/10/1998 at around 5 PM by forming
unlawful assembly laced with laathis as dangerous weapons,
committed riot and whose common object was to cause death of
Govind Singh and in furtherance of their common objective, the
death of Govind Singh has been caused near Kalle Bridge by each
of the accused by inflicting severe inuries with laathis. Hence, the
offence under Sec. 147, 148, 302 and 302 read with 149 of IPC is
found to be proved against the aforesaid accused persons.
47. The charge under Sec. 307 of IPC is not proved, but the
circumstances under the aforesaid charge which have been brought
on record prove a lesser offence under Sec. 325 of IPC. Such
conviction can be ordered under under Sec. 222 of CrPC. Hence,
the accused Bharosa, Chintaram, Duleshwar and Vivekanand are
held guilty for the offence under Sec. 325 of the IPC for causing
grievous hurt to Dhanwaram.
48. In the case in hand, no charge has been proved against rest of
the accused persons namely, Mukesh Nirmalkar, Vasudev,
Chemanand, Mangalram, Gareeb ram, Lakshman Singh, Naradram
and Kedarnath. Therefore, all the above accused persons are
acquitted for all charge leveled against them under Sec. 147, 148,
302 or 302 read with 149, 307 or 307 read with 149 of IPC. The
accused persons amongst the aforesaid who are in custody be
released forthwith if not required in any other case and their bail
bonds stands cancel.”
7.2. As noticed, the convicted accused persons, except Vivekanand (A-9),
were awarded varying sentences, including that of life imprisonment.
Vivekanand (A-9) was found to be minor at the time of incident and he was
sentenced to one year and three months while noticing that he had already
undergone the sentence for a period of 405 days.
8. Against the aforesaid order of conviction, the appellants and other
convicted accused preferred Criminal Appeal No. 3336 of 1999 before the
16
High Court, whereas the complainant preferred a Criminal Revision No. 517 of
2000 against the acquittal of the other accused persons. While passing the
common judgment and order dated 12.09.2014, the High Court, after dealing
with the contentions urged on behalf of the appellants herein and the coaccused, affirmed the decision of the Trial Court and held that no defence had
been taken by the accused persons that they had gathered at the place of
occurrence for some purpose other than assaulting the deceased. Further, no
evidence was found against the acquitted accused persons. Hence, the
appeal as also the revision petition were dismissed. The High Court, inter
alia, observed and held as under: -
“23. True it is that every offence committed by a member of an
unlawful assembly will not be necessarily ascribed to or vicariously
fastened upon every other member of that assembly with the aid of
Section 149 of IPC. The likelihood of causing of death by the nature
of the actions of the assembly must be show to be within the
knowledge of member who is to be made vicariously liable for the
death. Such knowledge may reasonable be collected from the
nature of the assembly, arms of behaviors at or before the scene of
action. In the present case, there is evidence that accused No.3
Mukesh was saying that he would definitely burst two firecrackers
and that there was pre-planning of the accused/appellants for killing
two person. Furthermore, no defence has been taken by the
accused/appellants that they had gathered at the place of
occurrence for some purpose other than assaulting the deceased.
There is enough evidence to show that the accused/appellant were
having inimical relation with the deceased party, they all were
searching him for beating, they arrived at the spot at the same time,
though from different directions, waylaid the deceased and started
beating him. Thereafter, while the deceased was being dragged by
accused no. 1 Bharosaram and accused no. 4 Chintaram by holding
both his legs, he was being beaten by the other accused/appellants.
24. From the facts and the evidence adduced by the prosecution, it
is apparent that all the accused/ appellants had reached the place of
occurrence duly armed with weapons. If this is the manner in which
the accused/ appellants had come to the spot, it can not be said that
they had not formed an unlawful assembly within the meaning of the
17
said expression as appeared in Section 141 of IPC. While
membership of an unlawful assembly itself is an offence under
Section 143 of IPC, use of force by members of unlawful assembly
gives rise to the offence of rioting which is punishable either under
Section 147 or 148 of IPC. The availability of arms in the hands of
the accused/ appellants and use of them has clearly been
established by the prosecution not only by oral evidence but also by
medical evidence, according to which as many as 18 injuries were
found on the body of the deceased. Thus considering the evidence
of the eyewitnesses, including injured eyewitness PW-1
Dhanwaram, as well as the medical evidence, the number and
nature of injuries caused to the deceased Govind as well as PW-1
Dhanwaram, the manner in which they were assaulted resulting in
death of Govind, it is quite apparent that common object of their
unlawful assembly was to commit murder of the deceased and to
voluntarily cause grievous hut to PW-1 Dhanwaram. For the reason
stated above, we find no force in the arguments of the counsel for
the appellants that case of the accused/ appellants is covered by
Exception 4 to Section 300 of IPC making them, at best, liable to be
convicted under Section 304 Part -II of IPC. The trial Court after due
appreciation of the entire evidence on record has rightly convicted
and sentenced the appellants as mentioned above and there is no
illegality or infirmity in the judgment impugned necessitating
interference by this Court.
25. As regards acquittal of respondents No. 2 to 10 (in Cr. Rev No.
517 of 2000), the trial Court after considering all the factual and legal
aspects of the case in its proper perspective has recorded a finding
that there is absolutely no evidence against these accused/
respondents connecting them with the crime in question. The said
finding is based on proper appreciation of the evidence on record.
We find no illegality or perversity in the said findings to upset it.
26. In the result, Cr. A. No.3336/1999 and Cr. Rev. No. 517/2000
being without any substance are liable to be dismissed and they are
dismissed as such….”
Rival Contentions
9. Assailing the judgment and order aforesaid, affirming their conviction
and upholding the sentence as awarded, the appellants have preferred the
present appeals.
10. Learned counsel for the appellants, while restricting his submissions
only to the charge under Section 302/149 IPC, has strenuously argued that
18
the alleged eye-witnesses made general statements that all the accused
persons who were 17-18 in number came and assaulted the deceased Govind
Singh but the appellants were not specifically named by these witnesses and
conviction could not have been based on such vague and cursory statements
which are not sufficient to prove the culpability of any of the appellant in the
crime in question. The learned counsel has referred to the decision in
Chandra Shekhar Bind and Ors. v. State of Bihar: AIR 2001 SC 4024 to
submit that while dealing with this case concerning a large number of alleged
offenders, conviction could be sustained only if two or more witnesses gave a
consistent account of the incident. The learned counsel would argue that out
of the four-five alleged eye-witnesses to the assault of Govind Singh, no two
witnesses named the accused persons except the appellant Bhaorosaram (A1) and another accused Chintaram (A-4); and there being no cogent and
consistent evidence against the other appellants, they deserve to be
exonerated like the acquitted accused persons. The learned counsel has also
relied upon the decision in State of Rajasthan v. Sheeshpal: AIR 2016 SC
4958 to submit that the guilt of the accused must be proved beyond all
reasonable doubts; and on the facts and in the circumstances of this case,
when two views are possible on the evidence adduced, one pointing to the
guilt of the accused and other to his innocence, the view which is favourable
to the accused should be accepted.
10.1. The learned counsel for the appellants has also argued in the
alternative that even if on the evidence on record, the accusation against the
19
appellant Bharosaram (A-1) is found established, he had undergone nearly 11
years of imprisonment and in the facts and circumstances of the case and
looking to the role assigned, his conviction may be altered to that under Part I
of Section 304 of IPC and the sentence may be reduced to the period already
undergone while the other appellants Duleshwar, Nand Kumar, Bhanjan
Singh, Keshav Prasad, Khemuram and Lakhan be acquitted from the charge
under Section 302/149 IPC.
11. Per contra, learned counsel for the State has supported the conviction
of appellants with the submission that the Trial Court and the High Court have
dealt with each and every argument raised by the appellants and the
impugned judgments do not suffer from any infirmity so as to call for
interference. The learned counsel has argued that all the accused appellants
have been identified by the eye-witnesses and particularly by the star witness
PW-5, who categorically deposed the names of the appellants. According to
the learned counsel, PW-2, PW-3, PW-4 and PW-5 have been able to
corroborate the details of the incident and the weapons used to kill the
deceased. The learned counsel has also relied upon the decision in Paulmeli
v. State of Tamil Nadu: (2014) 13 SCC 90 to submit that even the testimony
of a hostile witness cannot be rejected in toto as the evidentiary value of his
testimony is not lost and can be accepted to the extent that the version is
found corroborated with other material evidence. The learned counsel has
referred to the testimony of PW-9 Hiradhar and has contended that even if this
witness turned hostile, he has specifically taken the name of two accused
20
persons Khemraj and Duleshwar being involved in beating the deceased
Govind; and his testimony fortifies the case against them. Further, with
reference to several decisions of this Court including those in Lala Ram (D)
through Duli Chandi v. State of Haryana: (1999) 9 SCC 525 and Kallu v.
State of Madhya Pradesh: (2006) 10 SCC 313, the learned counsel has
contended that the minor discrepancies in the testimony of eye-witnesses do
not operate against the case of the prosecution; rather some discrepancies in
the narrations are bound to occur when the witnesses speak on details.
According to the learned counsel, there being no material contradiction, the
evidence on record consistently prove the case against the accused persons.
11.1. The learned counsel for the respondent State has also referred to the
decision in Madan Singh v. State of Rajasthan: (1978) 4 SCC 435 to submit
that recovery of bloods stained clothes and weapons from the accused
persons having been established in the statement of PW-20, the IO; and the
evidence of such recovery having not been effectively controverted, the
complicity of the appellants in the case is further corroborated and their
conviction does not call for interference.
11.2. Lastly, learned counsel for the respondent State has referred to the
decision in Lalji v. State of UP: (1989) 1 SCC 437 to submit that once it is
found that the accused persons formed an unlawful assembly and committed
the offence, every member of such unlawful assembly would remain liable and
no proof of any particular role or act on the part of any particular accused is
requisite. However, the learned counsel has submitted in his written
21
submissions that Nand Kumar (A-12) has not been named in the testimony of
eye-witnesses.
12. We have heard learned counsel for the parties at length and have
scanned through the entire material on record.
The incidents in question and formation of unlawful assembly
13. As noticed, the prosecution case had been that two incidents took
place in the afternoon and evening hours of 15.10.1998: one in which PW-1
Dhanwaram sustained grievous injuries and another which led to the death of
Govind Singh, who was brother of PW-1 Dhanwaram. Going by what has
been suggested on behalf of the appellants and other accused persons,
another incident took place the same day and around the same time, in which
the deceased Govind Singh allegedly assaulted Mangalram (A-14). The fact
that there had been a dispute in relation to the fields, involving Biselal Sahu
(brother of the accused Mangalram) on one hand and PW-1 Dhanwaram on
the other hand remains undeniable. It is also apparent that the incidents in
question had their genesis in such a dispute. It had been the prosecution case
that at least six of the accused persons namely, Bharosaram (A-1), Duleshwar
(A-2), Chintaram (A-4), Khemraj (A-6), Vivekanand (A-9) and Kedarnath (A18) assaulted PW-1 Dhanwaram at about 4.30-5.00 p.m. This assault on him
led to multiple injuries including fracture of jaw bones and the injured
Dhanwaram fell unconscious. For this incident and for assault on Dhanwaram,
the accused persons were also tried for the offence under Section 307 IPC in
this very case; and four of them, including the appellants Bharosaram (A-1)
22
and Duleshwar (A-2), were convicted, albeit for the offence under Section 325
IPC. Such conviction has not specifically been challenged in these appeals
and even otherwise, there appears no reason to disturb such conviction based
on cogent evidence. It is, thus, seen that there existed enmity in the parties
and on the fateful day, the tempers soured high, with assault on PW-1
Dhanwaram. It is the prosecution case that after such assault on Dhanwaram,
the assembly went in search of Dhanwaram’s brother (i.e., the deceased
Govind Singh) and after finding him near Kalley Bridge, the members of the
assembly pounced upon him and he was beaten to death while being dragged
by legs. In these appeals, we are concerned essentially with the conviction of
appellants under Section 302/149 IPC. The relevant questions arising in these
appeals may be examined in the backdrop of the facts and surrounding
factors as noticed above.
14. Formation of an unlawful assembly with common object being the basic
ingredient for invoking Section 149 IPC, the first point to be determined is as
to whether formation of such an unlawful assembly is established. In a
comprehension of the evidence on record, in our view, the fact that a large
assembly was indeed formed, where the members were armed with weapons
including lathis and tangiyas and they indulged in assault over Govind Singh,
is evident on the face of record with the consistent testimonies of the eyewitnesses PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh and PW-5
Prahlad Yadav.6
 Even the witness declared hostile i.e., PW-9 Hiradhar has
6 PW-2 to PW-4 have even stated the approximate number of members of such assembly.
According to PW-2 Santosh Kumar, the assembly had been of about 17-18 persons
whereas according to PW-3 Bhuwan, they had been 20-25 in number and according to
PW-4 Rajesh, the number of members of this assembly was about 15-20.
23
also testified to the fact of assault by an assembly over Govind Singh; he even
named at least two of the assailants. We shall come to the question of identity
of each of the accused person a little later. Suffice it to observe at this juncture
that the fact of formation of an unlawful assembly with weapons is amply
established. It has rightly been argued on behalf of the respondents with
reference to Lalji’s case (supra), that once formation of unlawful assembly at
the time of committing of offence is established, the question of specific role of
an individual member of the assembly is rendered secondary. In other words,
the prosecution need not prove any specific overt act on the part of each and
every member of that assembly. It is also established beyond doubt in the
present case that the deceased Govind Singh was brutally beaten black and
blue with extensive injuries all over his body, including contusions, lacerated
wounds and multiple fractures of various bones and ribs. The post-mortem
report and the medical opinion that Govind Singh died due to shock with
rupture of liver and fracture of ribs leave nothing to doubt that he was done to
harsh and gruesome death with merciless thrashing, including multiple use of
blunt weapons like lathi. Thus, the fact that there had been an assembly with
the common object of battering Govind Singh to death is hardly of any doubt.
The manner of causing death of Govind Singh makes it clear that the intention
of assailants forming such assembly had only been to cause death and the
acts were done with that intent alone. The question of identity of the particular
accused as the member of this assembly would, of course, require
24
consideration to find if the prosecution case is proved beyond reasonable
doubt against him or not.
Multiple accused persons and several eye-witnesses: principles for
appreciation of evidence
15. Before embarking on the question aforesaid, we may refer to the facts
that in the present case, as many as 12 persons were named in the FIR and
as many as 18 persons were tried for the offences in question. In the trial,
apart from other witnesses, the prosecution examined several persons as eyewitnesses, including PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh, PW5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav. The Trial Court
convicted 9 accused persons, including the present appellants, for the
offences under Sections147, 148 and 302 read with Section 149 IPC and the
High Court confirmed such conviction.7
 In regard to such a case involving
multiple accused persons and several witnesses, it would be worthwhile to
refer to the principles expounded in Masalti v. State of U.P.: (1964) 8 SCR
133, as reiterated in the case of Chandra Shekhar Bind (supra) in the
following:
“9. However, this is an incident in which a large number of accused
had participated. The Constitution Bench of this Court has, in the
case of Masalti v. State of U.P.: AIR 1965 SC 202 held that under
the Evidence Act, trustworthy evidence given by a single witness
would be enough to convict the accused persons, whereas evidence
given by half-a-dozen witnesses which is not trustworthy would not
be enough to sustain the conviction. It was held that where a
criminal court has to deal with evidence pertaining to the
commission of an offence involving a large number of offenders, it is
usual to adopt the test that the conviction could be sustained only if
7 As noticed, 7 of these convicted accused are before us as appellants whereas the other two namely,
Chintaram (A-4) and Khemraj (A-6) have not appealed against their conviction and sentence.
25
it is supported by two or three or more witnesses who give a
consistent account of the incident. It was held that in a sense, the
test may be described as mechanical, but it cannot be treated as
irrational or unreasonable. It was held that even though it is the
quality of the evidence that matters and not the number of
witnesses, still it is useful to adopt such a mechanical test.
10. This two-witness theory has also been adopted by this Court in
the case of Binay Kumar Singh v. State of Bihar: 1997 1 SCC 283. It
is held that there is no rule of evidence that no conviction can be
based unless a certain minimum number of witnesses have
identified a particular accused as a member of the unlawful
assembly. It is held that it is axiomatic that evidence is not to be
counted but only weighed and it is not the quantity of evidence but
the quality that matters. It is held that even the testimony of one
single witness, if wholly reliable, is sufficient to establish the
identification of an accused as a member of an unlawful assembly. It
is held that all the same, when the size of the unlawful assembly is
quite large and many persons would have witnessed the incident, it
would be a prudent exercise to insist on at least two reliable
witnesses to vouchsafe the identification of an accused as a
participant in the rioting.”
15.1. Thus, it is the quality of evidence that matters and not the quantity; and
even the testimony of a single witness may be sufficient to establish the
identity of an accused as member of an unlawful assembly but, when the size
of assembly is quite large and many persons have witnessed the incident; and
when a witness deposes in general terms, it would be useful to adopt the test
of consistency of more than one witness so as to remove any doubt about
identity of an accused as a member of the assembly in question. However,
even if adopting such a test of consistency, what is to be looked for is the
‘consistent account of the incident’; and the requirement of consistency cannot
be overstretched as if to search for repetition of each and every name of the
accused in each and every testimony. In other words, the comprehension of
overall evidence on record is requisite; and mere counting of heads or mere
26
recitation of names or omission of any name in the testimony of any particular
witness cannot be decisive of the matter. In such facts and circumstances,
even the relevance of the corroborating facts and factors like that of recovery
of weapons or any other article co-related with the crime in question cannot be
ignored altogether.
15.2 In the present case, it is noticed that the Trial Court painstakingly
analysed the evidence on record but while recording its conclusion, largely
proceeded to record conviction on the basis of the testimony of PW-5 Prahlad
Yadav only, though it referred to the corroboration in relation to some of the
accused persons in the testimony of some of the other witnesses too. The
High Court, though the first Court of appeal, essentially proceeded only on the
basis of findings of the Trial Court. In the circumstances of the case, it appears
just and proper that overall scenario emerging from the evidence on record be
taken note of and then, the case in relation to each of the accused person be
analysed.
The overall scenario concerning the incident in question
16. As per the testimony of PW-2 Santosh Kumar, on the date of incident,
around 5.00 p.m., he was present at the Cycle Shop near Kalley Bridge with
PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav along with another
person Angad. It was asserted by PW-2 Santosh Kumar that the accused
persons came to the spot carrying sticks and hatchet; they started arguments
with Govind Singh; and they asked the other witnesses to move away while
avowing that Govind Singh had to be killed. The witness also testified that the
27
accused persons started assaulting Govind Singh; and that Bharosaram and
Chintaram caught both legs of Govind Singh and dragged while others kept on
beating him. PW-3 Bhuwan and PW-4 Rajesh again testified to the occurrence
with deceased being caught by legs and dragged while others kept on beating
him. However, PW-3 and PW-4 did not name any particular person as being
the assailant.
17. In the testimony of PW-5 Prahlad Yadav, not only the incident has been
narrated in fuller details but several names of assailants have occurred. In the
first place, he asserted that Bharosa (A-1), Nand (A-12), Chinta (A-4) and
Bhanjan (A-5) asked him to move away. The witness further stated that
Bharosaram (A-1) and Chintaram (A-4) caught the deceased by legs while
others kept on beating him. He specifically denied the presence of the
accused Mangalram (A-14) during the incident. In re-examination, he
specifically stated the names of Bharosaram (A-1), Chintaram (A-4), Bhanjan
Singh (A-5), Garib Ram Sahu (A-15), Lakhan (A-13), Hemu (a person of this
name was neither mentioned in FIR nor tried by the Trial Court), Keshav
Prasad (A-7) and Nand Kumar (A-12). PW-9 Hiradhar, though declared
hostile for not fully supporting the prosecution case, did corroborate the
testimony of PW-2 Santosh Kumar and PW-5 Prahlad Yadav about the
assembly of persons searching for deceased Govind Singh; and Khemraj (A6) and Duleshwar (A-2) having given lathi blows to Govind Singh due to which
he fell down. This witness stated that he moved away after such blows were
given to Govind Singh and did not see the happenings thereafter. PW-16
28
Tikuram Yadav was also cited as an eye-witness but stated that he had seen
such assault from a faraway place and he was unable to recognise the
assailants. Coupled with such testimony remains the fact that several bloodstained weapons and clothes were seized by I.O. during investigation. Though
the witnesses to such seizure proceeding, PW-13 Punarad Ram and PW-14
Reshamlal, have been declared hostile but nothing has occurred in the
testimony of PW-20 V.S. Urmaliya, the Investigating Officer to disbelieve or
discard his testimony as regards such seizure proceedings.
Individual cases of the accused persons
18. Keeping in view the scenario concerning the incident in question and
the account given out by the eye-witnesses, we may analyse the case in
relation to the appellants before us. It could be usefully reiterated that as
many as 18 accused persons were tried in this case and the Trial Court
convicted 9 of them for the offences under Sections 147, 148, 302/149 IPC
while acquitting the others for these charges pertaining to the incident leading
to the death of Govind Singh. So far as the acquitted accused persons are
concerned, with dismissal of the revision petition by the High Court, and there
being no further challenge, such acquittal has, obviously, attained finality. As
noticed, so far as the 9 convicted accused persons are concerned, 7 have
appealed to this Court while the others, namely Chintaram (A-4) and Khemraj
(A-6) have not challenged their conviction.
19. As noticed, there is substantial consistency in the account of the
incident as given out by the eye-witnesses. The fact that there had been a
29
large gathering that was searching for Govind Singh and after finding him near
Kalley Bridge, the members of the assembly pounced on him is consistently
stated by the eye-witnesses PW-2, PW-3, PW-4, PW-5 and even PW-9.
Further there had been consistency in the account of several of the witnesses,
including PW-2, PW-3, PW-4 and PW-5, that the deceased Govind Singh was
being dragged by his legs by two of the members of the assembly. Both PW-2
and PW-3 gave out the names of the persons who dragged Govind Singh as
Bharosaram (A-1) and Chintaram (A-4). There had been another fact
consistently stated by PW-2 Santosh Kumar and PW-5 Prahlad Yadav that
when they attempted to intervene, some of the persons of the assembly
threatened and asked them to move away. PW-5 Prahlad Yadav specifically
gave out that Bharosa (A-1), Nand (A-12), Chinta (A-4) and Bhanjan (A-5)
were the accused persons who extended such a threat and asked him to
move away. Even the hostile witness PW-9 specifically stated that Khemraj
(A-6) and Duleshwar (A-2) assaulted the deceased Govind Singh.
20. In the aforesaid status of the testimony of the eye-witnesses and the
nature of incident, in our view, the account given by Prahlad Yadav (PW-5),
who had specifically named several of the accused persons, does not appear
suffering from any infirmity and in our view, the conviction of some of the
appellants, in whose relation no reasonable doubt exists, could be sustained
on the basis of his testimony because the same stands corroborated on the
material particulars in the testimony of other witnesses.
30
21. Having noticed the overall scenario relating to the incident in question
and the position obtaining on record in relation to the testimonies of the
witnesses, we may now examine the case of each of the appellants before us
individually.
21.1. So far as the appellant Bharosaram (A-1) is concerned, it is established
that he had been the part of assembly right from the beginning inasmuch as
he was amongst the assailants who caused grievous injuries to PW-1
Dhanwaram in the incident that preceded the incident resulting in demise of
Govind Singh. The eye-witness PW-5 named him as one of the accused
persons assaulting the deceased. It is also established in the testimony of the
witnesses PW-2 and PW-5 that the deceased was dragged by legs by two
persons, one being this accused Bharosaram (A-1). Such a fact that the
deceased was indeed dragged by legs has been stated by PW-3 Bhuwan and
PW-4 Rajesh also. The eye-witness PW-5 also stated that when the accused
persons were assaulting Govind Singh, he went there to intervene but was
threatened by Bharosa, Nand, Chinta and Bhanjan. The happening of the
incident in question and threats by some of the assailants to the witnesses is
duly corroborated in the testimony of PW-2 Santosh Kumar. Coupled with
these factors, the Investigating Officer seized one tangiya and a blood-stained
lungi from this accused Bharosaram (vide Ex. P/13). Though this accused
alleged that he was not present during the incident and had been falsely
implicated but there is no specific defence evidence on his plea of alibi nor
there is any other specific defence version of this accused. In the given set of
31
facts and circumstances, in our view, it is established beyond doubt that this
accused Bharosaram (A-1) had been the member of the assembly that
attacked and thrashed the deceased Govind Singh.
21.2. As regards the appellant Duleshwar (A-2), again, it is established that
he was amongst the assailants who caused grievous injuries to PW-1
Dhanwaram in the incident that preceded the incident resulting in demise of
Govind Singh. Apart from PW-5 Prahlad Yadav naming him as one the
members of the assembly that assaulted the deceased, even the otherwise
hostile witness PW-9 Hiradhar specifically stated that this accused Duleshwar
had been one of the persons who assaulted the deceased Govind Singh. As
observed, merely for this witness PW-9 turning hostile in relation to some part
of the prosecution case, his entire testimony cannot be discarded, if it inspires
confidence [vide Paulmeli’s case (supra)]. There is no reason of false
implication of this accused by PW-9. Moreover, PW-20, the Investigating
Officer seized a lathi and a vest from this accused (vide Ex. P/14) both
carrying blood-stains. This accused similarly alleged that he was not present
during the incident and had been falsely implicated but there is no specific
defence evidence on his plea of alibi nor there is any other specific defence
version. In the totality of circumstances, in our view, it is established beyond
doubt that this accused Duleshwar (A-2) had also been the member of the
assembly that attacked and thrashed the deceased Govind Singh.
21.3. As regards the appellant Bhanjan Singh (A-5), the eye-witness PW-5
named him as one of the accused persons assaulting the deceased. This
32
accused was also named by PW-5 as one of the members of the assembly
that threatened the witnesses to move away. The happening of the incident in
question and threats by some of the assailants to the witnesses is duly
corroborated in the testimony of PW-2 Santosh Kumar. Coupled with these
factors, PW-20, the Investigating Officer, seized a blood-stained lathi from this
accused also (vide Ex. P/16). Though this accused stated that he was falsely
implicated but there had not been any specific defence plea on his part. In the
given set of facts and circumstances, there is no reason to doubt that he had
also been the member of the assembly that attacked and thrashed the
deceased Govind Singh.
21.4. So far as the appellant Keshav Prasad (A-7) is concerned, though other
witnesses did not categorically state his name but the eye-witness PW-5
Prahlad Yadav, during his re-examination, specifically named him as one of
the accused persons who assaulted the deceased.. The lathi recovered from
this accused (vide Ex. P/18) also carried blood-stains. A feeble attempt was
made for suggesting the plea of alibi where DW-1 Latkhor said that this
accused went to Dhamtari to get his sewing machine repaired on the day of
incident at about 1.30 p.m. However, there had been no such plea of this
accused in his statement under Section 313 CrPC and there is no cogent
evidence on record to establish the presence of this accused at any other
place during the time of incident. In the totality of circumstances of this case,
we find no reason to extend him the benefit of doubt and there is no reason to
33
interfere with the findings that he had also been the member of the assembly
that assaulted the deceased Govind Singh.
21.5. So far as the appellant Khemuram (A-8) is concerned, we find it difficult
to endorse his conviction. Though one name ‘Hemu’ has occurred in the reexamination of PW-5 Prahlad Yadav but not specifically the name of this
accused Khemuram8
. The prosecution has not taken any steps to clarify if
there was any discrepancy in regard to the statement of this witness PW-5.
No other eye-witness has named this accused Khemuram as one of the
members of the mob that assaulted the deceased Govind Singh nor any other
act of this accused has come on record which could connect him with the
assembly in question and the place of incident. Though the lathi recovered at
the instance of this accused (vide Ex. P/19) allegedly carried blood-stains but
his conviction cannot be based on this recovery alone. For want of cogent
and convincing evidence about his presence at the scene of crime and his
participation in assaulting the deceased, in our view, this accused Khemuram
(A-8) is entitled to the benefit of doubt and the findings in his relation cannot
be sustained.
21.6. As regards the appellant Nand Kumar (A-12), though lathi said to have
been recovered from him (vide Ex. P/27) was not shown carrying any bloodstains and it has been suggested in the submissions on behalf of the State
that his name is not taken by any witness but then, it is noticed from the
statement of PW-5 Prahlad Yadav that he had clearly named this accused as
8 We have examined the original record too and it is clear that the name mentioned in
the re-examination of PW-5 is ‘Hemu’ and not ‘Khemu’.
34
one of the persons who threatened the witnesses and further stated his name
in the re-examination along with the name of other assailants. As noticed, the
happening of the incident in question and threats by some of the assailants to
the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar.
In the given circumstances, the case against this appellant Nand Kumar more
or less stands at the same footing as that against the co-accused Bharosaram
(A-1) and Bhanjan Singh (A-5), as discussed in the foregoing paragraphs 21.1
and 21.3. Though a witness DW-2 Dilip Kumar was examined in defence that
this accused Nand Kumar was present in his village Darra on 15.10.1998 at
the relevant time and was in the field from 3.00-6.00 p.m. but no such specific
plea was taken by him in his defence version. The Trial Court has rejected
such evidence as after-thought and rightly so. In the given set of facts and
circumstances, there is no reason to interfere with the findings that Nand
Kumar (A-12) had also been the member of the assembly that assaulted the
deceased Govind Singh.
21.7. As regards the appellant Lakhan (A-13), again, it is noticed that PW-5
Prahlad Yadav stated his name in the re-examination but then, no other eyewitness named him as one of the members of the mob that assaulted the
deceased Govind Singh nor any other act of this accused has come on record
which could connect him with the assembly in question and the place of
incident. Thus, there had been want of corroboration of the statement of PW-5
by other witnesses in regard to the involvement of this accused Lakhan. The
alleged weapon lathi said to have been recovered at the instance of this
35
accused (vide Ex. P/26) is also not shown carrying blood-stains. Though this
accused also led in defence evidence in the form of DW-3 Barsan who
deposed that this accused was in other village Bhururenga and left his village
on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was
about 15 kms but then, there had been discrepancies regarding the dates and
time in his testimony and no such specific plea of alibi was taken by this
accused in his defence version. However, even if the defence evidence in his
regard is not accepted, as noticed, a reasonable doubt still remains if this
accused Lakhan was a part of the assembly in question. In the given
circumstances, we are of the view that this accused Lakhan (A-13) is also
entitled to benefit of doubt.
22. In summation of what has been discussed in the foregoing paragraphs,
in our view, the involvement of appellants Bharosaram (A-1), Duleshwar (A-2),
Bhanjan Singh (A-5), Keshav Prasad (A-7) and Nand Kumar (A-12) as the
members of the assembly that assaulted and thrashed the deceased Govind
Singh to death is established on record and there appears no reason to
interfere with the findings on their conviction. However, in our view, the
prosecution has failed to prove its case beyond reasonable doubt against the
appellants Khemuram (A-8) and Lakhan (A-13) and they are entitled to the
benefit of doubt.
23. In the passing, we may also usefully reiterate, having regard to the
nature of inquiry herein, particularly that relating to the formation of unlawful
assembly within the meaning of Section 149 IPC, that 2 of the accused
36
persons who stand convicted for offences under Sections 147, 148, 302/149
IPC in this very case viz., Chintaram (A-4) and Khemraj (A-6) have not
appealed against their conviction and on the given status of record, they do
form the part of the same assembly in question that attacked and thrashed
Govind Singh to death. As noticed, the eye-witness PW-5 named Chintaram
(A-4) as one of the accused persons assaulting the deceased and one of the
assailants who threatened the witnesses at the time of the incident. The
happening of the incident in question and threats by some of the assailants to
the witnesses is duly corroborated in the testimony of PW-2 Santosh Kumar.
Moreover, PW-2 Santosh Kumar as also PW-5 Prahlad Yadav have
specifically named the accused Chintaram (A-4) as one of the persons
dragging the deceased by legs. The fact that the deceased was indeed
dragged by legs has been stated by PW-3 Bhuwan and PW-4 Rajesh also.
PW-20 V.S. Urmaliya, the Investigating Officer seized a lathi and vest from this
accused Chintaram (A-4), both carrying blood-stains (vide Ex. P/15). As
regards Khemraj (A-6), it is noticed that his participation in the assembly that
had battered Govind Singh to death has been stated by at least 2 witnesses
namely, PW-5 Prahlad Yadav and PW-9 Hiradhar. As noticed, PW-9 Hiradhar
was declared hostile for not supporting the prosecution case in toto, but he
specifically stated that this accused Khemraj (A-6) and the other accusedappellant Duleshwar (A-2) assaulted the deceased Govind Singh. It is also
noticed that the investigating officer, PW-20 V.S. Urmaliya seized one lathi and
one shirt from this accused Khemraj (A-6), carrying blood-stains (vide Ex.
37
P/17). Thus, on the given status of record, the said accused persons
Chintaram (A-4) and Khemraj (A-6) also form the part of the same assembly in
question that attacked and thrashed Govind Singh to death.
24. Before concluding, we may also deal with the submissions made in the
alternative for converting the conviction to the one under Part I of Section 304
IPC. In our view, the submissions in this regard remain bereft of substance
and could only be rejected. As noticed, it is evident that the deceased Govind
Singh was brutally beaten black and blue by a large assembly of assailants
and he sustained extensive injuries all over his body, including contusions,
lacerated wounds and multiple fractures of various bones and ribs and he died
due to shock with rupture of liver and fracture of ribs. The manner of execution
of its object by the assembly with dragging of the deceased by legs and
merciless thrashing, including multiple use of blunt weapons like lathi, leave
nothing to doubt that the intention of assailants forming such assembly had
only been to cause death and the acts were done with that intent alone. In the
given set of facts and circumstances, there appears no reason to consider the
present one to be a case of culpable homicide not amount to murder. In our
view, conviction of the accused persons, against whom the case of the
prosecution is established beyond reasonable doubt, for offences under
Sections 147, 148 and 302/149 remains unexceptionable.
Conclusion
25. For what has been discussed hereinabove, we find that the accusedappellants Bharosaram (A-1), Duleshwar (A-2), Bhanjan Singh (A-5), Keshav
38
Prasad (A-7) and Nand Kumar (A-12) have rightly been convicted with other
co-accused persons for the offences under Section 147,148, 302/149; and
the appeals filed by these accused-appellants deserve to be dismissed.
However, in our view, the prosecution has failed to prove its case beyond
reasonable doubt against the accused-appellants Khemuram (A-8) and
Lakhan (A-13), who deserve to be acquitted on benefit of doubt.
26. Accordingly, Criminal Appeal Nos. 1813 of 2017 and 1815 of 2017 are
dismissed whereas Criminal Appeal No. 1814 of 2017 is allowed in part and
the impugned judgments are set aside in relation to the accused-appellants
Khemuram (A-8) and Lakhan (A-13). They be set at liberty forthwith, if not
required in any other case.
..………………………. J.
 (A.M. KHANWILKAR)
…………………………. J.
(DINESH MAHESHWARI)
New Delhi
Dated: 21st January, 2020
39

When the Accused not denied his signature on the recovery memo or alleged that his signature was obtained by threat, duress or coercion - the absence of any FSL report may at best be considered as Defective Investigation. The pistol was recovered on the confession of the appellant from under the earth in the courtyard, the earth was freshly dug. The High Court disbelieved the recovery because the independent witness PW2 went hostile. But the High Court missed the reasoning by the trial court that PW­2 did not deny his signature on the recovery memo nor did he state that his signature was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation.

When the Accused not denied his signature on the recovery memo or alleged that his signature was obtained by threat, duress or coercion - the absence of any FSL report may at best be considered as Defective Investigation.

The pistol was recovered on the confession   of   the   appellant   from   under   the   earth   in   the
courtyard,   the   earth   was   freshly   dug.   The   High   Court disbelieved the recovery because the independent witness PW2 went hostile.  
But the High Court missed the reasoning by the trial court that PW­2 did not deny his signature on the
recovery   memo   nor   did   he   state   that   his   signature   was obtained by threat, duress or coercion. The absence of any FSL report may at best be defective investigation.


NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.884 OF 2013
NAWAB                     ....APPELLANT(S)
VERSUS
STATE OF UTTARAKHAND                ...RESPONDENT(S)
J U D G M E N T
NAVIN SINHA, J.
The   appellant   is   aggrieved   by   his   conviction   under
Section  302  IPC sentencing  him to  life  imprisonment,  and
under Section 25 of the Arms Act for one year.
2. The appellant submitted a written report to the police
that   in   the   night   intervening   between   24/25.03.2002,     at
about 01:30 AM, three hooligans entered his house to abduct
him.  His wife was shot dead by the miscreants after a scuffle
when she tried to prevent them from doing so. One firearm
injury was found on the person of the deceased, with an entry
1
and   exit   wound.     On   consideration   of   the   evidence,   the
appellant was convicted by the trial court and which has been
upheld by the High Court.
3. Dr.   Surender   Singh   Hooda,   learned   counsel   for   the
appellant,   submitted   that   the   present   is   a   case   of
circumstantial evidence.   Relying on  Sharad   Birdhichand
Sarda vs. State of Maharashtra, 1984 (4) SCC 116, it was
submitted that the links in the chain of circumstances had not
been established pointing conclusively towards the guilt of the
appellant   alone.     Mere   suspicion,   no   matter   how   strong,
cannot   be   the   basis   of   conviction.   No   incriminating
circumstances were put to the appellant under Section 313
Cr.P.C. The High Court has disbelieved the recovery of the
country made pistol on the alleged confession of the appellant
under Section 27 of the Evidence Act, 1872. The conviction of
the appellant is unsustainable and he is entitled to acquittal.
4. Mr. Jatinder Kumar Bhatia, learned counsel appearing
for the State and Mr. Sanjay Kumar Dubey, learned counsel
2
appearing on behalf of the relative of the deceased, whom we
permitted   to   address   us   allowing   his   application   for
impleadment,   submitted   that   the   motive   of   the   appellant
stands  clearly established to obtain the benefit of the  Life
Insurance Policy ( LIC) taken few days earlier in the name of
the   deceased.     The   plea   of   entry   by   outsiders   has   been
completely   disbelieved   in   absence   of   any   evidence.   The
occurrence   having   taken   place   at   past   midnight   when   the
appellant  was  alone  at home with  the  deceased, the  onus
shifts on him under Section 106 of the Evidence Act to explain
the   circumstances   under   which   his   wife   met   a   homicidal
death. The appellant failed to furnish any plausible defence.
5. We have considered the submissions on behalf of the
parties   and   also   perused   the   evidence   on   record.     The
appellant had taken an LIC policy in the name of his deceased
wife on 23.03.2002, barely few days before the occurrence.
PW­4, brother of the deceased, deposed that they reached at
six in the morning after being informed of the death of his
sister by others and not the appellant. The mother of the
3
deceased   PW­6   deposed   that   the   appellant   was   greedy   for
money   and   prior   to   the   occurrence   he   had   demanded
Rs.10,000 from the witness. 
6. The   appellant   initially   stated   in   the   FIR   that   three
persons entered his house at midnight to abduct him. In his
evidence as DW­1 he stated that there were five persons. If the
intruders had come to abduct the appellant and his wife had
been shot dead after she tried to prevent his abduction, it
would have been all the more convenient for the intruders to
take the appellant away with them. No explanation has been
furnished by the appellant in this regard. The appellant has
not   mentioned   any   reason   or   named   any   on   suspicion   of
enmity or otherwise why the intruders wished to abduct him.
No   details   of   the   physical   features   and   approximate   age,
height, built of the intruders has been mentioned even if they
had their faces covered despite the fact that the spot map
proved by PW­9 and PW­13 establishes the light of an electric
bulb.   The   appellant   initially   took   the   defence   that   he
suspected his wife of having an illicit relationship. The defence
4
of unknown intruders having entered by scaling the northern
side wall built of mud and cement is belied by the spot map
and evidence that no damage or marks were found on the wall.
Not a single brick was found disturbed and neither were there
any foot marks in the muddy courtyard of the house.  We see
no reason to differ with the conclusion of the Trial Judge that
there ought to have been some marks or signs of scaling the
wall, if not shifting of bricks especially when three to five
persons are said to have done so. 
7.  In his defence under Section 313 Cr.P.C., the appellant
stated that he had made a complaint against the police to the
superintendent of police and that is why he had been falsely
implicated.     But   no   evidence   was   laid   much   less   copy
furnished of any such complaint.  A bald statement was made
that   he   has   been   falsely   implicated   at   the   behest   of   his
mother­in­law and father­in­law in collusion with department
officials.
8. The appellant as DW­1 stated that villagers came to his
house when he raised hue and cry after the occurrence. He
5
has further deposed that eight to ten persons had gone with
him to the police station. But the appellant apart from himself
did not lead any independent defence evidence.  The mere fact
of broken bangles or a thumb injury on the deceased is not
sufficient to absolve the appellant in view of the nature of the
other evidence against him. We find it very difficult to accept
the explanation of the appellant that despite the presence of
five persons, when one of them could have easily over powered
the lady, there was any need for them to shoot her as an
obstruction in the abduction of the appellant.  We have gone
through the  statement  of the  appellant  under Section  313
Cr.P.C. and find that all relevant questions were put to him
including from the spot map.
9. The wife of the appellant met a homicidal death in her
own house past mid night when the appellant was alone with
her.  His defence has completely been disbelieved with regard
to the intruders and we find no reason not to uphold the
same. The prosecution had therefore established a prima facie
case and the onus shifted to the appellant under Section 106
6
of the Evidence Act,1872 to explain the circumstances how his
wife met a homicidal death. The appellant failed to furnish any
plausible   defence   and   on   the   contrary   tried   to   lead   false
evidence   which   is   an   additional   aggravating   factor   against
him.
10.  In Trimukh Maroti Kirkan vs. State of Maharashtra,
(2006) 10 SCC 681, it was observed as follows :
“14. If an offence takes place inside the privacy
of a house and in such circumstances where
the assailants have all the opportunity to plan
and   commit   the   offence   at   the   time   and   in
circumstances   of   their   choice,   it   will   be
extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if
the strict principle of circumstantial evidence,
as   noticed   above,   is   insisted   upon   by   the
courts.   A   judge   does   not   preside   over   a
criminal trial merely to see that no innocent
man is punished. A judge also presides to see
that a guilty man does not escape. Both are
public duties. The law does not enjoin a duty
on the prosecution to lead evidence of such
character which is almost impossible to be led
or at any rate extremely difficult to be led. The
duty   on   the   prosecution   is   to   lead   such
evidence which it is capable of leading, having
regard to the facts and circumstances of the
case.   Here   it   is   necessary   to   keep   in   mind
Section 106 of the Evidence Act which says
that   when   any   fact   is   especially   within   the
7
knowledge of any person, the burden of proving
that fact is upon him….
15. Where an offence like murder is committed
in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon
the prosecution, but the nature and amount of
evidence to be led by it to establish the charge
cannot be of the same degree as is required in
other   cases   of   circumstantial   evidence.   The
burden   would   be   of   a   comparatively   lighter
character.   In   view   of   Section   106   of   the
Evidence   Act   there   will   be   a   corresponding
burden on the inmates of the house to give a
cogent explanation as to how the crime was
committed. The inmates of the house cannot
get away by simply keeping quiet and offering
no explanation on the supposed premise that
the burden to establish its case lies entirely
upon the prosecution and there is no duty at
all on an accused to offer any explanation."
 
11. The deceased had only one entry and exit wound. The
bullet apparently exited her body and thus the likelihood of its
recovery from the place of occurrence with  the round end
damaged after it was fired. The pistol was recovered on the
confession   of   the   appellant   from   under   the   earth   in   the
courtyard,   the   earth   was   freshly   dug.   The   High   Court
disbelieved the recovery because the independent witness PW2 went hostile.  But the High Court missed the reasoning by
8
the trial court that PW­2 did not deny his signature on the
recovery   memo   nor   did   he   state   that   his   signature   was
obtained by threat, duress or coercion. The absence of any
FSL report may at best be defective investigation.
12.  We find no reason to interfere with the conviction of the
appellant. All the links in the chain of circumstances point to
the guilt of the appellant alone. The appeal is dismissed.
…………...................J.
[ASHOK BHUSHAN]
…………...................J.
[NAVIN SINHA]
NEW DELHI;
JANUARY 22, 2020
9

Section 431Cr.P.C. is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine” Apex court held that Section 394 Cr.P.C. deals with abatement of appeals. Section 394 is as follows:- “394. Abatement of appeals. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant: Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. Explanation.- In this section," near relative" means a parent, spouse, lineal descendant, brother or sister.”The similar expression, which was used in Section 431, i.e., “except an appeal from the sentence of fine” has been used in Section 394 Cr.P.C. Thus, the appeal in the present case where accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate - From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. The High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.

Section 431Cr.P.C. is that every criminal appeal abates on the death of the accused “except an appeal from a sentence of fine”
Apex court held that
Section 394 Cr.P.C. deals with abatement of appeals. Section 394 is as follows:-
“394. Abatement of appeals.
(1) Every appeal under section 377 or section 378 shall finally abate on the
death of the accused.
(2) Every other appeal under this Chapter
(except an appeal from a sentence of fine)
shall finally abate on the death of the
appellant:
Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days
of the death of the appellant, apply to the Appellate Court for leave to continue
the appeal; and if leave is granted, the appeal shall not abate.
Explanation.- In this section," near relative" means a parent, spouse, lineal descendant, brother or sister.”The similar expression, which was used in Section 431, i.e., “except an appeal from the sentence of fine” has been used in Section 394 Cr.P.C. Thus, the appeal in the present case where accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate - 
From the judgment of the High Court, it does not appear that after the death of the appellant-accused, his legal heirs were given opportunity to proceed with the appeal against the sentence of fine. The judgment of the High Court does not also mention that any counsel has appeared for the legal heirs. The High Court ought to have given an opportunity to legal heirs of the accused to make their submissions against the sentence of fine, which fine could have been very well recovered from the assets of the accused in the hands of the legal heirs.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 77 of 2020
(@ SLP (Crl.)…… Diary No.40131/2017)
RAMESAN (DEAD)
THROUGH LR. GIRIJA A ...APPELLANT(S)
VERSUS
THE STATE OF KERALA ...RESPONDENT(S)
J U D G M E N T
 ASHOK BHUSHAN,J.
This appeal has been filed against the judgment
of the High Court of Kerala dated 06.03.2014 by which
Criminal Appeal of the appellant has been dismissed.
2. Brief facts of the case giving rise to this
appeal are:-
2.1 A First Information Report was registered
against Ramesan under Sections 55 (a) and
(g) of the Kerala Abkari Act [1 of 1077
(ME)]. Charge under Sections 55(a) and
(g) of the Kerala Abkari Act was framed.
1
Prosecution led oral and documentary
evidence to prove the charge. Statement
of Ramesan was also recorded under
Section 313 of Cr.P.C., who completely
denied the incident and charge.
2.2 Additional Session Judge vide its order
dated 20.12.2006 convicted the first
accused Ramesan under Section 55(a) and
imposed imprisonment for a period of two
years and a fine of Rs. One Lakh. The
accused was also convicted and sentenced
under Section 55(g) of the same
punishment of imprisonment of two years
and fine of Rs. One Lakh. In default of
payment of fine amount, accused was to
undergo simple imprisonment for six
months each under Sections 55(a) and (g)
of the Abkari Act.
2.3 An appeal was filed by the first accused
Ramesan in the High Court being Criminal
Appeal No. 254 of 2007 on 06.02.2007.
2
After filing of the appeal, the appellant
Ramesan died on 21.12.2007. The High
Court noticed the factum of death of the
appellant on 21.12.2007, however,
proceeded to decide the appeal on merits
referring to the principle under Section
394 Cr.P.C. The High Court after
considering the evidence on record upheld
the conviction. The High Court took the
view that since the appellant died
pending the appeal, the sentence of
imprisonment has become unworkable,
however, regarding the imposition of
fine, there is no reason to hold that
Court below committed any mistake and the
appeal was consequently dismissed. This
appeal has been filed by Girija A., the
legal heir of Ramesan (deceased).
3. Learned counsel for the appellant contended that
in view of the death of the accused on 21.12.2007,
the High Court ought to have abated the entire
appeal. It is submitted that Section 394 of Cr.P.C.
3
saves the appeal, which arises against sentence of
fine only. When there was composite sentence of
imprisonment as well as fine, the appeal has to abate
both against the sentence of imprisonment as well as
fine. It is contended that High Court committed
error in proceeding to decide the appeal on merits.
High Court ought to have abated the appeal in toto.
4. Learned counsel for the State refuting the
submission contends that there being sentence of fine
also, the appeal has rightly been decided on merits
by the High Court. The sentence of fine or composite
sentence of imprisonment and fine, is also a sentence
of fine.
5. We have considered the submissions of the learned
counsel for the parties and have perused the records.
6. The only question to be decided in this appeal is
as to whether in the facts of the present case, the
accused who was sentenced for imprisonment as well as
for fine, the High Court committed an error in not
abating the appeal in toto.
4
7. Section 394 Cr.P.C. deals with abatement of
appeals. Section 394 is as follows:-
“394. Abatement of appeals.
(1) Every appeal under section 377 or
section 378 shall finally abate on the
death of the accused.
(2) Every other appeal under this Chapter
(except an appeal from a sentence of fine)
shall finally abate on the death of the
appellant:
Provided that where the appeal is
against a conviction and sentence of death
or of imprisonment, and the appellant dies
during the pendency of the appeal, any of
his near relatives may, within thirty days
of the death of the appellant, apply to
the Appellate Court for leave to continue
the appeal; and if leave is granted, the
appeal shall not abate.
Explanation.- In this section," near
relative" means a parent, spouse, lineal
descendant, brother or sister.”
8. Even in Cr.P.C., 1898, there was a provision
pertaining to abatement of the appeal, which was to
the following effect:-
“431. Every appeal under Section 411-A,
sub-section (2), or Section 417 shall
finally abate on the death of the accused,
and every other appeal under this Chapter
(except an appeal from a sentence of fine)
shall finally abate on the death of the
appellant.”
5
9. Both under the Old Code as well as under the
present Code of Criminal Procedure, it is provided
that the appeal against a sentence of fine shall not
abate.
10. The fine as per the provisions of Code of
Criminal Procedure is recoverable from movable and
immovable properties of the accused, Section 421
Cr.P.C. provided as follows:-
“421. Warrant for levy of fine. --(1) When
an offender has been sentenced to pay a
fine, the Court passing the sentence may
take action for the recovery of the fine
in either or both of the following ways,
that is to say, it may-
(a) issue a warrant for the levy of
the amount by attachment and sale
of any movable property belonging
to the offender;
(b) issue a warrant to the Collector
of the district, authorising him
to realise the amount as arrears
of land revenue from the movable
or immovable property, or both, of
the defaulter:
Provided that, if the sentence directs
that in default of payment of the fine,
the offender shall be imprisoned, and if
such offender has undergone the whole of
such imprisonment in default, no Court
shall issue such warrant unless, for
6
special reasons to be recorded in writing,
it considers it necessary so to do, or
unless it has made an order for the
payment of expenses or compensation out of
the fine under section 357.
(2) The State Government may make
rules regulating the manner in which
warrants under clause (a) of sub- section
(1) are to be executed, and for the
summary determination of any claims made
by any person other than the offender in
respect of any property attached in
execution of such warrant.
(3) Where the Court issues a warrant
to the Collector under clause (b) of subsection (1), the Collector shall realise
the amount in accordance with the law
relating to recovery of arrears of land
revenue, as if such warrant were a
certificate issued under such law:
Provided that no such warrant shall be
executed by the arrest or detention in
prison of the offender.”
11. Section 70 of Indian Penal Code provides that any
part of fine which remains unpaid may be levied at
any time within six years after the passing of the
sentence. The provision further provides that the
death of offender does not discharge from the
liability any property which would, after his death,
7
be legally liable for his debts. Section 70 of the
Indian Penal Code is as follows:-
“70. Fine leviable within six years, or
during imprisonment—Death not to discharge
property from liability.—The fine, or any
part thereof which remains unpaid, may be
levied at any time within six years after
the passing of the sentence, and if, under
the sentence, the offender be liable to
imprisonment for a longer period than six
years, then at any time previous to the
expiration of that period; and the death
of the offender does not discharge from
the liability any property which would,
after his death, be legally liable for his
debts.”
12. This Court had occasion to consider the
provisions of Sections 431 and 439 of Cr.P.C. 1898 in
Pranab Kumar Mitra Vs. State of West Bengal and
Another, AIR 1959 SC 144. Section 439 provides for
revisional jurisdiction of the High Court. One of
the issues was as to whether Section 431 applies to
revisional application filed in the High Court. In
paragraph 7, this Court laid down following:-
“7. ………………………In view of the fact that
even in the absence of any statutory
provisions, we have held, in agreement
with the decision aforesaid of the Bombay
High Court, that the High Court has the
power to determine the case even after the
death of the convicted person, if there
was a sentence of fine also imposed on
him, because that sentence affects the
8
property of the deceased in the hands of
his legal representative,………………………”
13. This Court in Bondada Gajapathi Rao Vs. State of
Andhra Pradesh, AIR 1964 SC 1645 had occasion to
consider Section 431 Cr.P.C. A special leave petition
was filed in this Court, the accused died during
pendency of special leave petition. This Court again
reiterated the principle on which hearing of a
proceeding may be continued after the death of an
accused. ;In paragraph 3 of the judgment, following
was laid down:-
“3. The principle on which the hearing of
a proceeding may be continued after the
death of an accused would appear to be the
effect of the sentence on his property in
the hands of his legal representatives. If
the sentence affects that property, the
legal representatives can be said to be
interested in the proceeding and allowed
to continue it.”
14. This Court had occasion to consider the case of a
composite sentence of imprisonment as well as fine in
Harnam Singh Vs. The State of Himachal Pradesh,
(1975) 3 SCC 343. In the above case, the accused was
convicted under Sections 5(1)(d) and 5(2) of
Prevention of Corruption Act, 1947 as well as under
9
Section 161 Indian Penal Code and he was sentenced
for rigorous imprisonment of two years and to a fine
of Rs.300. Contention was raised before this Court
that since the deceased was not sentenced to pay a
fine only but was punished with a composite sentence
of imprisonment and fine, the appeal would abate as
regards the sentence of fine also. Such contention
was noted in paragraph 4 of the judgment, which is to
the following effect:-
“4. Learned Counsel for the State of
Himachal Pradesh, who are respondents to
the appeal, has raised a preliminary
objection to the right of the appellant’s
widow to prosecute the appeal. He contends
that the substantive sentence of
imprisonment imposed on the appellant
Harnam Singh came to an end with his death
and therefore the appeal in regard to that
sentence stands abated. As regards the
sentence of fine, it is contended that
since the deceased appellant was not
sentenced to pay a fine only but was
punished with a composite sentence of
imprisonment and fine, the appeal would
abate as regards the sentence of fine
also. According to the learned Counsel
this Court may, at the highest, set aside
the sentence of fine if it finds that the
appellant need not have been asked to pay
a fine. But the order of conviction and
the substantive sentence must remain and
the legality or propriety of that order
cannot any longer be questioned in view of
the death of the appellant.”
10
15. Rejecting the above submission, this Court laid
down that if by the judgment under appeal a sentence
of fine is imposed either singularly or in
conjunction with a sentence of imprisonment, the
appeal against conviction would be an appeal from a
sentence of fine within the meaning of Section 431.
In paragraph 10, following was laid down:-
“10. The narrow question which then
requires to be considered is whether an
appeal from a composite order of sentence
combining the substantive imprisonment
with fine is for the purposes of Section
431 not an appeal from a sentence of fine.
It is true that an appeal from a composite
order of sentence is ordinarily directed
against both the substantive imprisonment
and the fine. But, such an appeal does not
for that reason cease to be an appeal from
a sentence of fine. It is something more
not less than an appeal from a sentence of
fine only and it is significant that the
parenthetical clause of Section 431 does
not contain the word “only”. To limit the
operation of the exception contained in
that clause so as to take away from its
purview appeals directed both against
imprisonment and fine is to read into the
clause the word “only” which is not there
and which, by no technique of
interpretation may be read there. The
plain meaning of Section 431 is that every
criminal appeal abates on the death of the
accused “except an appeal from a sentence
of fine”. The section for its application
requires that the appeal must be directed
to the sentence of fine and not that it
must be directed to that sentence only. If
by the judgment under appeal a sentence of
11
fine is imposed either singularly or in
conjunction with a sentence of
imprisonment, the appeal against
conviction would be an appeal from a
sentence of fine within the meaning of
Section 431. All that is necessary is that
a sentence of fine should have been
imposed on the accused and the appeal
filed by him should involve the
consideration of the validity of that
sentence.”
16. The above judgment categorically laid down that
even if sentence of fine is imposed alongwith the
sentence of imprisonment under Section 431, such
appeal shall not abate. The similar expression,
which was used in Section 431, i.e., “except an
appeal from the sentence of fine” has been used in
Section 394 Cr.P.C. Thus, the appeal in the present
case where accused was sentenced for imprisonment as
well as for fine has to be treated as an appeal
against fine and was not to abate and High Court did
not commit any error in deciding the appeal on
merits.

17. This Court had occasion to consider Section 394
Cr.P.C. in Lakshmi Shanker Srivastava Vs. State
(Delhi Administration), (1979) 1 SCC 229. In the
12
above case, the accused was sentenced to suffer
rigorous imprisonment for 18 months on each count and
a fine of Rs.200. The accused had died during
pendency of the appeal in this Court and argument was
raised that in view of the above, the appeal abates
and cannot be proceeded with. Such argument was
noticed in paragraph 4, which is to the following
effect:-
“4. Mr H.R. Khanna, learned Counsel who
appeared for the respondent raised a
preliminary objection. It was urged that
the appellant died during the pendency of
this appeal and, therefore, the appeal
abates and cannot be proceeded with.
Simultaneously it was urged that if the
appeal were not to abate on the only
ground that the appellant was also
sentenced to pay a fine of Rs 200 and,
therefore, it may be said that right to
property of the legal representatives may
be adversely affected and, therefore, they
would be entitled to continue the appeal,
the respondent State is prepared to
concede that the sentence of fine may be
set aside.”
18. In the above case, a leave was obtained under the
proviso to Section 394(2) by legal heirs to continue
the appeal. This Court had overruled the primary
objection that appeal should abate although relying
on the proviso to Section 394(2). The principle
13
regarding non-abatement of the appeal from a sentence
of fine as contained in Section 431 of Cr.P.C., 1898
as well as Section 394 of present Cr.P.C. is the
same. A similar legislative scheme has been
contained, which was occurring in Section 431
Cr.P.C., 1898, hence, judgment of this Court
regarding interpretation of Section 431, Cr.P.C. as
has been done by this Court in Bondada Gajapathi Rao
(supra) and Harnam Singh (supra) shall squarely apply
to the interpretation of Section 394 Cr.P.C.
19. We, thus, conclude that the appeal filed by
accused Ramesan in the High Court was not to abate on
death of the accused. The High Court rightly did not
direct for abatement of appeal and proceeded to
consider the appeal on merits. The appeal before the
High Court being against sentence of fine was
required to be heard against the sentence of fine
despite death of accused-appellant.
20. Although, we have upheld the view of the High
Court that appeal filed by the accused was not to
abate and was required to be heard and decided on
14
merits but there is one aspect of hearing of the
appeal before the High Court, which need to be noted.
From the judgment of the High Court, it does not
appear that after the death of the appellant-accused,
his legal heirs were given opportunity to proceed
with the appeal against the sentence of fine. The
judgment of the High Court does not also mention that
any counsel has appeared for the legal heirs. The
High Court ought to have given an opportunity to
legal heirs of the accused to make their submissions
against the sentence of fine, which fine could have
been very well recovered from the assets of the
accused in the hands of the legal heirs.
21. In above view of the matter, we are of the view
that ends of justice be served in reviving the
Criminal Appeal No. 254 of 2007 before the High Court
to give an opportunity to the legal heirs of the
accused to make their submissions against the
sentence of fine.
22. In result, the appeal is partly allowed. The
judgment of the High Court dated 06.03.2014 is set
15
aside and Criminal Appeal No.254 of 2007 is revived
before the High Court to be heard afresh after giving
an opportunity to the legal heirs of the accused.
......................J.
 ( ASHOK BHUSHAN )
......................J.
 ( M.R. Shah )
New Delhi,
January 21, 2020.
16

Whether the Metropolitan Magistrate, Bengaluru has the jurisdiction to entertain the complaint filed by the respondent under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (For short “Domestic Violence Act”). ? Apex court held that Domestic Violence Act, 2005 covers the situation. Section 27 of the Act reads as under:- 27. Jurisdiction – (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which – (a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or (b) the respondent resides or carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act (2) Any order made under this Act shall be enforceable throughout India. A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1) (a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru.

Whether the Metropolitan Magistrate, Bengaluru has the jurisdiction to entertain the complaint filed by the respondent under Sections 18, 19 and 20 of the Protection of Women from Domestic Violence Act, 2005 (For short “Domestic Violence Act”). ?

Apex court held that 
Domestic Violence Act, 2005 covers the situation. Section 27 of the
Act reads as under:-
27. Jurisdiction –
(1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which –
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed;
or
(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act
(2) Any order made under this Act shall be enforceable throughout India.

A plain reading of the above provision makes it clear that the petition under the Domestic Violence Act can be filed in a court where the “person aggrieved” permanently or temporarily resides or carries on business or is employed. In the present case, the respondent is residing with her parents within the territorial limits of Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1) (a) of the Act, the Metropolitan Magistrate court, Bengaluru has the jurisdiction to entertain the complaint and take cognizance of the offence. There is no merit in the contention raising objection as to the jurisdiction of the Metropolitan Magistrate Court at Bengaluru.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 141 OF 2020
(Arising out of SLP(Crl.) No.4979 of 2019)
SHYAMLAL DEVDA AND OTHERS …..Appellants
VERSUS
PARIMALA …..Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the impugned judgment dated
18.02.2019 passed by the High Court of Karnataka at Bengaluru in
Criminal Petition No.5959 of 2015 in and by which the High Court
has dismissed the petition filed by the appellants stating that the
Metropolitan Magistrate, Bengaluru has the jurisdiction to entertain
the complaint filed by the respondent under Sections 18, 19 and 20
of the Protection of Women from Domestic Violence Act, 2005 (For
short “Domestic Violence Act”).
1
3. Brief facts which led to filing of this appeal are as follows:-
The marriage of respondent-wife and appellant No.14-Manoj
Kumar was solemnized on 01.05.2006, as per Hindu rites and
customs in Rajasthan. After marriage, the respondent was residing
with appellant No.14 in her matrimonial house at Chennai along with
appellants No.1 and 2 who are the parents of the appellant No.14.
In April, 2014, appellant No.14 and respondent-wife went to
Bengaluru from Chennai to attend respondent’s sister wedding.
After the said wedding, the respondent expressed her desire to
remain at Bengaluru for some time; which was acceded to by
appellant No.14 with the understanding that the respondent would
stay in her parent’s house for short time. According to the
appellants, the respondent thereafter refused to join her matrimonial
home or cohabit with appellant No.14. Appellant No.14 filed O.P.
No.11355 of 2015 under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights before the Family Court, Chennai.
Thereafter, respondent claiming herself to be a victim of domestic
violence seeking protection order under Section 18 and residence
order under Section 19 and monetary relief under Section 20 of the
Act filed Crl. Misc. No.53 of 2015 before the Court of Metropolitan
Magistrate at Bengaluru against her husband- appellant No.14, her
in-laws-appellant Nos.1 and 2 and other relatives of her husband
2
who are in Chennai, Rajasthan and also in Gujarat. The learned
Magistrate, Bengaluru vide order dated 16.04.2015 issued notice to
the appellants by holding that the Court has the jurisdiction to
entertain the petition filed by the respondent under Section 27 of the
Domestic Violence Act.
4. Aggrieved by the issuance of summons in Crl. Misc. No.53 of
2015, the appellants have filed a petition under Section 482 Cr.P.C.
before the High Court seeking quashing of the entire proceedings in
Crl. Misc. No.53 of 2015 on the file of the MMTC-VI at Bengaluru.
Vide the impugned judgment, the High Court dismissed the petition
by holding that in the complaint filed by the respondent, various
instances of domestic violence at different places viz. Chennai,
Rajasthan and Gujarat are narrated by the respondent and
therefore, the complaint filed in Bengaluru is maintainable under
Section 27 of the Domestic Violence Act. Being aggrieved, the
appellants have preferred this appeal.
5. Mr. Balaji Srinivasan, learned counsel appearing for the
appellants contended that neither the marriage of the parties was
solemnized at Bengaluru nor the matrimonial house was at
Bengaluru and therefore, the Magistrate Court at Bengaluru has no
jurisdiction to entertain the petition filed under the Domestic
3
Violence Act. Learned counsel submitted that vague allegations
have been levelled against the family members of the husbandappellant No.14 which are not at all substantiated. Learned counsel
further submitted that with a view to harass the family members of
her husband, the respondent has arraigned all the family members
of her husband including those who are residents in the State of
Rajasthan, Gujarat and other relatives in Chennai and the complaint
is an abuse of the process of the Court.
6. Ms. Nidhi, learned counsel appearing for the respondent has
contended that by virtue of Section 27 of the Domestic Violence Act,
the place where the complainant permanently or temporarily resides
or carries on business, Court has the jurisdiction to entertain the
complaint and grant protection order and other orders under the
Domestic Violence Act. It was submitted that the respondent is
currently residing within the territorial limit of the Metropolitan
Magistrate of Bengaluru City and that the High Court rightly held
that the Metropolitan Magistrate at Bengaluru has the jurisdiction to
entertain the complaint. Taking us through the averments in the
complaint, learned counsel for the respondent has submitted that
there are several instances of domestic violence against the
husband-appellant No.14 and other relatives particularly, appellant
4
Nos.1 and 2-father-in-law and mother-in-law who have been
harassing the respondent who have taken away respondent’s
jewellery and insisting upon her to buy properties. The learned
counsel submitted that the High Court rightly refused to quash the
order of taking cognizance.
7. We have carefully considered the contentions and perused
the impugned judgment and other materials on record.
8. Section 18 of the Domestic Violence Act relates to protection
order. In terms of Section 18 of the Act, intention of the legislature
is to provide more protection to woman. Section 20 of the Act
empowers the court to order for monetary relief to the “aggrieved
party”. When acts of domestic violence is alleged, before issuing
notice, the court has to be prima facie satisfied that there have been
instances of domestic violence.
9. In the present case, the respondent has made allegations of
domestic violence against fourteen appellants. Appellant No.14 is
the husband and appellants No.1 and 2 are the parents-in-law of
the respondent. All other appellants are relatives of parents-in-law
of the respondent. Appellants No.3, 5, 9, 11 and 12 are the
brothers of father-in-law of the respondent. Appellants No.4, 6 and
10 are the wives of appellants No.3, 5 and 9 respectively.
5
Appellants No.7 and 8 are the parents of appellant No.1. Appellants
No.1 to 6 and 14 are residents of Chennai. Appellants No.7 to 10
are the residents of State of Rajasthan and appellants No.11 to 13
are the residents of State of Gujarat. Admittedly, the matrimonial
house of the respondent and appellant No.1 has been at Chennai.
Insofar as appellant No.14-husband of the respondent and
appellants No.1 and 2-Parents-in-law, there are averments of
alleging domestic violence alleging that they have taken away the
jewellery of the respondent gifted to her by her father during
marriage and the alleged acts of harassment to the respondent.
There are no specific allegations as to how other relatives of
appellant No.14 have caused the acts of domestic violence. It is
also not known as to how other relatives who are residents of
Gujarat and Rajasthan can be held responsible for award of
monetary relief to the respondent. The High Court was not right in
saying that there was prima facie case against the other appellants
No.3 to 13. Since there are no specific allegations against
appellants No.3 to 13, the criminal case of domestic violence
against them cannot be continued and is liable to be quashed.
10. Insofar as the jurisdiction of the Bengaluru Court, as pointed
out by the High Court, Section 27 of the Protection of Women from
6
Domestic Violence Act, 2005 covers the situation. Section 27 of the
Act reads as under:-
27. Jurisdiction –
(1) The court of Judicial Magistrate of the first class or the Metropolitan
Magistrate, as the case may be, within the local limits of which –
(a) the person aggrieved permanently or temporarily resides or
carries on business or is employed; or
(b) the respondent resides or carries on business or is employed;
or
(c) the cause of action has arisen, shall be the competent court to
grant a protection order and other orders under this Act and to try
offences under this Act
(2) Any order made under this Act shall be enforceable throughout
India.
A plain reading of the above provision makes it clear that the
petition under the Domestic Violence Act can be filed in a court
where the “person aggrieved” permanently or temporarily resides or
carries on business or is employed. In the present case, the
respondent is residing with her parents within the territorial limits of
Metropolitan Magistrate Court, Bengaluru. In view of Section 27(1)
(a) of the Act, the Metropolitan Magistrate court, Bengaluru has the
jurisdiction to entertain the complaint and take cognizance of the
offence. There is no merit in the contention raising objection as to
the jurisdiction of the Metropolitan Magistrate Court at Bengaluru.
7
11. In the result, Crl. Misc. No.53 of 2015 filed against the
appellants No.3 to 13 is quashed and this appeal is partly allowed.
The learned VI Additional Metropolitan Magistrate at Bengaluru shall
proceed with Crl. Misc. No.53 of 2015 against appellants No.1, 2
and 14 and dispose the same in accordance with law. We make it
clear that we have not expressed any opinion on the merits of the
matter.
..…………………….J.
 [R. BANUMATHI]
..…………………….J.
 [A.S. BOPANNA]
……………………….J.
 [HRISHIKESH ROY]
New Delhi;
January 22, 2020.
8