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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1418 of 2014 Soyebbhai Yusufbhai Bharania & Ors.         ...Appellant(s)

:VERSUS:

State of Gujarat                        ...Respondent(s)

J U D G M E N T Pinaki Chandra Ghose, J.

1. This appeal is directed against the judgment and order dated

29.11.2013 passed by the High Court of Gujarat at Ahmedabad in

Criminal Appeal No.1747 of 2010 with Criminal Appeal Nos.2223 &

2224 of 2010, whereby the High Court dismissed the appeal of the

appellants herein and confirmed their conviction and sentence for

various  offences  punishable  under  Sections  302,  147,  148 read

with  Section  149  of  the  Indian  Penal  Code,  1860  (hereinafter

referred to as “IPC”).

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2. The brief facts necessary to dispose of these appeals are that

on  04.07.2009,  at  about  3:00  a.m.,  while  one  Rameshbhai

Prajapati  (since  deceased),  who  was  the  Taluka  President  of

Shivsena, his wife Bhavnaben and their children were sleeping, the

accused persons assaulted the deceased in sleeping condition with

a large knife because even after protest of  the accused persons,

younger brother of the deceased got married with a woman hailing

from the community of the accused. Rameshbhai died on the spot

and the whole incident was seen by his wife Bhavnaben (PW1) as

she woke up. The accused after  killing  the deceased escaped from

there.

3. The  law was  set  into  motion upon lodging  of  FIR  by  PW1

(complainant)  on  04.07.2009  at  06:15  a.m.,  at  Vagdod  Police

Station.  The  FIR  was  registered  as  C.R.No.69  of  2009.  The

post-mortem of  the deceased was performed by Dr. Mayankbhai

Vrajlal Sheth (PW2). As per the deposition of PW-2 with regard to

post-mortem of the deceased, marked Exh. 25, there were injuries

on artery, veins and windpipe due to injury caused on the throat

by large knife.

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4. Upon  completion  of  investigation,  charge-sheet  under

Sections 147, 148, 149, 302 and 120-B of the IPC was filed on

29.09.2009 in the Court of Judicial Magistrate, First Class, Patan,

which was registered vide Criminal case No.4108 of 2009. However,

the case being exclusively triable by the Court of Sessions, Surat,

the same was committed to the Sessions Court under Section 209

of  the  Cr.P.C.  Accordingly,  a  Sessions  Case  No.72 of  2009 was

registered  against  the  accused.  Thereafter,  upon the  case  being

transferred  to  the  Court  of  Additional  Sessions  Judge,  (FTC-2),

Patan,  charges  were  framed  against  the  accused  persons  vide

Exh.8, for the offences punishable under Sections 147, 148, 149,

302 and 120-B of IPC. After the accused persons denied the said

charges in their statements vide Exhibit Nos.9 to 13, the evidence

of prosecution witnesses was recorded.  

5. Upon recording the evidence of the prosecution witnesses and

after  considering  all  the  relevant  facts,  the  Trial  Court  vide  its

judgment and order dated 16.08.2010 convicted accused Nos.1 to

4 for the offences punishable under Sections 302, 147 and 148

read with 149 of IPC and sentenced them to imprisonment for life

and to pay a fine of Rs. 2,000/- and, in case of default to pay fine,

to undergo further simple imprisonment for six months. However,

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the Trial Court acquitted accused No.5 - Umarbhai for the offences

punishable under Sections 147, 148, 149, 302 and 120-B of the

IPC, and acquitted rest of the accused for the offences punishable

under Section 120-B of the IPC. It was further ordered that if the

accused Nos.1 to 4 pay the amount of  fine,  then an amount of

Rs.8,000/- be paid as compensation to the complainant on behalf

of all the dependants. Being aggrieved by the aforesaid judgment

and order of the Trial Court, the accused persons filed an appeal

before the High Court.  While accused preferred Criminal  Appeal

No.1747 of 2010 against order of  their conviction and sentence,

Criminal Appeal Nos.2223 & 2224 of 2010 were preferred by the

State for enhancement of the sentence and against the acquittal of

accused No.5, respectively.  

6. The  High  Court  vide  its  judgment  and  order  dated

29.11.2013, dismissed the aforesaid appeals filed by the State. The

High Court partly allowed Criminal Appeal No.1747 of 2010 filed by

the  accused  persons  and  thereby  quashed  and  set-aside  the

judgment and order of conviction and sentence passed by the Trial

Court  qua  accused  No.4  and  he  was  acquitted.  However,  the

judgment and order of conviction and sentence passed by the Trial

Court qua accused Nos.1, 2 & 3 was confirmed.  Aggrieved by the

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aforesaid  judgment  and  order  passed  by  the  High  Court,  the

accused persons have sought to challenge the same before us in

this appeal.  

7. We have heard the learned counsel appearing for the accused

appellants  as  also  the  learned  counsel  appearing  for  the

respondent and have perused the oral and documentary evidence

on record.   8. A  two-Judge  Bench  of  this  Court  has  formulated  the

principles for the exercise of jurisdiction in a petition under Article

136 of the Constitution of India in Ganga Kumar Srivastava Vs.

State of Bihar, (2005) 6 SCC 211, in the following terms:  

i. “The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this  Court  does  not  interfere  with  the  concurrent findings  of  the  fact  save  in  exceptional circumstances.  

ii. It is open to this Court to interfere with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.  

iii. It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as  and  when a  question of  law of  general  public importance  arises  or  a  decision  shocks  the conscience of the Court.  

iv. When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.

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v. Where the appreciation of  evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the  conclusions  of  the  High  Court  are  manifestly perverse and unsupportable from the evidence on record.”  

9. Keeping in mind the above position of law as enunciated and

settled by a series of decisions of this Court, we shall now examine

the evidence adduced by the parties and the materials on record

and see that in view of the nature of offence alleged to have been

committed by the appellants, whether the concurrent findings of

fact call for interference in the facts and circumstances of the case.

10. In the present case, there have been concurrent findings as to

the  guilt  of  the  accused  persons  by  both  the  Courts  below.  In

upholding the judgment and order of conviction of the Trial Court,

the  High  Court  had  primarily  relied  upon  the  evidence  of

eye-witnesses, namely, PW1 who was found to be trustworthy. The

weapon,  being  knife,  was  recovered  and  Panchnama  was  also

proved.  The High Court held that the accused were sharing the

common object of causing injuries to the deceased.

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11. Further, looking to the evidence given by PW5, one Dahyabhai

Dalabhai Patel and PW6, Kurashibhai Jivabhai Desai, recovery of

the  weapon,  being  large  knife  with  plastic  handle,  was

corroborated.   However  it  is  also  true  that  PW5  was  declared

hostile who had stated that appellant No.1 had taken out the large

knife  from the  dump heap.  It  was further  stated that  no blood

stains were found on the knife.

12. The High Court  relied upon the  judgment  of  this  Court  in

Mookkiah  &  Anr.  Vs. State,  represented  by  Inspector  of

Police, Tamil Nadu, (2013) 2 SCC 89, in support of the aforesaid

conclusion, wherein this Court held:

“9.  It  is  not  in  dispute  that  the  trial  court,  on appreciation of oral and documentary evidence led in by the  prosecution and defence,  acquitted  the  accused in respect of the charges levelled against them. On appeal by  the  State,  the  High Court,  by  the  impugned order, reversed  the  said  decision  and  convicted  the  accused under Section 302 read with Section 34 IPC and awarded RI for life. Since the counsel for the appellants very much emphasized  that  the  High  Court  has  exceeded  its jurisdiction  in  upsetting  the  order  of  acquittal  into conviction,  let  us  analyse  the  scope  and  power  of  the High  Court  in  an  appeal  filed  against  the  order  of acquittal.   

10. This Court in a series of decisions has repeatedly laid down that  

‘3…as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also

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entitled, and obliged as well, to scan through and if need be  reappreciate  the  entire  evidence,  though  while choosing  to  interfere  only  the  court  should  find  an absolute  assurance  of  the  guilt  on  the  basis  of  the evidence  on  record  and  not  merely  because  the  High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal.  [Vide State of Rajasthan Vs. Sohan Lal & Ors., (2004) 5 SCC 573]”.  

Thus, looking to the deposition of the prosecution witnesses, the

offence of  murder of  the Rameshbhai Prajapati  has been proved

beyond all reasonable doubt against the accused.

13. Mr.  Huzefa  Ahmadi,  learned  senior  counsel  appearing  on

behalf of the appellants contended that both the Courts below have

committed  an  error  in  convicting  the  appellants  for  the  offence

punishable under Section 302 IPC along with two other accused.

When the High Court had acquitted accused No.4 and confirmed

the  acquittal  of  accused  No.5,  no  conviction  could  have  been

recorded of the remaining three accused for an offence punishable

under Section 302 IPC.

14. Learned senior counsel further submitted that the proposition

submitted  by  the  State  are  incorrect  in  view  of  the  fact  that

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Section 149 is not attracted in the absence of the overt act being

attributed to each accused, since there is no finding to the effect

that five or more persons were involved in the act. In support of

this submission, he relied on  Manmeet Singh alias Goldie  Vs.

State of Punjab, (2015) 7 SCC 167, wherein this Court observed

as under:-

“With reference to the offence of  dacoity under Section 391 IPC in particular and the import of Section 149 IPC, this Court in Raj Kumar vs. State of Uttaranchal (2008) 11 SCC 709 had propounded that in the absence of  a finding about the involvement of five or more persons, an accused cannot be convicted for such an offence. Their Lordships, however, clarified that in a given case it could happen that there might be five or more persons and the factum  of  their  presence  either  is  not  disputed  or  is clearly  established,  but  the  court  may  not  be  able  to record  a  finding  as  to  their  identity  resulting  in  their acquittal as a result thereof. It was held that in such a case, conviction of less than five persons or even one can stand, but in the absence of a finding about the presence or  participation of  five  or  more persons,  less than five persons cannot be convicted for an offence of dacoity.”

PW1  in  her  deposition  vide  Exhibit  No.20  had  identified  the

accused.  However, she had not attributed any specific act to any

of the accused.

15. It has been contented by the learned senior counsel for the

appellants  that  the  evidence  of  PW1  is  vague  and  not  reliable.

About motive,  she vaguely  states that  the deceased was Taluka

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President of the Shivsena and had a precarious relationship with

all local Memons. Five accused had also been wrongly identified.

16. It is further submitted that there was no need to conduct test

identification parade (TIP) considering the fact that conviction of all

accused is based on the sole testimony of the widow (who at best

had a  fleeting  glimpse of  the  accused  under  cover  of  darkness)

since life  of  the appellants  hang in a delicate  balance.  He thus

relied upon Dana Yadav alias Dahu & Ors. Vs. State of Bihar,

(2002) 7 SCC 295;  Kanan & Ors. Vs.  State of Kerala, (1979) 3

SCC 319 and Mulla & Anr. Vs. State of Uttar Pradesh, (2010) 3

SCC 508.

17. On the other hand, Mr. D. N. Ray, learned counsel appearing

on behalf of the respondent supported the order of conviction and

sentence passed by both the Courts below. He submitted that it is

true that accused No.5 and accused No.4 were acquitted by the

Trial  Court  and  High  Court,  respectively,  from  all  the  offences

charged against them for want of evidence.  It is equally true that

out  of  five  accused,  two  accused  were  acquitted  by  the  Courts

below by giving benefit of doubt and hence there were less than five

accused before the High Court. He has specifically submitted that

no point of perversity has been taken by the appellants or pleaded

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in  their  appeals  and  instead,  asked  for  re-appreciation  of  the

evidence.  According  to  him,  without  showing  any  perversity

committed by the Trial Court as well as by the High Court, there

can be no ground to interfere with the findings of the High Court.

He submitted that this appeal should be dismissed on this ground.

18. He further pointed out that the prosecution case is based on

an unshakeable eye-witnesses’ account. Therefore, motive becomes

immaterial and question of proving the motive by the prosecution

does  not  arise,  since  it  is  not  a  case  based  on  circumstantial

evidence.  (See  Arjun  Malik  & Ors. Vs.  State  of  Bihar,  1994

Supp.  (2)  SCC 372,  Para 10).   He also  drew our attention to  a

decision of this Court in Kuriya & Anr. Vs. State of Rajasthan,

(2012) 10 SCC 433, wherein it was held that “Once the principal

eye-witness(es) have proved their credentials on the whole, it can

be said to be believable that the prosecution can rest even on the

testimony of a single eyewitness.”   

19. Learned  counsel  appearing  on  behalf  of  the  respondent

further contended that many questions were tried to be raised in

respect of the deposition/testimony of PW1, but from the evidence

of PW1 - widow of the deceased, it would appear that there is no

improvement regarding visibility of the crime as sought to be made

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out by the defence.  So far the recovery of the knife is in question,

although  PW5  has  turned  hostile,  even  though  on

cross-examination, he has categorically stated that the recovery of

a large sharp knife was made at the instance of accused No.1.  He

further  pointed  out  that  the  deceased  was  running  a  Shivsena

magazine in the heart of a Memon Village.  Except a handful of

Hindus, the entire village comprised Muslims who were on inimical

terms.  It has come on record that the relationship of the deceased

with the local  Muslim villagers was so bad that in the past the

police had to be called and the deceased had to be given police

protection  and  the  police  had  to  resort  to  firing  to  save  the

deceased.   He  also  took  us  through  the  evidence  of  PW3  and

submitted that  PW3 had married a Muslim lady from the same

village, which aggravated the enmity between the deceased and the

accused persons.   

20. He further pointed out that although it is not seriously urged

that since five persons could not be identified and/or only three

has  been  convicted,  therefore,  Section  149  IPC  cannot  be

attributed to convict anybody other than the accused No.1.  Such

submission cannot  be  accepted  by  the  Court  since  PW1 clearly

deposed in her testimony that she had seen five persons fatally

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assaulting her husband.  She has categorically named five persons

assaulting her husband with big knives.  Therefore, the fact of the

five persons, who were present cannot be doubted.  Doubt is with

regard to the exact identification of one or two accused.   

21. We have meticulously perused the oral evidence of PW1 who

is the only eye witness in the present case and that of PW3 who

was the fort to know about the incident, as PW1 had called her. It

was  admitted  that  day  before  the  incident  of  murder  one

Nageshbhai had a private conversation with the deceased outside

their house and thereafter deceased was feeling very much grief

and  his  face  was  looking  pale  and  during  evening  hours  many

phone  calls  were  received  on  telephone.  No  independent  act  or

overt act was attributed to each accused, albeit it was stated that

she  had  seen  the  clothes  of  the  assaulter  stained  with  her

husband’s blood during occurrence.  

22. In our view, albeit the murder is proved but the ingredients of

the unlawful assembly remained elusive, as pre-requisite condition

for an unlawful assembly i.e., minimum five persons, has not been

met.  Nevertheless,  the  common  object  has  been  proved  by  the

prosecution.

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23. Moreover,  when  the  appeal  was  preferred  before  the  High

Court, acquittal of the accused No.5 was not rebutted and further

finding  of  the  High Court  whereby accused  No.4  has  also  been

acquitted  for  reasonable  doubts,  leaves  a  well-set  doubt  that

prosecution has not proved its case beyond reasonable doubt. We

are constrained to have this opinion that trial court was vitiated by

some  manifest  illegality  or  that  the  decision  is  perverse.

PW9/Circle Officer has also stated that PW2, brother of deceased,

influenced him into adding of cots, whereas they were not actually

there. No zero watt bulb is shown in the Panchnama (site plan) as

well,  which  efficaciously gives rise to doubt of the role attributed

to the appellants.

24. Finally, it has been argued by the learned senior counsel for

the  appellants  that  a  reference  was  also  made  to  a  previous

incident of 2001, where deceased had to be given police protection

during  some  altercation  with  people  of  the  other  community.

However, the accused in that case were admittedly different and

there  is  nothing  to  connect  the  appellants  in  the  present  case,

except the fact that they belong to the same community.

25. On the  other  hand,  it  has  been  submitted  by  the  learned

counsel for the State that the incident actually did happen due to

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the fact that the brother of the deceased had got married with a girl

of  the  community  of  the appellants.  Had this  marriage was not

solemnized or as per present situation not registered in Court, then

the deceased might not have been murdered.  

26. After considering the present facts and circumstances, we are

of  the  considered  opinion  that  for  furtherance  of  the  common

intention namely to do away the deceased, appellants had entered

into the house of the deceased and were seen by PW1. They then

started beating the deceased and after causing injuries on his neck

with a sharp knife, they ran away. The homicidal death was proved

beyond  all  reasonable  doubts.  The  High  court  has  thus  rightly

relied  on  the  judgment  of  this  Court  in  the  case  of  Pulukuru

Kottaya & Ors. Vs. Emperor,  reported in AIR (34) 1947 PC 67,

wherein it  was held that “The improper admission or rejection of

evidence shall not be ground of itself for a new trial or reversal of

any decision in any case, if it shall appear to the Court before which

such objection is raised that, independently of the evidence objected

to and admitted, there was sufficient evidence to justify the decision,

or that, if the rejected evidence had been received, it ought not to

have varied the decision”.

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27. Above  all,  the  fact  that  accused  had  been  identified  and

recovery made from accused No.1 has left no room for doubt that

all the appellants were involved in the commission of the murder

with common object to do away the deceased with sharp knife.

28. Thus, in the light of the above discussion, we are of the view

that the present appeal is devoid of merits and we, therefore, do

not find any reason to interfere with the order of the High Court.

Hence, the appeal is dismissed.  

. . . . . . . . . . . . . . . . . . . . .J (Pinaki Chandra Ghose)

. . . . . . . . . . . . . . .  . . . . . J (Ashok Bhushan)

New Delhi; March 23, 2017.