STATE OF RAJASTHAN TH.SECY. HOME DEPT. Vs ABDUL MANNAN
Bench: B.S. CHAUHAN,SWATANTER KUMAR, , ,
Case number: Crl.A. No.-000029-000029 / 2008
Diary number: 26826 / 2005
Advocates: MILIND KUMAR Vs
SHAKIL AHMED SYED
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 29 of 2008
STATE OF RAJASTHAN … Appellant TH. SECY. HOME DEPT.
Versus
ABDUL MANNAN … Respondent
WITH
CRIMINAL APPEAL NO. 30 OF 2008
STATE OF RAJASTHAN … Appellant
Versus ABDUL ZABBAR & ANR. … Respondents
1
J U D G M E N T
Swatanter Kumar J.
These appeals are directed against the judgment of the
High Court of Rajasthan, Bench at Jaipur dated 15th March,
2005 in a case of communal violence. The trial court vide its
judgment dated 7th September, 1999 returned a finding that
charge against three accused namely Abdul Mannan, Afzal
and Abdul Zabbar under Sections 302/149, 148, 324/149
and 449 of the Indian Penal Code (for short ‘IPC’) was fully
established beyond reasonable doubt and sentenced them as
follows:
2
a For committing an offence under Section 302/149 IPC,
all three accused were awarded rigorous
imprisonment for life along with fine of Rs.5,000/-
each and in default of payment of fine to suffer six
months’ simple imprisonment.
b Under Section 148 IPC, all the three accused were
awarded one year’s rigorous imprisonment.
c Under Section 324/149 IPC, all the accused were
awarded one year’s rigorous imprisonment each and
d Lastly, under Section 449 IPC, they were awarded three
years’ of rigorous imprisonment each along with fine of
3
Rs.1,000/- each, in default of payment of fine, to undergo
simple imprisonment for three months.
Aggrieved by the judgment of the trial court, all the three
accused preferred an appeal before the High Court, raising
various issues in relation to the appreciation of evidence, false
implications, contradiction in statements of witnesses and
that no evidence had been led against them. On these
premises, they prayed for setting aside of the judgment of the
trial court and claimed acquittal. The High Court vide its
judgment dated 15th March, 2005, acquitted all the accused
and passed the following order:
4
“9. That takes us to the evidence of the eye witnesses examined at the trial. Coming to the testimony of Mahesh (PW- 4) we notice that in his examination in chief he deposed that a mob of around 70 persons of muslim (sic) attacked the house of Govind Narayan, but he could identify only Mehboob, Hanif and Zabbar. He however, could not identify Afzal and Mannan. In his cross-examination Mahesh stated that he did not narrate
the incident to anybody for 5-7 days. He did not go to jail or other place for the purpose of identification of accused Kanhaiya Lal (PW5) deposed that mob of 60-70 persons belonging to Muslim community entered the house of Govind Narayan. He could identify Afzal, Kadir, Islam, Bada Bhaiya, two brother of Noor Tractorwala, Zabbar Tractorwala, Mannan, Hanif and Mehboob. In the cross examination he however stated that
5
he did not narrat the names of these persons to police. Satya Narayan (PW-7) in his deposition stated that a mob of 60 persons attacked the house. Afzal, Motal, Lakhara, Hanif, Mehboob, Zabbar Ahmad Tractorwala were the members of the mob. He could not say as to who inflicted the injury on his person. This witness was declared hostile by the prosecution. He could not identify Abdul Mannan in the court. Having closely scrutinized the
evidence of Mahes, Kanhaiya Lal and Satya Narayan we are of the opinion that element of consistency is missing from their testimony. A through and scrupulous examination of the facts and circumstances of the case leads to an irresistible and inexplicable conclusion that the prosecution has not established the charge leveled against all the three accused by producing cogent, reliable and trustworthy evidence. Testimony of
6
Mahesh (PW-4), Kanhaiya Lal (PW5) and Satya Narayan (PW7) is ambulatory and vacillating and it is not safe to reply upon. Variations, infirmities, additions, and embellishments in the evidence of these witnesses are of such nature that could undermine the substratum of the prosecution case. The prosecution could only able to establish that an unruly mob of Muslims attacked the house of deceased but could not prove beyond
reasonable doubt that the three appellants were the members of unruly mob and they inflicted injuries. On examination of testimony of these three witnesses Mahesh (PW4), Kanhaiya Lal (PW5) and Satya Narayan (PW-7) from the point of view of trustworthiness we find it untruthful. Learned trial judge in our opinion did not properly appreciate the prosecution the evidence and committed
7
illegality in convicting and sentencing the appellants.
10. For these reasons we allow the instant appeals and set aside the judgment dated September 7, 1999 of the learned Special Judge Shri G.C. Sharma, Communal Riots and Man Singh Murder Case, Jaipur in Sessions Case No.1/1997. We acquit the appellants Abdul Zabbar, Afzal and Abdul Mannan
of the charges under Sections 148, 302/149, 324/149 and 449 IPC. The appellants Abdul is on bail, he need not surrender and his bail bonds stand discharged. The appellants Abdul Zabbar and Afzal, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case.”
8
State of Rajasthan aggrieved by the said judgment of
acquittal, preferred the present appeal before this Court.
Let us briefly examine the case of the prosecution. As
per the submission of the State, this Court should set aside
the judgment of acquittal and punish the accused in
accordance with law.
Satyanarain Baheti made a report to the S.H.O., Police
Station, Malpura in front of the hospital at Malpura on 9th
December, 1992 to the effect that, at about 11.15 a.m. that
morning the complainant had been standing outside his house
9
in Bahetiyon-ke-Mohalle in Ward No.6 of Kasba Malpura.
Hearing the noise of the stampede and uproar, he entered his
house and closed the door. After a while a crowd came from
the side of Hathai and started pelting stones at his house.
Two or three persons came inside the house after breaking the
bolt of the door. Satyanarain ran to stop them but those
persons started beating him. Thereafter, 8-10 persons
including Afzal son of Mota, Mahboob son of Jumma, two
brothers of tractorwala, Syyed Jabbar Ahmad tractorwala,
Abdul Manjan son of Jabbar, Hanif son of Iqbal and Qadir
Islam came inside by climbing the back wall. These persons
were duly armed with knife, pharsi, sword and lathies. They
10
gave two or three blows with swords on the head of Govind
Narain father of Satyanarain. The remaining persons also
inflicted injuries on the head of Govind Narian. Hari Narain,
kakaji of Satyanarain, was also standing there and these
persons also inflicted injuries with sword and pharsi on his
head. Govind Narain fell down, even then these persons did
not stop inflicting injuries on his arms and shoulders with
lathies. Besides Kanhaiya Lal Baheti, Babulal Aggarwal and
Mahesh Mukar Kacholiya had also witnessed the occurrence.
These persons, who had witnessed the occurrence, along with
the complainant, brought Govind Narain and Hari Narain to
hospital at Malpura. At the hospital, doctor after examining
11
them declared both of them dead. Resultantly, FIR was
registered on 9th December, 1992 at about 12.45 p.m. The
case was investigated. On completion of the investigation, the
charge-sheet was filed before the court of competent
jurisdiction. The case was committed only with regard to two
accused namely Hanif and Mehboob. Vide its judgment dated
12th August, 1997, the trial court acquitted both the accused
persons. The case in relation to other accused was then
committed to the trial court. Two other accused, namely,
Firoze and Anwar were discharged by the court vide judgment
dated 21st March, 1998. Thus, the subject matter of the
judgment of the trial court dated 7th September, 1999 relates
12
only to the three accused namely Abdul Zabbar, Afzal and
Abdul Mannan.
The prosecution had examined seven witnesses including
three eye-witnesses (namely, PW7 and complainant
Satyanarain, PW4 Mahesh and PW5 Kanhiyalal) as well as
PW2 medical examiner Dr. Chandra Prakash, and the
investigating officer, PW3 Shri Rajendra Ojha. The
incriminating evidence against the accused was put to the
accused while recording their statement under Section 313 of
the Cr.P.C. The plea taken by the accused was that these
witnesses are deposing falsely, and have implicated them in
13
commission of the crime at the instance of the police. Abdul
Mannan took the plea of false implication, and claimed that he
was in a school at a distance of 18 km away from the Malpura.
Accused Afzal also took the plea of false implication, and
stated that there were two or three persons by the name of
Afzal Lakhara and he had not been present at the place of
occurrence. Similar stand was taken by Zabbar.
The learned trial court discussed the prosecution
evidence as well as the defence at great length. While holding
the statements of above eye-witnesses trustworthy and finding
14
the witnesses led by the defence as not credible, the court held
as under:
“In the opinion of the court, the evidence of witnesses Ramnarain and Nathu Lal does not inspire confidence. When this court could not ignore the evidence of witnesses – Mahesh, Kanhaiyalal and Satyanarain in any manner, which is the reliable evidence of
eye-witnesses to the occurrence, under such circumstances, the evidence of witnesses – Ramnarain, Nathu Lal, Satya Narain and Ratan Singh does not inspire confidence of the court that at the time of occurrence, at the three accused persons were not present at the place of occurrence, rather they were present at the place told by the defence witnesses. Such type of defence evidence, appears to
15
be absolutely fabricated, because such type of evidence can be prepared easily.”
The trial court had specifically recorded the finding that
the prosecution has been able to establish its case that the
role of the accused in inflicting injuries upon the body of the
deceased persons had fully been established and therefore,
they were liable to be punished in accordance with law.
However, the High Court while upsetting the said finding
noticed that PW4, PW5 and PW7 were untruthful witnesses
and that the trial court had not properly appreciated the
prosecution evidence, and therefore, committed an illegality in
convicting and sentencing the accused.
16
As is evident from the above recorded findings, the
judgment of conviction was converted to a judgment of
acquittal by the High Court. Thus, the first and foremost
question that we need to consider is, in what circumstances
this Court should interfere with the judgment of acquittal.
Against an order of acquittal, an appeal by the State is
maintainable to this Court only with the leave of the Court.
On the contrary, if the judgment of acquittal passed by the
trial court is set aside by the High Court, and the accused is
sentenced to death, or life imprisonment, or imprisonment of
more than 10 years, then the right of appeal of the accused is
17
treated as an absolute right subject to the provisions of
Articles 134 91) (a) and 134 (1) (b) of the Constitution of India
and Section 379 of the Code of Criminal Procedure, 1973. In
light of this, it is obvious that appeal against acquittal is
considered on slightly different parameters compared to an
ordinary appeal preferred to this Court. When an accused is
acquitted of a criminal charge, a right vests in him to be a free
citizen and this Court is very cautious in taking away that
right. The presumption of innocence of the accused is further
strengthened by the fact of acquittal of the accused under our
criminal jurisprudence. The courts have held that if two views
are possible on the evidence adduced in the case, then the one
18
favourable to the accused, may be adopted by the Court.
However, this principle must be applied keeping in view the
facts and circumstances of a case and the thumb rule is
whether the prosecution has proved its case beyond
reasonable doubt. If the prosecution has succeeded in
discharging its onus, and the error in appreciation of evidence
is apparent on the face of the record then the Court can
interfere in the judgment of acquittal to ensure that the ends
of justice are met. This is the linchpin around which the
administration of criminal justice revolves. It is a settled
principle of criminal jurisprudence that the burden of proof
lies on the prosecution and it has to prove a charge beyond
19
reasonable doubt. The presumption of innocence and the
right to fair trail are twin safeguards available to the accused
under our criminal justice system but once the prosecution
has proved its case and the evidence led by the prosecution, in
conjunction with the chain of events as are stated to have
occurred, if, points irresistibly to the conclusion that accused
is guilty then the Court can interfere even with the judgment
of acquittal. The judgment of acquittal might be based upon
misappreciation of evidence or apparent violation of settled
canons of criminal jurisprudence.
20
We may now refer to some judgments of this Court on
this issue. In State of Madhya Pradesh v. Bacchudas [(2007)
9 SCC 135], the Court was concerned with a case where the
accused had been found guilty of an offence punishable under
Section 304 (Part II) read with Section 34 IPC by the trial
court; but had been acquitted by the High Court of Madhya
Pradesh. The appeal was dismissed by this Court, stating that
the Supreme Court’s interference was called for only when
there were substantial and compelling reasons for doing so.
After referring to earlier judgments, this Court held as under:
“9.There is no embargo on the appellate court reviewing the evidence upon which
21
an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view
which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the
22
purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P.[(2003) 3 SCC 21] The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and
convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.
These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat, Jaswant Singh v. State of Haryana, Raj Kishore Jha v. State of Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh,
23
Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v. State of U.P.
10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference.
In a very recent judgment, a Bench of this Court in
Criminal Appeal No. 1098 of 2006 titled State of Kerala and
Anr. v. C.P. Rao decided on 16.05.2011, discussed the scope of
interference by this Court in an order of acquittal and while
reiterating the view of a three Judge Bench of this Court in the
24
case of Sanwat Singh & Ors. v. State of Rajasthan [AIR 1961
SC 715], the Court held as under:
“14. In coming to its conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the
accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in order of acquittal has been very succinctly laid down by a Three- Judge bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan [1961 (3) SCR 120]. At page 129, Justice Subba Rao (as His Lordship
25
then was) culled out the principles as follows:
The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case [1934 L.R. 61 I.A. 398] afford a correct guide for the appellate court's approach to a case in
disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every
26
matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”
Reference can also be usefully made to the judgment of
this Court in the case of Suman Sood v. State of Rajasthan,
[(2007) 5 SCC 634] where this Court reiterated with approval
the principles stated by the Court in earlier cases, particularly,
Chandrappa v. State of Karnataka, [(2007) 4 SCC 415].
Emphasizing that expressions like ‘substantial and compelling
reasons’, ‘good and sufficient grounds’, ‘very strong
circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc
27
are not intended to curtail the extensive powers of an appellate
court in an appeal against acquittal, the court stated that
such phraseologies are more in the nature of ‘flourishes of
language’ to emphasize the reluctance of an appellate court to
interfere with the acquittal. Thus, where it is possible to take
only one view i.e. the prosecution evidence points to the guilt
of the accused and the judgment is on the face of it perverse,
then the Court may interfere with an order of acquittal.
In light of the above stated principles, we revert to the
facts of the present case. As already noticed, three eye
witnesses PWs.4, 5 and 7 were found to be truthful and
28
reliable witnesses by the trial court whereas those very
witnesses were held to be untrustworthy witnesses by the
High Court. We shall shortly proceed to discuss the
statements of these three witnesses in some detail, as it is
necessary for us to practically re-appreciate the entire
evidence in view of the serious conflict, on findings of fact, in
the two judgments under consideration in the present appeal.
One must notice another very significant error in the judgment
of the High Court. Though the High Court has made a
reference to the injuries inflicted upon the body of the
deceased as detailed by Dr. Chandra Prakash (PW2) in his
report, there is no discussion of his statement, in regard to
29
nature of injuries inflicted and the weapon used for inflicting
such injuries. There is also no discussion in the judgment of
the High Court on the comparative evaluation of medical
evidence, ocular evidence and the documentary evidence
produced by the prosecution on record. These are certainly
material evidence which have either been completely ignored,
or not appropriately appreciated by the High Court. This
renders the judgment of the High Court perverse, and provides
strong reasons for this Court to interfere with the judgment of
acquittal. In our considered view, the order of acquittal can
hardly be sustained where it is based just on some
contradiction in the statements of the while completely
30
ignoring the entire case of the prosecution particularly when
the prosecution has been able to prove its case beyond
reasonable doubt. Dr. Chandra Prakash (PW2), who on 9th
December, 1992 was posted as SMO at medical centre,
Malpura had conducted the postmortem on the body of both
the deceased persons. The injuries on the body of the
deceased Hari Narain, aged 70 years, were recorded by this
witness in his report (Ex.P4) which reads as under:
“I. Lacerated wound in size 3 inch x 2/10 inch till penetrating up to the bones on the left side of the head which was up to parietal region. This injury was having depressed fracture. The blood was oozing out from the wound.
31
II. Lacerated wound in the size 3.5 inch x 2/10 inch penetrating up to the bones. In this injury also there was depressed fracture on the right parietal region of the (sic). The blood was oozing out from this injury also. And the brain matter was coming out.
III. Incised wound in the size of 3 inch x 2/10 into ½ inch on the upper arm behind the shoulder and the blood was
oozing out from it.
On the dead body aforesaid external injuries were found. In my opinion the death of Hari Narayan was cause (sic) due to Neutrogena (sic) shock that is injury of the brain caused by injury Nos.1 and 2.
All the aforesaid injuries were of before death. The injury Nos. 1 and 2 on the
32
head of Hari Narayan were in general nature sufficient to cause the death. The death of Hari Narayan was caused within 2 to 3 hours of (sic) the postmortem. I prepared the postmortem report which is exhibit P-4 which is in my hand writing and it is signed. It bears my signature from A to B and I have entered the cause of death at C to D.
On the same date in the day time at 1.30
P.M. I conducted the post mortem on the dead body of Govind Mahajan son of Lachh Raj age 72 years, resident of Malpura and found following injuries on the dead body which were caused before death:
1 A wound of cut in size 4 inch x 2/10 inch x penetrating up to bone and even up to the brain. And the brain Metter (sic) was coming out this
33
injury was on the center of the head from where the blood was oozing. Both the edges of the wound were sharp.
2 Lacerated wound in size of 3 inch x ¼ inch deep up to the bones on the center with depressed fracture. And obtuse injury all around right eyes (sic).
3 The blood was coming out from the right ear.
In my opinion the death of Govind was caused due to Neutrogena (sic) shock which was caused by injury no.1 and due to hemorrhage which was caused by injury no.2. All the 3 injuries were caused before the death and in general nature were sufficient to cause the death of Govind. The death of Govind was
34
caused within 2 to 3 hours from (sic) conducting the post mortem I have prepared the post mortem report which is exhibit and is verified. It bears my signature at A to B and I have entered the cause of death at C to D.”
Mahesh (PW 4) in his statement in Court had stated that
he saw a mob of persons belonging to the Muslim community
approaching when he was standing outside his house. Some
of them held swords in their hands, some of them lathies and
some held pharsi and once they reached the house of Govind
Narain, they forcibly opened the door. He went onto the roof
of Premchand Mehru’s house, from where he could see that
some persons were pushing the door of Gopal Narain’s house.
35
He identified the persons who jumped inside the house, as
Mahboob, Haneef and Abdul Zabbar. Even in the Court, he
rightly identified one person Abdul Zabbar. This witness
stated the he knew Zabbar even prior to the occurrence. He
had also taken Kanhaiya Lal, who was injured, to the hospital.
He had seen the accused persons at the place of incidence. He
was subjected to lengthy cross examination. In his cross
examination, he gave a few vague answers like he does not
remember whether he had discussed the identity of the
accused persons with Satyanarain, whether 4, 5 or 50 police
officers were present at the funeral etc.
36
Corroborating the statement of PW4, Kanhaiya Lal (PW5)
stated that after seeing the mob, he shut the door of his house
called the Malpura police station and climbed to the roof. He
could see persons climbing the roof of Govind Narain’s house
and he could recognize Afzal Kadir Islam, Bada Bahaiya, two
brothers of tractorwala namely Jabbar tractorwala and
Mannan, Hanif and Mahboob. According to him these persons
went inside the house of Govind Narain and created nuisance.
This witness, according to the trial court, rightly identified the
persons named by him. This witness also stated that he knew
these persons even before the incident. All the three accused
were identified by the witness in Court. Later on, when the
37
police came and the persons from the mob fled away, he went
to the house of Govind Narain, the door was broken and he
noticed that both Govind Narain and Hari Narain were lying in
a pool of blood and were unconscious. Satyanarain had
sustained injuries. Thereafter he took all of them to the
hospital where two deceased persons were declared ‘brought
dead’. In his cross examination also nothing material was
brought out by the defence. He did admit that he could not
identify all the persons, who had come there.
PW 6-Radhey Shyam is the Investigating Officer and was
the SHO of police Station, Malpura. According to him, he was
38
busy in maintaining law and order situation when he received
the information that assailants had entered the house of one
Govind Narain Waheti and had beaten those inside; and that
the latter had been taken to the hospital. Satyanarain (PW7),
who is the most material witness of the prosecution, had made
the report (Ex.P7) to PW6. He is the injured witness. He
stated that a mob of 50-60 persons had come towards that
area shouting, “Maro! Maro!”. He went inside his house and
closed the door but in a short while stones were thrown at the
house. Some members of the mob started pushing the door
and eventually broke the door and PW7 ran away for safety.
Afzal Mota Lakhara, Mahboob, Hanif tractorwala, Jabbar
39
Ahmad Tractorwala came inside and some other persons who
he could not identify started assaulting Govind Narain and
Hari Narain with lathi and pharsi which he witnessed from his
room. According to PW7, the injuries were caused on the
head. He came out of his room and tried to save them, and in
the process, he also suffered injuries. In the meantime, the
police siren blew and upon hearing the same, these persons
ran away. The witness correctly identified Zabbar and Afzal in
Court and stated that these persons had caused injuries to the
deceased. This witness referred to the place of occurrence,
preparation of site plan and medical report by the doctor, he
admitted his signature on all these documents including Exh.
40
P-8. It appears from the record that during recording of
statement of this witness, the public prosecutor sought
permission to declare the witness hostile. Without declaring
him hostile, the Court had permitted him to be cross-
examined by the public prosecutor. This related to the fact
that after hearing portion C to D, part of Exh. P-9, the witness
has stated that after identifying the accused, he had stated the
name of the accused as Abdul Mannan to the police. He then
stated that Abdul was also there, however he could not
identify him definitely. At that stage, this witness was
declared hostile. Cross examination of these witnesses by the
public prosecutor as well as by the defence counsel did not
41
have an adverse impact on the main case of the prosecution.
In his cross examination, he said that he had forgotten and
therefore he had stated that he did not go to the police station
for lodging the report. In fact he wrote the report in his own
hand (Exh.P7). According to him, the persons who had
assaulted him were the same persons who had assaulted his
father and uncle. He also tried to wriggle out of his earlier
statement that he could identify the accused. It needs to be
noticed that his statement, which was recorded in the Court
on 17th March, 1999, was completely in consonance with the
case of the prosecution but when he appeared in the Court for
further cross-examination on 18th March, 1999, he tried to
42
wriggle out of his main statement. Thus, it is not very difficult
to understand the variation in his statement resulting in the
further cross examination. This entire evidence has to be read
along with the statement of the Investigating Officer (PW6).
Establishment of a complete chain of events and clear
identification of the persons assailing the deceased lead to the
irresistible conclusion that the prosecution has been able to
bring home the guilt of the accused. Undoubtedly, emphasis
on the second half of the statement of PW7 cannot completely
demolish the case of the prosecution which otherwise stands
proved by the statements of PW4, PW5, PW6 and PW2.
43
The strain on the witness due to the incident cannot be
ruled out inasmuch as he had lost his father, uncle and was
himself injured. All the basic facts that supported the case of
the prosecution were stated by him on 17th March, 1999 when
the case was adjourned for further cross-examination on 18th
March, 1999 when he made a statement at variance with his
earlier statement in Court as well as his statement recorded
under Section 161 of the Cr.P.C. Another fact which the Court
cannot lose sight of is that Exh. P2 was not a document
written by the police but was written in his own hand and duly
signed by him which he admitted even in his statement in
Court.
44
Satyanarain (PW 7) has also made statements which fully
aid the case of the prosecution and his statement recorded on
the adjourned date before the trial court i.e. 18th March, 1999
which is at variance cannot be treated as gospel truth. In fact
the bare reading of the statement clearly shows this fact.
Even if we exclude the statement of PW7 from consideration,
then identity of the accused is still fully established by the
statements of PW3, PW4, PW5 and PW6. There is no reason,
whatsoever advanced, as to why PW4 and PW5 (neighbours of
the deceased) who are otherwise independent witnesses, and
the doctor would involve the accused falsely. There is no
animosity between the parties, and in fact according to these
45
witnesses, they knew the accused particularly Abdul Zabbar,
Afzal and Mannan for quite some time. There is no reason for
the Court to hold that PWs 4 and 5 are not trustworthy. Their
statements describe the occurrence in its proper course and
are compelling evidence of the same. We do not find it
appropriate to discard their statements as not inspiring
confidence. The statement of these witnesses must be
appreciated in the proper perspective. It was an incident
involving a mob but only few persons had entered the house of
the deceased, out of which 7 to 8 persons could be identified
including the three accused as having inflicted injuries on the
body of the deceased and were duly identified by the
46
prosecution witnesses. The injury on the head duly finds
corroboration from the statement of the Doctor i.e. Ex.P4. It
is not a case where the medical evidence does not support or
corroborate the ocular evidence. Some discrepancies or some
variations in minor details of the incident would not demolish
the case of the prosecution unless it affects the core of the
prosecution case. Unless the discrepancy in the statement of
witness or the entire statement of the witness is such that it
erodes the credibility of the witness himself, it may not be
appropriate for the Court to completely discard such evidence.
The core of the prosecution case is that when the mob came,
PWs 4 and 5 ran to their houses, locked their doors, went to
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the roof of the houses which were adjacent to the house of the
deceased and watched some members of the mob, of whom
they could identify a few, assault the deceased. This
statement clearly shows the trustworthiness of these
witnesses as they have stated that there were some other
persons whom they could not identify. However both these
witnesses and complainant Satyanarain clearly identified the
persons who had entered and assaulted the deceased persons.
Though Satyanarain (PW 7) fully supported the case of the
prosecution that he was also assaulted by these persons, he
did speak in a different voice the next day before the Court. In
our considered opinion the cumulative effect of the ocular
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evidence and documentary evidence is that the prosecution
has been able to establish its case beyond reasonable doubt.
We may also refer to a very recent judgment of this
Court, given by us in Crl. Appeal Nos. 1693-1994/2005, State
of U.P. v. Mohd. Ikram & Ors. decided on 13th June, 2011
where by upsetting the judgment of acquittal passed by the
High Court, this Court held as under:
“15…..Once the prosecution had brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot at that dead of night. The accused were
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apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution, and having failed to do so, the trial court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable.
The trial court did not find evidence
of Bhugan (DW.1), examined by Mohd. Iqram, one of the respondents , worth acceptance.
16. The High Court did not even make any reference to him. It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e. the conclusions of the courts below are
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contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the
courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
17. In the instant case, the circumstantial evidence is so strong that it points unmistakably to the guilt of the respondents and is incapable of explanation of any other hypothesis that
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of their guilt. Therefore, findings of fact recorded by the High Court are perverse, being based on irrelevant considerations and inadmissible material.”
Learned counsel for the accused had placed reliance
upon the judgment of this Court in Shivalingappa
Kallayanappa v. State of Karnataka [1994 Supp 3 SCC 235] to
contend that there was no common object to commit murder.
The appellants cannot derive much advantage from the
judgment of this Court in that case: First, the facts of that
case are entirely different from those of the case in hand. In
that case, it was established by the prosecution that A-1 to A-
5 formed an unlawful assembly wherein A1 and A2 were
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armed with axes and A3, A4 and A5 with sticks in order to
assault the two deceased persons amongst others. While A3
did not participate, A4 and A5 only dealt blows on legs and
arms with their sticks but A1 and A2 dealt blows to the head
with the butt end of their axes which proved to be fatal.
Convicting A1 and A2 under S. 302/149, IPC and A3-5 under
S. 326/149, the Court held that taking all the circumstances
of the case into consideration, the common object can be held
to be to cause grievous hurt only and not to commit murder.
However, in the present case, common object to commit
murder has been fully proved. Second, the case of the
prosecution is not that the entire mob had entered the house
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of the deceased. Out of the mob of 50-60 persons only 7 to 10
persons had broken the door of the house and some of them
had climbed the wall to enter the house of the deceased.
These persons had raised the slogan ‘maro! maro!’ and
thereafter had inflicted the injuries upon the body of the
deceased. The common intention could even develop at the
spur of the moment when the three accused, as duly
identified, were actively inflicting injuries on the body of the
deceased. They, therefore, not only caused injuries to the vital
body parts of the deceased, including head injury, but kept on
inflicting injuries even after the deceased had fallen to the
ground. The efforts of Satyanarain to save them were in vain
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and he himself suffered certain injuries. Thus, in the present
case, it has been established that more than five persons
constituted an unlawful assembly and in furtherance to their
common object and intent, assaulted and caused injuries to
vital parts of the bodies of the deceased, ultimately resulting in
their death. We, therefore, have no hesitation in holding that
there is no merit in this contention of the accused and the trial
Court applied the law correctly.
Section 149 consists of two parts; the first deals with the
commission of an offence by any member of an unlawful
assembly in prosecution of the common object of that
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assembly; the second part deals with commission of an offence
by any member of an unlawful assembly in a situation where
other members of that assembly know the likelihood of the
offence being committed in prosecution of that object. In
either case, every member of that assembly is guilty of the
same offence, which other members have committed in
prosecution of the common object.
The final point is the common object. The case of
Lokeman Shah v. State of W.B. [(2001)5 SCC 235] on this point
would further substantiate the case of the State and diminish
the worth of the defence. Accused have inflicted the injuries
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after raising slogan and have commonly participated in
committing offence which resulted in the death of the
deceased.
For the reasons afore-recorded, we find the present case
a fit case for interference in the judgment of acquittal recorded
by the High Court. Consequently, the appeals of the State are
allowed, the judgment of the High Court is set aside and that
of the trial court is restored. We concur with the finding of
guilt and the quantum of punishment awarded by the trial
court.
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The bail bonds of the accused, if any, who are on bail, are
cancelled. They are directed to surrender within four weeks
from today failing which the Chief Judicial Magistrate, District
Tonk, Rajasthan shall ensure to take them into custody and
they shall undergo the remaining part of their sentence in
terms of the judgment of conviction and punishment awarded
by the trial court.
A copy of the judgment be sent to the concerned CJM for
information and action.
....................................J. [Dr. B.S. Chauhan]
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....................................J. [Swatanter Kumar]
New Delhi; July 7, 2011
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