Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1008 OF 2008

Pooranlal & Anr.         Appellant(s)

VERSUS

The State of Madhya Pradesh       Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This appeal is filed by the two accused persons

against  the  Judgment/order  of  the  High  Court  of

Madhya  Pradesh  at  Jabalpur  dated  08.12.2006  in

Criminal  Appeal  No.934  of  1991  whereby  the  High

Court  partly  allowed  the  appeal  filed  by  the  State

against  the  acquittal  order  dated  07.05.1991  of  the

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Additional  Sessions  Judge,  Khurai,  Dist.  Sagar  in

Sessions Trial No.340 of 1990.  The High Court while

upholding  the  acquittal  of  other  three  accused  set

aside  the  acquittal  of  the  appellants  herein  and

convicted  them  for  an  offence   punishable  under

Section 304 Part II read with Section 34 of the Indian

Penal Code, 1860 (hereinafter referred to as ‘IPC’) and

awarded  each  of  them  to  undergo  rigorous

imprisonment for a term of five years and to pay a fine

of Rs.2000/- each and, in default of payment of fine, to

further undergo simple imprisonment for a period of

three months.     

2) In order to appreciate the issues arising in the

appeal, relevant facts need mention infra.

3) In short, the case of the prosecution on which the

trial  against  the appellants and other  three accused

proceeded was as follows:   

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4) One Hariya (deceased) was the resident of Village

Kublai.  He was a railway employee. On 30.08.1990, at

around 5.00 a.m.,  he left for nearby Village-Khurai on

a cycle to catch a Train to join his duty at a nearby

place.   At that time, it was heavily raining.   When

Hariya was passing through a Mahua tree in village -

Nirtala, one person suddenly got down from the tree

and  hit  him with  the  Lathi  (stick).   Thereafter  four

more persons armed with Lathis came there and took

him away from the  road.   All  the  five  persons then

assaulted him with Lathies saying in Hindi "maro sale

ko,  bada  panch  bana  firta  hai”  (beat  him bastard  -

what does he think of him by becoming Panch-Head).   

5) At that time, two sons of Hariya, namely, Ramesh

(PW-1) and Banshi (PW-2) were also reached there on

their  cycle  as  they  were  also  going  to  earn  their

livelihood in nearby village. One Daryao Singh(PW-3)-a

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villager, who  was going on his tractor to fill diesel in

his tractor, also reached there.          

6) These persons witnessed the incident of beating

and, therefore, ran towards Hariya to save him from

the  assailants.   The  assailants,  on  noticing  that  a

group of persons is fastly approaching at the scene of

occurrence,  ran  away  from  there  leaving  injured

Hariya lying on the roadside.

7) Ramesh  (PW-1),  Banshi  (PW-2),  Daryao  Singh

(PW-3) and some other persons took Hariya to Police

Station, Khurai in a tractor where he lodged the FIR

(Ex.  P-33).   Hariya  was  then  taken  to  the  Civil

Hospital,  Khurai  for  medical  treatment.  Dr.  Rakesh

Saxena  (PW-11)  found  11  injuries  on  the  body  of

Hariya.   In  the  meantime,  the  SHO  Police  Station,

Khurai brought Naib Tahsildar, B.P. Shukla (PW-9) in

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the Hospital for recording dying declaration of Hariya.

It was accordingly recorded (Ex.P-20).  

8) Hariya  struggled  for  survival  but  eventually

succumbed to the injuries on 13.09.1990 almost after

14  days  of  the  incident.  Dr.  Prabhat  Bharadwaj

(PW-14) performed the post mortem of his dead body.  

9) According to the prosecution, the assailants and

Hariya belonged to the same caste. There was previous

enmity between one assailant-Gaya Prasad and Hariya

due to some verbal utterances, which were exchanged

between both of them in a marriage wherein the Samaj

Panchayat of which Hariya was the head, had imposed

some fine on Gaya Prasad.  It is due to this reason,

this incident took place.

10) The  Police  Authorities  then  undertook  the

investigation,  which  included  collecting  of  material

evidence, preparation of site map, blood stained earth

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from  the  place  of  occurrence,  apprehending  five

accused  persons,  namely,  (1)  Pooranlal  (2)  Gaya

Prasad  (3)  Mahendra  (4)  Shyamlal  and  (5)  Ramlal,

their custodial interrogation, recording of statement of

several witnesses, recovery of sticks etc.   

11) The  five  accused  persons  were  accordingly

charged with the offences punishable under Sections

148, 302/149 and 342  IPC.  All the accused persons

abjured their  guilt  and took a stand that  they have

been  falsely  implicated  in  the  case.   So  far  as

Pooranlal,  Shyamlal  and Ramlal  are concerned,  they

took a plea that they never had any enmity with the

deceased because they reside in some other village.  

12) To prove its case, the prosecution examined 17

witnesses. The learned Trial Judge, in his order dated

07.05.1991,  recorded  a  finding  that  the  prosecution

has failed to prove the charges against all the accused

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persons beyond the shadow of doubt and accordingly

proceeded to record the finding of "not guilty" against

all of them.  In other words, the Trial Court acquitted

all the five accused persons from the charges.

13) Challenging the order of acquittal, the State filed

appeal before the High Court.  By impugned judgment,

the High Court partly allowed the appeal filed by the

State.  The High Court  upheld  the  acquittal  of  three

accused,  namely,  Mahindra,  Shaymalal  and  Ramlal

but reversed the order of acquittal against two accused

persons,  namely,  Pooranlal  and  Gaya  Prasad  and

convicted both the accused under Section 304 Part II

read with Section 34 IPC and sentenced each of them

to undergo rigorous imprisonment for five years’ and a

fine of Rs.2000/- each and, in default of payment of

fine,  to  further  undergo  three  months’  simple

imprisonment.

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14) Felt  aggrieved,  accused  Pooranlal  and  Gaya

Prasad have filed this appeal by way of special leave

against  the  judgment  of  the  High Court  challenging

their conviction. So far as the State is concerned, they

accepted the order of the High Court by which three

accused,  namely,  Mahendra,  Shyamal  and  Ramlal

were acquitted.  In this view of the matter, the order of

acquittal  of  three accused named above has become

final.  

15) Therefore,  the  only  question,  which  arises  for

consideration in this appeal, is whether the High Court

was justified in setting aside the order of acquittal of

Pooranlal  and  Gaya  Prasad  (appellants  herein)  and

was also  justified  in  convicting both of  them for  an

offence punishable under Section 304 Part II read with

Section 34 IPC?

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16) Heard Mr. Vijay Pratap Singh, learned counsel for

the  appellants  and  Mr.  Sunny  Choudhary,  learned

counsel for the respondent.

17) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal.  In other words, in our opinion,

the  High  Court  was  justified  in  setting  aside  the

acquittal  order  in  respect  of  the  appellants  and

convicting them under Section 304 Part II  read with

Section 34 IPC.

18) This is how the High Court dealt with the case of

the appellants while separating their case from other

three accused in Paras 22 to 26 and found them guilty

for commission of offence in question:

“22.  Thus,  even  after  ignoring  the  eye-witness account available on record, the conviction of R-1 Pooran and R-2 Gayaprasad could be founded on the First Information Report (Ex.P-33),  lodged by the deceased, and his dying-declaration (Ex.P-20). In  the  aforesaid  two  documents,  there  is

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consistency with regard to the motive prevailing in their  minds  and  overt  act  of  accused  Pooranlal, who had caused injury on the head of the deceased even  though  no  bony  fracture  was  found  and subsequent assault by other including Gayaprasad. However, it is also to be noticed that no opinion has been expressed by Autopsy Surgeon PW-14 Dr. Prabhat Bharadwaj that injury was sufficient in the ordinary  course  of  nature  to  have  caused  death. Further, admittedly, the deceased had survived for 14 days after the incident.

23. Keeping all these factors in mind, we are of the opinion  that  as  far  as  finding  of  ‘not  guilty’ recorded against Mahendra, Shyamlal and Ramlal is  concerned,  it  calls  for  no interference,  as  the same is based on proper appreciation of evidence. Nothing  could  be  pointed  out  to  us  that  finding against them is also perverse, but as regards the finding  in  favour  of  R-1  Pooranlal  and  R-2 Gayaprasad, it is not only contrary to the evidence on record, but is also perverse and unreasonable.

24.  However,  as  noted  already,  R-2  Gayaprasad only  intended  to  settle  score  with  Hariya  for insulting him by requiring to pay the amount of fine  for  participating in the marriage of  Hariya’s son.  In other words, while striking the lathi blows, none of them had any intention to kill Hariya.  In this  view  of  the  matter,  R-1  Pooranlal  and  R-2 Gayaprasad  deserved  to  be  convicted  for commission  of  offence  of  culpable  homicide  not amounting to murder and punishable under Secton 304 Part II of the IPC: See AIR 1987 SC 1265 (State of Orissa vs. Bhagwan Barik) and AIR 2000 SC 1374 (Camila Vaz vs. State of Goa.)

25.  The  incident  had  occurred  nearly  16  years before and the R-1 Pooranlal and R-2 Gayaprasad were  released  on  bail  during  pendency  of  this appeal.   In  these  circumstances,  sentence  of rigorous imprisonment for a term of 5 years with

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fine of Rs.2000/- would be sufficient to meet the ends of justice.

26.  Accordingly,  the  appeal  against  acquittal  of Mahendra,  Shyamlal  and  Ramlal  is  hereby dismissed,  but  stands  allowed  in  part  against Pooranlal  and Gayaprasad.   While  affirming  their acquittal  in  respect  of  the  offences  punishable under Sections 148, 302, 302 read with 149 and 342 of the IPC, we convict R-1 Pooranlal and R-2 Gayaprasad  for  having  committed  an  offence punishable  under  Section  304  Part  II  read  with Section  34  of  the  IPC.   Each  one  of  them  is sentenced to undergo rigorous imprisonment for a term of 5 years and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo simple imprisonment for a period of 3 months.”

19) We  find  no  good  ground  to  interfere  with  the

aforementioned  findings  of  the  High  Court.   In  our

opinion, the findings of the High Court are based on

proper appreciation of evidence which the High Court

was entitled to record in an appeal arising out of the

order of acquittal once the leave to file the appeal to

challenge  the  order  of  acquittal  was  granted  to  the

State by the High Court.  

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20) In other words,  the High Court was entitled to

appreciate the evidence with a view to find out as to

whether the finding of acquittal recorded by the Trial

Court  was  legal  or/and  proper  and  was,  therefore,

entitled to record its own finding of either affirmance

or reversal.

21) The evidence available on record, in our opinion,

did  establish  beyond  reasonable  doubt  that  the

appellants’ case was capable of being separated from

other three accused with a view to find out their role in

the incident as against the other three accused.  

22) This we say for the reasons that, first, there was

no  motive  on  the  part  of  the  accused  persons

(appellants) to kill Hariya.  Second, the intention was

to teach a lesson to Hariya because he had insulted

Gaya Prasad in Panchayat on an incident which had

occurred  in  marriage  in  their  community  in  recent

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past.   Third,  Dr.  Bharadwaj  (PW-14)  who performed

post mortem did not say in his evidence that injuries

caused to Hariya were sufficient in the ordinary course

of  nature  to  have  caused  death,  and  lastly,  Hariya

survived for 14 days from the date of incident.

23) In  the  facts  and  circumstances  of  the  case  as

taken note of supra, we are of the considered opinion

that these factors were rightly taken into consideration

for holding the appellants guilty for committing offence

falling under Section 304 Part II of IPC.

24) Learned  counsel  for  the  appellants,  no  doubt,

vehemently  argued  that  the  appellants  should  also

have  been  acquitted  like  the  other  three  accused

named above.  It  was also his submission that there

was no evidence much less sufficient evidence against

the appellants for holding them guilty for an offence

falling under Section 304 Part II IPC.  

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25) However, in the light of what we have discussed

above wherein we have given our reasoning, it is not

possible to accept the submission of learned counsel

for the appellants.  Moreover, we cannot again de novo

re-appreciate  the  evidence.   It  is  not  permissible

unless  the  findings  of  the  High  Court  are  wholly

perverse or against the evidence.  Such is not the case

here.

26) In the light of  foregoing discussion,  we find no

merit  in  the  appeal.   The  appeal  thus  fails  and  is

accordingly  dismissed  resulting  in  upholding  of  the

order of the High Court.

27) As  a  result  thereof,  the  bail  granted  to  Gaya

Prasad  (appellant  No.2)  by  this  Court’s  order  dated

13.04.2009  stands  cancelled.  He  is  directed  to

surrender  and  undergo  the  remaining  jail  sentence

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awarded by the High Court in case, he has not so far

undergone awarded sentence.  

28) So far as Pooranlal (appellant No.1) is concerned,

since he had not applied for bail, it may be that during

this period he may have completed his full period of

jail sentence.  Since learned counsel for the appellants

is unable to make any statement on this issue, we are

of the view that the Trial Court will verify this fact from

jail  records  and  other  relevant  material  and  after

ascertaining as to how much jail  sentence Pooranlal

had  already  undergone  out  of  five  years,  will

accordingly pass necessary orders.  

………..................................J.           [R.K. AGRAWAL]

                                .……...................................J.           [ABHAY MANOHAR SAPRE]

       New Delhi; October 25, 2017  

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