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  REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1451 OF 2009

Uma Shankar Gautam .. Appellant              versus State of Madhya Pradesh ..        Respondent

J U D G M E N T

C. NAGAPPAN, J.  

1. This appeal is preferred against the judgment and order  

dated  12.8.2008  passed  by  the  High  Court  of  Madhya  

Pradesh at Jabalpur in Criminal Appeal No.1537 of 1998.

2. The appellant herein is accused no.1 and he along with  

five other accused were tried in Sessions case no.193/1995  

on the file of Sessions Judge, District Shahdol and the trial  

court convicted them for the commission of offences under  

Section 147 and Section 302 read with Section 149 IPC and  

sentenced each of them to undergo rigorous imprisonment  

for one year for the first offence and each of them to undergo

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imprisonment for life for second offence.  Aggrieved by the  

same all  the accused preferred Criminal Appeal no.1537 of  

1998 to the High Court of judicature at Jabalpur.   During the  

pendency  of  appeal  appellant  no.2/accused  no.2  

Ramashankar  died  and the  appeal  preferred  by  him stood  

abated.   The  High  Court  confirmed  the  conviction  and  

sentence  of  accused  no.1  Umashankar,  accused  no.3  

Shivashankar  and  accused  no.4  Gaurishankar  and  at  the  

same time acquitted accused no.5 Vasudev and accused no.6  

Gyandev by allowing the Criminal Appeal in part.  Challenging  

his conviction and sentence, accused no.1 Umashankar has  

preferred the present appeal.

3. Briefly the case of the prosecution is narrated as follows  

:  PW7 Savitri Bai  is the mother of Kalua @ Ramnath and  

PW9 Usha Bai is his wife.  On 19.7.1995 at about        8-8.30  

a.m. the appellant herein/accused no.1 along with five other  

accused had gone to the house of Nan @ Lakhan situated at  

village Dindori Tola Bamhani and were hurling abuses in the  

courtyard.  Nan was not in the house at that time and upon  

hearing the noise Kalua @ Ramnath went  to  Nan’s  house.  

Accused no.3 Shivashankar armed with barchhi, accused no.4

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Gaurishankar armed with farsa and accused nos.1,2,5 and 6  

armed with lathis attacked Kalua with the said weapons and  

inflicted injuries on him.  PW7 Savitri Bai tried to save his son  

Kalua and she was also beaten up.  PW9 Usha Bai and PW2  

Shiv Kumari, mother of Nan, also witnessed the occurrence.  

After sometime accused no.1Umashankar and accused no.4  

Gaurishankar  again  came  to  the  occurrence  place  on  

motorcycle and accused no.1 Umashankar kicked Kalua and  

they  went  away.   PW9  Usha  Bai  went  to  PW12  Sarpanch  

Bhaiya Lal and narrated the occurrence.  He along with PW4  

chowkidar Bisahu Yadav came to the occurrence place and  

Exh.P-6 intimation report was sent through PW4 Bisahu Yadav  

to Police Station Anuppur.   On receipt of information PW14  

sub-Inspector  Raghvendra  Baghel  went  to  the  occurrence  

place and received Exh.D1 complaint given by PW9 Usha Bai  

and took up the investigation.  He conducted inquest on the  

body of Kalua and sent it for post mortem examination.  He  

prepared Exh.P-7 map and seized blood stained earth  and  

plain  earth  from the  occurrence  place  and  examined  PW2  

Shiv Kumari,  PW7 Savitri Bai, PW9 Usha Bai, PW12 Bhaiya Lal  

and some other witnesses and recorded their statements.   

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4. PW13 Dr. P.C. Joshi conducted autopsy on the body of  

Kalua  at  11.45  a.m.  on  19.7.1995  and  found  following  

injuries  :

i) There was a compound fracture at the 1/3rd part of  left forearm, which was attached to the skin only.

ii) There was compound fracture on the joint of right  wrist which was attached with skin only.

iii) Stab injuries on right forearm 4cm x 3cm which were  bone deep.

iv) On the right partial part of the head incised wound  4cm x 2cm on the outer side of ear.

v) One stab wound on the right side of chest.

vi) 6 wounds on the left thigh wherein one wound was  4cm x 3 cm, second 6cm x 4cm, 3rd 7cm x 3cm, 4th  5cm x 3cm, 6th 6cm x 2cm and last 4cm x 3cm and  all these wounds were muscle deep.

vii) 3 stab wounds on the front side of right leg which  were muscle deep.

viii) Stab wound on the right  shoulder  4.5cm x 3cm x  muscle deep.

ix) One stab wound on left infrascapular region 6.5cm x  4cm x muscle deep.  

x) One  stab  wound  on  lumber  region  3cm  x  2cm  x  muscle deep.

He expressed opinion that homicidal death has occurred due  

to hemorrhage from external and internal injuries and issued  

Exh.P-31 post-mortem report.

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5. PW14 sub-Inspector seized the blood stained clothes of  

the deceased and sent them for chemical examination.  On  

22.7.1995 PW14 sub-Inspector arrested all the accused and  

inquired them and on the information furnished by accused  

no.3 Shivashankar, barchhi came to be recovered and on the  

information  furnished  by  accused  no.4  Gaurishankar,  farsa  

came  to  be  recovered  and  on  the  information  furnished  

independently by the other accused, lathis were recovered by  

him.  He sent the recovered weapons to chemical analysis  

and after obtaining the Forensic Laboratory report he filed the  

charge sheet against the accused.

6. The prosecution examined PWs 1 to 14 and marked the  

documents.  The accused were questioned under Section 313  

Cr.P.C. and their answers were recorded.  DWs 1 to 5 were  

examined on the side of defence.  The trial court found all the  

accused guilty of the charges and sentenced them as stated  

above.  On appeal by the accused, the High Court confirmed  

the conviction and sentence of accused nos.1,3 and 4 and  

acquitted accused nos.5 and 6.  Challenging his conviction  

and sentence accused no.1  Umashankar  has preferred the  

present appeal.  

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7.   Mr. Mahabir Singh, learned senior counsel appearing  

for the appellant, contended that the eye witnesses have not  

stated that the appellant/accused no.1 caused injury on the  

hands of deceased Kalua with lathi and the High Court had  

given the benefit of doubt to accused nos.5 and 6 as no injury  

of lathi has been found on the person of deceased and on the  

ground of parity the appellant also deserves to be acquitted.  

We also heard the similar submission made by Amicus Curiae  

Ms. Aakriti Dawar on behalf of appellant.  Mr. Samir Ali Khan,  

learned  counsel  appearing  for  the  respondent  State,  

contended that the presence of the appellant and his overt  

act  against  the  deceased  stood  established  by  ocular  

testimony and also intimation report in Exh.P-6 and the High  

Court in the impugned judgment has elaborately considered  

the same and has confirmed his conviction and the same is  

sustainable.

8. We  carefully  considered  the  rival  submissions  and  

perused the record.

9. Kalua @ Ramnath suffered 10 injuries in the occurrence  

as  evident  from Exh.P-31  post  mortem report  and  injuries

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no.1 and 2 mentioned therein are compound fracture on the  

left forearm and on the right wrist respectively and the other  

8 injuries are stab and incised wounds.  PW13 Dr. P.C. Joshi,  

who conducted autopsy, had opined that homicidal death has  

occurred  due  to  hemorrhage  from  external  and  internal  

injuries  in  the post-mortem report.   Exh.P-33 Query Memo  

was sent to him on 21.9.1995 with respect to the compound  

fracture injuries on the hands and report he has opined that  

the compound fracture could have been caused by hard and  

blunt object besides a sharp edged weapon.  In his testimony  

before court as PW13 he has reiterated the said opinion.    

10. The  eye  witnesses  to  the  occurrence  are  PW2  Shiv  

Kumari,  mother  of  Nan,  PW7  Savitri  Bai,  mother  of  the  

deceased and PW9 Usha Bai, wife of the deceased.  All of  

them have testified that accused no.3 armed with barchhi,  

accused no.4 armed with farsa and accused nos.1,2,5 and 6  

armed with lathis attacked Kalua with the said weapons and  

inflicted  injuries  on  him.   Weapons  barchhi  and  farsa  are  

sharp edged whereas lathi is hard and blunt.  PW7 Savitri Bai  

has testified in her testimony in para 15 has stated that lathi  

injuries were caused on the leg and waist.  PW9 Usha Bai has  

testified  that  appellant/accused  no.1  Umashankar  inflicted

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injury with lathi.  In the cross examination she has stated in  

para 16 that the lathi injuries were inflicted on the legs and  

waist of the deceased.  Referring to the above testimony the  

High Court has observed that the said witness has not stated  

that lathi injuries were caused on the hands of the deceased.  

As  per  the  post  mortem  report  both  the  hands  of  the  

deceased  were  attached  with  the  skin  only,  rest  of  the  

portion found cut and obviously the said injuries were caused  

by  the  sharp  edged  weapons.   The  fact  remains  that  

compound fractures were found on the left forearm and right  

wrist  which  as  per  medical  opinion  attributable  to  attack  

made by hard and blunt object.

11. The High Court has given benefit of doubt by acquitting  

accused nos.5 and 6 on the ground that no injury of lathi was  

found  on  the  person  of  the  deceased  and  the  names  of  

accused nos.5  and  6  were  not  mentioned  in  Exh.P-6  first  

intimation  report  and  they  could  have  been  falsely  

implicated later  on account of  enmity.  On the contrary as  

already seen, there were compound fractures indicative of  

attack  with  lathis.   Be  it  may.   The  High  Court  had  

elaborately  considered  the  role  and  overt  act  of  

appellant/accused  no.1  Umashankar  and  held  that  his

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presence stood established not only by the ocular testimony  

but also in the first intimation in Exh.P-6 report his name is  

specifically  mentioned and concluded that  he was sharing  

common  intention  with  accused  nos.3  and  4,  who  were  

armed  with  barchhi  and  farsa  respectively  and  confirmed  

their conviction and sentence.

12. We do not find any substance in the submission of the  

learned senior counsel appearing for the appellant that since  

accused nos.5  and  6  have been  acquitted;  on  the  ground  

parity the appellant herein also deserves to be acquitted.  It  

is always open to the Court to differentiate the accused who  

had  been  acquitted  from  those  who  had  been  convicted.  

The power of the courts to distinguish the cases of one or  

more  of  the  accused  from  the  other(s)  is  far  too  well  

recognized  to  need  reiteration.   Still,  we  may  notice  the  

principle as stated in  Gangadhar Behera  Vs.   State of  

Orissa (2002) 8 SCC 381,  wherein this  Court  observed as  

follows :

“……..Even if a major portion of the evidence is found  to be deficient, in case residue is sufficient to prove  guilt  of  an  accused,  notwithstanding  acquittal  of  a  number of other co-accused persons, his conviction  can be maintained.   It  is  the  duty  of  the  court  to  separate the grain from the chaff.  Where chaff can

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be separated from the grain, it would be open to the  court to convict an accused notwithstanding the fact  that  evidence  has  been  found  to  be  deficient  to  prove guilt of other accused persons.”

13.   In our view, the High Court applied the said principle in  

distinguishing  the  role  of  appellant  herein  from  that  of  

accused no.5 and accused no.6, who have been acquitted.  In  

other  words,  the  High  Court  rightly  declined to  acquit  the  

appellant  herein  on the principle  of  parity.   The impugned  

judgment does not call for any interference under Article 136  

of the Constitution of India.

14. In  the result  the appeal  is  dismissed.   The bail  bond  

shall be cancelled and the appellant is directed to surrender  

before the Sessions Judge, District Shahdol to serve out the  

remaining sentence, failing which the learned Sessions Judge  

is requested to take him into custody and send him to jail to  

serve his left over sentence.            

                                                   ………………………….J. (V. Gopala Gowda)

      ……………………………J. (C. Nagappan)

New Delhi; December  9, 2014.  

ITEM NO.1B-For Judgment     COURT NO.10               SECTION IIA

              S U P R E M E  C O U R T  O F  I N D I A

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                      RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  1451/2009

UMA SHANKAR GAUTAM                                 Appellant(s)

                               VERSUS

STATE OF M.P.                                      Respondent(s)

Date : 09/12/2014 This appeal was called on for JUDGMENT today.

For Appellant(s)                      Mr. Kuldip Singh,Adv.                      Mr. Gaurav Yadava, Adv.

For Respondent(s)                      Mr. Mishra Saurabh,Adv.     

Hon'ble Mr. Justice C. Nagappan pronounced the judgment  

of the Bench comprising Hon'ble Mr. Justice V.Gopala Gowda  

and His Lordship.

The appeal is dismissed in terms of the signed order.

   (VINOD KUMAR)    (MALA KUMARI SHARMA) COURT MASTER COURT MASTER

(Signed Reportable judgment is placed on the file)