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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1516 OF  2011

BHAGWAN JAGANNATH MARKAD  &  ORS.             … APPELLANTS

VERSUS

STATE OF MAHARASHTRA   ... RESPONDENT

J U D G M E N T

ADARSH  KUMAR  GOEL,  J.

1. The appellants are aggrieved by the judgment and order dated 20th

April, 2007 passed by the High Court of Judicature at Bombay in Criminal

Appeal No.533 of 1990 whereby they have been convicted under Sections

147, 149, 302 read with Sections 149, 324 and 326 of the Indian Penal

Code  and sentenced to  undergo  imprisonment  for  life,  apart  from other

lesser sentences which are to run concurrently and payment of fine, setting

aside their acquittal by the trial court.   

2. Originally there were 16 accused namely:-  

1) Bhagwan Jagannath Markad,  2) Janardhan Rambhau Tate,  3) Dada Sayyednoor Mulani,  4) Sayyed Sayyadnoor Mulani,  5) Sandipan Sakhara Koyale,  6) Nivrutti Sakharam Koyale,  7) Krishna Sakharam Koyale,

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8) Shailendra Sandipan Koyale,  9) Chandrakant Shankar Markad,  10) Babu Rama Berad,  11) Balu Naradeo Berad,  12) Manik Rama Berad,  13) Pandurang Babu Arade,  14) Sadashiv Shahu Arade,  15) Kisan Rama Berad,  and  16) Appa Shabu Arade.   

3. The  trial  court  acquitted  all  the  accused.   The  High Court  upheld

acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16.   

4. Accused No.2 is  reported to have died.  Thus, eight appellants are

before  this  Court.   They  are  A1 Bhagwan Jagannath  Markad;  A3  Dada

Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; A5 Sandipan Sakhara

Koyale; A6 Nivrutti Sakharam Koyale; A7 Krishna Sakharam Koyale; A10

Babu Rama Berad and A11 Balu Naradeo Berad respectively.

5. According to the prosecution, one Bibhishan Vithoba Khadle has been

murdered and six persons have been injured being Indubai, PW11 Dagadu

Gopinath Koyale,  PW18 Chaturbhuj Khade,  PW15 Bibhishan Kshirsagar,

Gopinath Mahadev Koyale and PW12 Kernath Koyale in the attack by the

accused.   

6. As per the prosecution version recorded in the FIR lodged by PW10

Satyabhama,  her  husband PW11 Dagadu Gopinath Koyale,  father-in-law

Gopinath Koyale,  deceased Bibhishan Vithoba Khadle,  PW18 Chaturbhuj

Khade, PW15 Bibhishan Kshirsagar along with others were present in their

house on the date of the occurrence on 13th November, 1988 at 12.00 noon

when all  the accused came there to attack her husband.  Accused No.3

Dada  Sayyednoor  Mulani  put  the  house  on  fire  on  account  of  which

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everyone came out. Accused Nos.1 and 2 Bhagwan Jagannath Markad and

Janardhan Rambhau Tate attacked Dagadu with swords on hands, legs and

knees. Accused No.3 Dada Sayyednoor had  barchi. Accused No.4 Sayyed

Sayyadnoor Mulani had knife.  Accused No.5 Sandipan Sakharam Koyale

had iron rods. Accused No.6 Nivrutti Sakharam Koyale had barchi. Accused

No.7 Krishna Sakharam Koyale had axe. Accused No.10 and 11 Babu Rama

Berad and Balu Naradeo Berad had axe. Accused No.8 Shailendra Sandipan

Koyale  had sticks.   PW11 Dagadu fell  down on account  of  beating  and

became  unconscious.   Accused  No.3  Dada  Sayyednoor,  accused  No.4

Sayyed  Sayyadnoor  Mulani,  accused  No.5  Sandipan  Sakharam  Koyale,

accused No.6 Nivrutti Sakharam Koyale, accused No.7 Krishna Sakharam

Koyale caused beating to the deceased Bibhishan Vithoba Khade.  Accused

Nos.1 and 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate

also attacked deceased Bibhishan Vithoba Khadle.  The accused then beat

PW11 Dagadu Gopinath Koyale and PW18 Chaturbhuj Khade with sticks

and swords.  The occurrence was a result of the enmity on account of party

faction in Panchayat and Co-operative Society elections.

7. In the statement before the court, apart from repeating above version,

PW10 Satyabhama further stated that a bullock cart was arranged to carry

injured Dagadu and the deceased Bibhishan Vithoba Khade upto the main

road and thereafter they were carried in a jeep.  On the way, the FIR was

lodged at 5.30 p.m. and thereafter the injured and the deceased were taken

to the PHC and then to the civil hospital.  PW11 Dagadu remained in the

hospital for three to four months and thereafter in private hospital for two

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to three months.   

8. After  registering  the  FIR,  investigation  was  carried  out  and

charge-sheet  was  submitted  before  the  Court.  The  accused  denied  the

charge.  Accused No.5 Sandipan Sakharam, however, stated that he was

called by Dagadu through deceased Bibhishan Vithoba Khade to his place

where  PW18  Chaturbhuj  Khade   and  PW12  Kernath  Koyale  were  also

present.  PW11 Dagadu told him that he should not contest the election.

The said accused, however, replied that PW11 Dagadu had been Sarpanch

for 10-12 years and thus, accused should be allowed to become Sarpanch.

This led to inter se assault between PW11 Dagadu and deceased Bibhishan

Vithoba Khade and the said accused was also assaulted by PW11 Dagadu.   

9. The prosecution led evidence comprising of medical evidence, recovery

of  material  objects,  eye-witnesses  and  the  investigation.  We  will  make

reference  only  to  the  relevant  evidence  on  record.   PW4  Dr.  Shravan

Gavhane conducted the post mortem on the body of the deceased and found

seven injuries.  Injury No.1 was on the head which was found to be fatal.

Injuries Nos. 2 to 7 were said to be with hard and blunt object like sticks or

swords.  PW5 Dr. Dinesh Kumar examined the injured PW11 Dagadu and

found 10 injuries  which included eight  incised  wounds,  two injuries  on

Gopinath  Mahadev  Koyale,  one  contused  wound  on  PW18  Chaturbhuj

Khade, three injuries on Murlidhar Yeshu Kshirsagar.  He also found one

incised wound on the right forearm of accused No.5 Sandipan Sakharam.

He found two injuries on Bibhishan PW15.

10. The  prosecution  relied  upon  the  eye  witness  account  rendered  by

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PW10  Satyabhama,  PW11  Dagadu,  PW15  Bibhishan  Kshirsagar,  PW18

Chaturbhuj Khade,  PW12 Kernath Koyale. PW2 Shivaji Fuge, PW3 Yuvraj

Koyale,  PW7  Bhimrao  and  PW9  Bhimrao  Dhavale  are  witnesses  to  the

recovery in pursuance of the statements under Section 27 of the Evidence

Act.  The Chemical Analyser’s report was also produced about the blood

group on some of the recovered articles.   

11. The trial Court rejected the prosecution version inter alia for following

reasons :

(i) Recovery  was  not  admissible  as  the  location  of  the  articles recovered was already known;

(ii) There was inordinate delay in sending the case property to the Chemical Analyser and possibility of tempering was not ruled out;

(iii) There was inconsistency in the evidence of PWs Kernath Koyale, Bibhishan  Vithoba  Khadle  and  Chaturbhuj  Khade  in  the manner of assault and the weapon used;

(iv) The prosecution did not examine Indubai and Gopinath; (v) Motive was not established as there was no immediate election

of the Panchayat or of the Cooperative Society; (vi) There  was  improvement  in  the  version  initially  given  to  the

police and the version put forward before the Court; and (vii) All  the  material  witnesses  are  either  related  or  otherwise

interested and their testimony could not be accepted in absence of corroboration in  material particulars.

12. The High Court observed that acquittal by the trial court was based on

omissions and contradictions which were not material and did not affect the

veracity of the prosecution case.  Thus, the trial Court adopted a “totally

perverse approach”.  It was observed :

“32. It is true that there are contradictions and omissions but none of them, according to  us,  is  vital  or  material.  They are regarding the particulars. When 7/8 persons are injured and assailants are about 16,  then these omissions are bound to  be there.  They are natural omissions and contradictions and the most important fact that wipes out  the  effect  of  these  contradictions  and  omissions  is  that  many persons from the side of complainant had received injuries, so also

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accused No.5. 33. This is not a case of exercising the right of self defence of the accused. No such plea was raised before us nor from the case of the prosecution any such plea can be permitted to be raised directly or indirectly  by the accused.  The accused are aggressors.  They have launched  attack  while  persons  from  the  complainant’s  side  had assembled to celebrate their Diwali.  Vasti was set to fire. Bibhishan Khade died in the said attack and many persons from the side of complainant  had  received  injuries.  The  assault  was  by  deadly weapons  like  sword,  barchi,  knife,  gupti  and  sticks.  This  was, therefore, not a case of clear cut acquittal of all the 16 accused.   No further corroboration is necessary. Investigation is prompt and swift and even if other evidence regarding recovery of incriminating articles is  not  considered,  the  oral  evidence  and  ocular  evidence  of  the aforesaid witnesses i.e. P.W.10, 11, 12, 13, 15 and 18 and others discussed  by  us  including  those  two  doctors  fully  prove  the prosecution case. The findings of the trial Court are totally perverse and therefore this appeal is required to be allowed, but to what extent and against which of the accused is the question. The close scrutiny of the evidence of eye witnesses particularly P.W.10, 11, 15 and 18 shows that P.W.10 has implicated accused Nos.1,2,3,5,6,7, 10 and 11. P.W.11 has implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11,  accused  No.3  set  fire  to  the  Vasti.  P.W.15 has implicated accused Nos.1,2,3,4,5,6, 10 and 11. P.W. 18 has implicated accused Nos.1,2,3,5,6,7  and according to him, accused No.3 set fire to the Vasti. Presence of accused No.5 Sandipan at the spot is fully proved, apart from other evidence, because of the injuries suffered by him. There are in all 16 accused. Considering the aforesaid evidence, this appeal  against  acquittal  has  to  be  allowed  in  respect  of  accused Nos.1,2,3,4,5,6,7, 10 and 11, and their acquittal is required to be set aside. So far as accused Nos.8,9,12,13,14,15 and 16 are concerned, their  acquittal  is  required  to  be  upheld.  Undoubtedly,  the  accused Nos.1 to 7 and 10 and 11 had formed an unlawful assembly with a common object of launching an assault. The house or vasti of Dagadu was set to fire. In the attack Bibhishan Khade died and P.W.11, 15 and 18 and others received injuries by deadly weapons. Therefore, for causing death of Bibhishan Khade the accused are required to be held guilty under Section 302 read with Section 149 of  the Indian Penal  Code  and  for  causing  severe  injuries  to  the  aforesaid prosecution witnesses and others, they are required to be held guilty under Sections 324 and 326 r/w 149 of the Indian Penal Code. So far as offence under Section 436 of the Indian Penal Code is concerned, the  evidence  of  the   prosecution  witnesses  is  not  consistent  and, therefore, nobody can be convicted under that section.”

13. We have heard learned counsel for the appellants on the one hand as

also learned counsel for the State and the complainant on the other and

with their assistance, gone through the material on record.

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14. Main  contention  raised  on  behalf  of  the  appellants  is  that  the

judgment of acquittal rendered by the trial Court was certainly a possible

view on appreciation of evidence and the High Court could not reverse the

same as there was no perversity.  The High Court has not fully discussed

the  evidence  nor  dealt  with  the  reasons  recorded by the  trial  Court  for

rejecting the prosecution version.  There was no explanation for the injury

suffered by accused No.5.  There are omissions and contradictions in the

version of the prosecution witnesses.  In the first version given by PW 12,

the accused have not been named and instead of recording the said version

as  FIR,  it  was  on  belated  statement  of  PW 10  which  was  an  improved

version that the FIR was registered.  The omissions in the statement made

to the police amount to contradictions as per explanation to Section 162

Cr.P.C.  Thus, the evidence of eye witnesses PWs10, 11, 12, 15 and 18 has

been rightly rejected by the trial court and could not be relied upon by the

High  Court.   Since  there  was  enmity  between  the  parties,  there  was

possibility  of  exaggeration  and  false  implication  and  it  was  not  safe  to

convict the appellants.  It was also submitted that since the incident was 28

years old, some of the appellants have become very old and ought not to be

convicted at this stage.  Reliance has been placed on the judgments of this

Court in  Padam Singh versus State of U.P.1, Devatha Venkataswamy

versus Public Prosecutor, High Court of A.P.2, Narendra Singh versus

1  (2000) 1 SCC 621

2  (2003) 10 SCC 700

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State of M.P.3,  Prasanna Das versus State of Orissa4,  Majjal versus

State of Haryana5, Lalita Kumari versus Govt. of U.P.6, and Baby alias

Sebastian  versus Central Inspector of Police7.

15. On the other hand, learned counsel for the State and the complainant,

supported the judgment of the High Court and pointed out that the reasons

for acquittal by the trial court were perverse and the High Court has duly

dealt  with  the  said  reasons  and  found  them to  be  perverse.   There  is

consistent evidence of injured eye witnesses which could not be altogether

brushed  aside.   Contradictions  and  omissions  which  are  not  vital  or

material are bound to be there in every case.  The same did not affect the

credibility of the main version that the accused caused the death of the

deceased and injuries to six persons on the complainant side.  The accused

formed unlawful assembly and action of even one accused in prosecution of

common object of the unlawful assembly or which was known to likely to be

so committed was action of all the accused in law.  It was not necessary to

prove individual  role  of  different accused.   The information by PW12 on

telephone was cryptic and could not be treated as FIR.  Therein though

name of accused No.5 was mentioned and it was further stated that he was

accompanied by others also, other details were not mentioned.  This was

3  (2004) 10 SCC 699

4  (2004) 13 SCC 30

5  (2013) 6 SCC 798

6  (2014) 2 SCC 1

7  (2016) 7 Scale 444

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not at par with the statement to be recorded by the officer in charge of the

Police Station under Section 154 CrPC which can be treated as FIR.  Thus,

the telephonic message could not be treated as FIR.  The statement of PW

10 made in the Police Station has rightly been treated as FIR.  The said

statement was prompt and could not be treated as an improved version.

The statement was corroborated by sworn testimony of the author of the

FIR before the Court which has been corroborated in all material particulars

by  four  other  injured  witnesses.   Thus,  the  evidence  on  record  fully

warranted conviction of the appellants and no interference was called for by

this Court.  Reliance has been placed on the judgments of this Court in

Damodar versus State of Rajasthan8,  Mano Dutt & Anr. Versus State

of  Uttar  Pradesh9,  Sanjeev  versus  State  of  Haryana10,  A.  Shankar

versus State of Karnataka11, State of Karnataka versus Suvarnamma

& Anr.12,  Bava Hajee  Hamsa versus  State  of  Kerala13,  Patai  Alias

Krishna Kumar versus State U.P.14, Ravishwar Manjhi versus State of

Jharkhand15, T.T. Antony versus State of Kerala16.  

8  (2004) 12 SCC 336

9  (2012) 4 SCC 79

10  (2015) 4 SCC 387

11  (2011) 6 SSC 279

12  (2015) 1 SCC 323

13  (1974) 4 SCC 479

14  (2010) 4 SCC 429

15  (2008) 16 SCC 561

16  (2001) 6 SCC 181

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16. We  have  given  due  consideration  to  the  rival  submissions.  The

question  for  consideration  is  whether  the  High  Court  was  justified  in

reversing the acquittal of the appellants on the basis of evidence available

on record.   

17. Before  considering  this  aspect  with  reference  to  the  evidence  on

record, we may advert to the settled principles of law dealing with the issues

arising  in  the  present  case.   The  approach  to  be  adopted  by  the  court

generally  in  appreciating  the  evidence  in  a  criminal  case  as  also  the

approach of  the appellate court is  discussed in several  decisions of  this

Court, some of which have been cited by learned counsel for the parties.  

18. It is accepted principle of criminal jurisprudence that the burden of

proof  is  always  on  the  prosecution  and  the  accused  is  presumed to  be

innocent  unless  proved  guilty.   The  prosecution  has  to  prove  its  case

beyond reasonable doubt and the accused is entitled to the benefit of the

reasonable doubt.  The reasonable doubt is one which occurs to a prudent

and reasonable man.  Section 3 of the Evidence Act refers to two conditions

– (i) when a person feels absolutely certain of a fact – “believe it to exist” and

(ii) when he is not absolutely certain and thinks it so extremely probable

that a prudent man would, under the circumstances, act on the assumption

of its existence.  The doubt which the law contemplates is not of a confused

mind  but  of  prudent  man  who  is  assumed  to  possess  the  capacity  to

“separate the chaff from the grain”.  The degree of proof need not reach

certainty but must carry a high degree of probability17  

17 Vijayee Singh vs. State of U.P.- (1990) 3 SCC 190, Paras18, 28-30

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19. While appreciating the evidence of a witness, the court has to assess

whether read as a whole, it is truthful.  In doing so, the court has to keep in

mind the deficiencies, drawbacks and infirmities to find out whether such

discrepancies shake the truthfulness.  Some discrepancies not touching the

core of the case are not enough to reject the evidence as a whole.  No true

witness  can  escape  from  giving  some  discrepant  details.   Only  when

discrepancies are so incompatible as to affect the credibility of the version of

a witness, the court may reject the evidence.  Section 155 of the Evidence

Act enables the doubt to impeach the credibility of the witness by proof of

former inconsistent statement.  Section 145 of the Evidence Act lays down

the procedure for contradicting a witness by drawing his attention to the

part of the previous statement which is to be used for contradiction.  The

former  statement  should  have  the  effect  of  discrediting  the  present

statement but merely because the latter  statement is  at  variance to the

former to some extent, it is not enough to be treated as a contradiction. It is

not every discrepancy which affects creditworthiness and trustworthiness of

a  witness.   There  may  at  times  be  exaggeration  or  embellishment  not

affecting credibility. The court has to sift the chaff from the grain and find

out the truth.   A statement may be partly  rejected or  partly  accepted18.

Want of independent witnesses or unusual behavior of witnesses of a crime

is not enough to reject evidence.  A witness being a close relative is not

enough to reject his testimony if it is otherwise credible.  A relation may not

conceal  the  actual  culprit.   The  evidence  may  be  closely  scrutinized  to

18  Leela Ram vs. State of Haryana (1999) 9 SCC 525, paras 9 - 13

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assess  whether  an  innocent  person  is  falsely  implicated.   Mechanical

rejection of evidence even of a ‘partisan’ or ‘interested’ witness may lead to

failure of justice.  It is well known that principle “falsus in uno, falsus in

omnibus”  has  no  general  acceptability19.  On  the  same  evidence,  some

accused  persons  may  be  acquitted  while  others  may  be  convicted,

depending upon the nature of the offence.  The court can differentiate the

accused who is acquitted from those who are convicted. A witness may be

untruthful  in  some  aspects  but  the  other  part  of  the  evidence  may  be

worthy of acceptance.  Discrepancies may arise due to error of observations,

loss of memory due to lapse of time, mental disposition such as shock at

the time of occurrence and as such the normal discrepancy does not affect

the credibility of a witness.  

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of

justice.  Letting the guilty escape is not doing justice.  A Judge presides over

the trial not only to ensure that no innocent is punished but also to see that

guilty does not escape.20   

21. An offence committed in prosecution of common object of an unlawful

assembly by one person renders members of unlawful assembly sharing the

common object vicariously liable for the offence.  The common object has to

be ascertained from the acts and language of the members of the assembly

and all the surrounding circumstances.  It can be gathered from the course

of conduct of the members.  It is to be assessed keeping in view the nature

19   Gangadhar Behera vs. State of Orissa (2002) 8 SCC 381 -para 15

20  Gangadhar Behera (supra), para 17

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of  the  assembly,  arms carried  by the  members and the  behavior  of  the

members at or near the scene of incident.  Sharing of common object is a

mental attitude which is to be gathered from the act of a person and result

thereof.  No hard and fast rule can be laid down as to when common object

can be inferred.  When a crowd of assailants are members of an unlawful

assembly, it may not be possible for witnesses to accurately describe the

part played by each one of the assailants.  It may not be necessary that all

members take part in the actual assault21.  In Gangadhar Behera (supra),

this Court observed :  

“25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge Bench of this Court in Masalti case [AIR 1965 SC 202] observed as follows:  

“15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly  proceeds  to  commit  an  offence  of  murder  in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several  weapons were  carried  by  different  members  of  the unlawful assembly, but it appears that the guns were used and that  was enough to  kill  5  persons.  In  such  a  case,  it would  be  unreasonable  to  contend  that  because  the  other weapons carried by the members of  the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and

21  Gangadhar Behera (supra), paras 22-24

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which is not.”

22. We have referred to the above settled principles as the trial court has

adopted perverse approach in rejecting the entire evidence comprising of

injured eye witnesses when one person has been killed and six others have

been injured.  The trial court ignored the above principles by mechanically

rejecting  the  evidence  of  all  the  witnesses  by  finding  one  or  the  other

contradiction.  The occurrence has taken place in broad day light.  One of

the  accused  himself  mentioned  about  the  enmity  on  account  of  the

panchayat  election.  The said accused himself is injured which proves his

presence at the scene of the occurrence.  This version further shows the

presence of deceased and the injured.  But his version fails to explain as to

why the deceased would have been killed by PW11 when the deceased was

the  messenger  of  PW11  himself.   Except  for  some  contradictions,  the

version of eye witnesses PWs 10, 11, 15, 12 and 18 is consistent.  There is

no reason to reject the said version.  Of course, the court has to be cautious

in appreciating evidence and rule out exaggeration.   

23. We may also note that version of A5 is not probable and mere fact that

injury  on  him is  not  explained  is  not  enough  to  reject  the  prosecution

version.   In  such  a  case,  the  Court  is  to  examine  whether  evidence  is

trustworthy.  This aspect has been repeatedly examined by this Court and

settled law is that non explanation of injuries on accused is an important

circumstance which requires the court to satisfy itself that true version is

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not  suppressed and whether  defence version is  probable22,23,24.   This  by

itself is not enough to reject the prosecution case.

24. To  demonstrate  that  the  approach  of  the  trial  court  is  outrightly

perverse, some of the observations are put in :

“  But  in  general  terms  she  has  stated  that  accused  came  with weapons.   Similarly  it  is  admitted  by  her  during  the cross-examination  that  she  has  not  stated  assault  by  particular accused on the person of Bibhishan Khade.  But she has stated in general terms that Bibhishan was assaulted by the accused.  Moreover it is to be noted that she has admitted that Dagadu and Bibhishan were assaulted by said weapons like cutting a wood by an axe, sword and barchi.  But there is no piercing wound or cut injury on the person of deceased Bibhishan as well as Dagadu. Moreover it  is  in  her complaint  that  she had been to the vasti  of Murlidhar and Bibhishan Kshirsagar to hand over the break fast to Dagadu.  But  the  evidence  of  PWs  and  Dagadu  and  other  eye witnesses disclose that they all had been to the house of Murlidhar Kshirsagar for Diwali snacks and there Dagadu invited for meals in the noon time.  Hence, all the eye-witnesses mentioned above had been  to  the  vasti  of  Dagadu.   But  P.W.  Dagadu,  Kernath,  P.W. Bibhishan Kshirsagar and P.W. Chaturbhuj disclose that they were called  for  the  Diwali  snacks  and  not  for  meals  in  the  house  of Dagadu. It is to noted that if Dagadu was invited for Diwali snacks in the house of Murlidhar kshirsagar then there was no necessity to take breakfast  for  Dagadu to  the  house of  Murlidhar  Kshirsagar. Considering all the aspects the evidence of the complaint cannot be accepted. ”

25. Similar is the appreciation by the trial court of other witnesses.  Since

rejection of eye witness account is uncalled for, other reasons given by trial

court are not sufficient to reject the prosecution case.  Even if recoveries or

Chemical  Analyzer’s  report  are  disregardedly  the  same  have  only

corroborative value, prosecution case is established by credible eye witness

22  Vijayee Singh (supra), para 9

23  (2001) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing

24  (2012) 4 SCC 79-Mano Dutt vs. State of U.P.

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account.  Mere fact that some of the witnesses have not been examined is

also of no consequence when credible evidence to prove the case has been

produced.  We thus, find that the High Court rightly reversed the trial Court

judgment.   

26. One of the submission of learned counsel for the appellants is that

telephonic  message by PW12 recorded at  the police  station should have

been treated as FIR. We have been taken through the said message which is

to the effect that A5 and other accused assaulted the complainant party.

Learned counsel relied upon the observation in  Lalita Kumari (supra) to

the effect that a GD Entry can also be treated as FIR in an appropriate case.

From the said observation, it cannot be laid down that every GD Entry or

every cryptic information must be treated as FIR.  In Anand Mohan versus

State of Bihar25 while referring to Section 154 Cr.P.C., this Court observed

that every cryptic information, even if not signed by the person giving the

information, cannot be treated as FIR.  The information should sufficiently

disclose the nature of the offence and the manner in which the offence was

committed.  It was observed :

“50.  In  Sk.  Ishaque  v.  State  of  Bihar  [(1995)  3  SCC  392]   Gulabi Paswan gave a cryptic information at the police station to the effect that there was a commotion at the village as firing and brickbatting was going on and this Court held that this cryptic information did not even  disclose  the  commission  of  a  cognizable  offence  nor  did  it disclose who were the assailants and such a cryptic  statement of Gulabi Paswan cannot be treated to be an FIR within the meaning of Section 154 CrPC.

51. Similarly, in Binay Kumar Singh v. State of Bihar [(1997) 1 SCC 283]  information was furnished to the police in Ext. 10/3 by Rabindra Bhagat that the sons of late Ram Niranjan Sharma along

25  (2012) 7 SCC 225

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with large number of persons in his village had set fire to the houses and piles of straws and had also resorted to firing. This Court held that  Ext.  10/3  is  evidently  a  cryptic  information  and  is  hardly sufficient  to  discern  the  commission  of  any  cognizable  offence therefrom.”

27. Similar view has been taken by this Court in Damodar (supra), T.T.

Antony (supra),  Patai Alias Krishna Kumar (supra)   and  Ravishwar

Manjhi (supra).

28. Learned counsel for the appellants also criticized the judgment of the

High Court by submitting that the principles laid down by this Court in

Padam  Singh  (supra),  Devatha  Venkataswamy  (supra),  Narendra

Singh (supra),  Prasanna Das (supra),  Majjal  (supra),  Lalita  Kumari

(supra),  and  Baby  (supra) for  exercise of  appellate jurisdiction have not

been followed.  The appellate court should deal with reasons for acquittal

and  interfere  only  if  acquittal  is  perverse.  There  is  no  doubt  about  the

proposition  that  the  appellate  court  has  to  arrive  at  an  independent

conclusion about the credibility of  the evidence and to re-appreciate the

evidence to arrive at a just conclusion.  If the appellate court is to reverse

the judgment of the trial court, the reasoning of the trial court has to be

adverted to and reversal of acquittal is permissible only if the view of the

trial court is not only erroneous but also unreasonable and perverse. At the

same time, the appellate court has full power to review the evidence and to

reach at its own conclusion.  The appellate court can set aside the acquittal

if  the  acquittal  is  not  justified.   Of  course,  the  appellate  court  has  to

consider the fact that the trial court has the benefit of seeing the witnesses

in the witness box and the presumption of innocence is not weakened by

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the acquittal.  If two reasonable conclusions can be reached, the appellate

court should not disturb the finding of the trial court.  In the present case,

the High Court has followed the above principles.

29. In  Bava  Hajee  Hamsa  (supra)   while  approving  the  reversal  of

acquittal by the High Court, it was held that erroneous approach of the trial

Court led to misdirection in appraising the evidence and the High Court was

justified in rejecting the approach of the trial court and in analyzing the

evidence in its own way.   This Court observed :

“30. We agree with the High Court that the very “scheme of approach” adopted by the trial Judge was faulty and misleading. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. The learned trial Judge started correctly when on a broad look of the evidence, he found the evidence of PWs 1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reversed his mind at the end of the third round of circumgyratory discussion. In such cases where large number of persons are involved and in the commotion some persons  cause  injuries  to  others  and  the  evidence  is  of  a  partisan character,  it  is  often  safer  for  the  Judge  of  fact  to  be  guided  by  the compass  of  probabilities  along  the  rock-ribbed  contours  of  the  case converging on the heart of the matter. Once the court goes astray from the basic  features  of  the  case,  it  is  apt  to  lose  itself  in  the  labyrinths  of immaterial  details,  desultory  discussion  and  vacillation  arising  from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscentious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees. The learned Judges of the High Court were, therefore, right in discarding altogether the basically wrong “scheme of approach” adopted by the trial court, and in analysing the evidence in their own way.”

30. As already observed, the discrepancies of trivial nature could not be

the  basis  of  rejecting  the  evidence  of  injured  eye  witnesses  nor

non-examination  of  some  of  the  witnesses  be  a  ground  to  reject  the

prosecution case when injured eye witnesses were examined.  

31. We may also refer to the judgment of this Court in  Masalti versus

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State  of  U.P.26 to  the  effect  that  the  evidence  of  interested  partisan

witnesses though required to be carefully weighed, the same could not be

discredited mechanically.  When a crowd of unlawful assembly commits an

offence, it is often not possible to accurately describe the part played by

each of the assailants.  Though the appreciation of evidence in such cases

may be a difficult  task,  the court  has to  perform its  duty of  sifting the

evidence carefully.

32. Applying the above principles to the present case, it is clear that all

the five eye witnesses have named A1 to A7.  Other accused have not been

named by PW11 and PW18.  By way of abundant caution, we give benefit of

doubt to A10 and A11 for the reason that they have not been named by

PW11 and PW18 and also for the reason that PW10 has attributed specific

role only to A1 to A7.  But as far as A1 to A7 are concerned (A2 has already

died) all the five witnesses have consistently named them.  A1 to A7 have

been assigned specific role in assaulting the deceased. Their conviction and

sentence under Section 302/149 of the IPC has to be upheld.   

33. For the above reasons, this appeal is partly allowed to the extent that

appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo Berad)  are

given benefit of doubt and are acquitted.  They be released from custody, if

not required in any other case.  Appeal of other appellants is dismissed.

However,  appellant  Nos.5 and 6 (Nivrutti  Sakharam Koyale  and Krishna

Sakharam Koyale) will continue to remain on bail for one month and if they

make an application for remission of the remaining sentence on the ground

26  (1964) 8 SCR 133

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of advanced age within one month, they will  continue to remain on bail

thereafter  till  the  decision  of  the  said  application  by  the  appropriate

authority.  If  their  application  for  remission  is  not  accepted,  they  will

surrender to serve out the remaining sentence.

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

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

NEW DELHI;  OCTOBER 04, 2016.