JODHAN Vs STATE OF M.P.
Bench: DIPAK MISRA,N.V. RAMANA
Case number: Crl.A. No.-001683-001683 / 2010
Diary number: 10763 / 2009
Advocates: DEEPAK GOEL Vs
C. D. SINGH
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1683 OF 2010
Jodhan ... Appellant
Versus
State of M.P. ... Respondent
J U D G M E N T
Dipak Misra, J.
The present appeal calls in question the defensibility
and the legal sustainability of the Judgment of conviction
and order of sentence passed by the Division Bench of the
High Court of Madhya Pradesh, Bench at Gwalior in
Criminal Appeal No. 214 of 1995 whereby the High Court
has dislodged the Judgment of acquittal recorded by the
learned Additional Sessions Judge in respect of all the
accused persons including the present appellant for the
offences punishable under Sections 302, 323, 324 read
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with Sections 149 of the Indian Penal Code (IPC) and 148
IPC and proceeded to sentence each of the accused under
Section 302 read with Section 149 of IPC and imposed
rigorous imprisonment for life along with separate
sentences for other offences with the stipulation that all
the sentences would be concurrent. Be it noted, the
appellant and one Mangal Singh were also tried under
Sections 3 and 4 of the Explosive Substances Act, 1908.
2. The facts which are essential to be exposited for the
disposal of this appeal are that on 7.1.1984 about 9.00
a.m. when Ratta, PW-7, was at his home, the accused
persons, namely, Mangal Singh, Babbu, Jodhan,
Kanchhedi, Bhinua, Ramswaroop and Natthu and others
came there armed with lathis, farsa and handmade bombs
and started abusing Ratta and his family members and
exhorted that they would not leave the Kumharwalas
alive. As alleged, Kanchhedi assaulted Rukmanibai on
her left hand with farsa, Jodhan, the present appellant,
caused injury in the right leg of Heeralal, PW-16, by
throwing a handmade bomb at him and accused Mangal
Singh threw a handmade bomb on the chest of Siriya alias
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Shriram as a result of which he received serious injuries.
Other accused persons used lathi in the incident. As the
prosecution story proceeds, Ratta lodged an FIR, Ex. P/24,
on 7.1.1984 about 12.15 p.m. and by that time Siriya @
Shriram had already succumbed to the injuries. The
injured persons were medically examined and on
requisition by the investigating agency postmortem was
carried out. The investigating agency in the course of
investigation prepared the spot map, collected the
bloodstained soil from the place of incident, and further,
as is demonstrable, on being led by the accused persons
seized the weapons, namely, lathi, farsa and handmade
bombs and, thereafter, sent the seized articles to the
chemical examiner for analysis. The investigating officer
recorded the statements of the witnesses and eventually
placed the chargesheet in the court of Chief Judicial
Magistrate, Vidisha, who, in turn, committed the matter to
the Court of Session, Vidisha.
3. The learned trial Judge framed charges under
Sections 302, 323, 324 read with Sections 149 and 148 of
IPC against all the accused persons and an additional
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charge under Section 324 IPC against the accused
Kanchhedi and under Sections 3 and 4 of Explosive
Substances Act against Jodhan and Mangal Singh.
4. The accused persons pleaded not guilty and took the
plea of false implication. It was the further case of the
accused persons that the informant and others had
confined Babbu Khangar in a room and assaulted him and
because of the injuries inflicted on Babbu he expired later
on.
5. In order to establish the charges levelled against the
accused persons the prosecution examined as many as 16
witnesses and marked number of documents as Exhibits.
During trial Mishri, PW-1, Harnam Singh, PW-3, Tulsa Bai,
PW-4 and Hazrat Singh, PW-5, did not support the
prosecution story and accordingly were declared hostile
by the prosecution. The learned trial Judge while
appreciating the evidence on record noted certain
discrepancies, expressed doubt about the testimony of the
witnesses who had deposed in favour of the prosecution,
referred to the cases pending in the Court, the free fight
between the parties, absence of satisfactory explanation
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by the prosecution as regards the injuries sustained by the
accused persons, the absence of independent evidence on
record and accordingly disbelieved the story of the
prosecution and acquitted all the accused persons.
6. At this juncture, it is worthy to note that one Babulal
who was arraigned as an accused in the FIR died before
the chargesheet could be filed and, therefore, six accused
persons faced the trial.
7. Being dissatisfied with the judgment of acquittal, the
State preferred the criminal appeal against the six
accused persons. During the pendency of the appeal
Mangal Singh expired and the appeal stood abated against
him. The High court reappreciated the evidence on record
and opined that the view expressed by the learned trial
Judge was totally incorrect and could not be regarded as a
plausible one and, accordingly, reversed the same and
recorded the conviction and imposed the sentence as has
been stated hereinbefore. Hence, the present appeal.
Except the present appellant, the other accused persons
have not preferred any appeal.
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8. We have heard Mr. Varinder Kumar Sharma, learned
counsel for the appellant and Mr. C.D. Singh, learned
counsel for the respondent.
9. It is submitted by Mr. Sharma, learned counsel for
the appellant that the High Court while unsettling an order
of acquittal should exercise the appellate power with great
care and caution and it must be for substantial compelling
reasons and the appellate court should not reverse a
judgment of acquittal unless it finds that the same is
totally perverse and wholly unsustainable. It is put forth
by him that in the instant case the learned trial Judge had
analysed the evidence brought on record in an appropriate
manner, noted the discrepancies and contradictions and
hence, the view expressed by him, being a plausible one,
there was no warrant or justification on the part of the
High Court to interfere with the same. Learned counsel
would submit that the witnesses who have been placed
reliance upon by the High Court are interested witnesses
being family members of the informant and when all other
independent witnesses have not deposed in favour of the
prosecution the view expressed by the trial court deserved
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acceptation. It is contended by Mr. Sharma, that the
prosecution has failed to explain why other eye witnesses
who were present at the spot were not examined and such
non-furnishing of explanation having not been properly
appreciated by the High Court, the judgment of reversal is
unsustainable. It is also contended by Mr. Sharma that
when the appellant had not caused any injury on the
deceased, he should not have been convicted under
Section 302 IPC, for he would be liable for his overt act
only and not for others.
10. Mr. C.D. Singh, learned counsel for the State would
submit that the findings recorded by the learned trial
Judge are not founded on proper appreciation of the
evidence on record and, in fact, they are perverse and
totally untenable and, therefore, the High Court is justified
in interfering with the judgment. It is urged by him that
the view of acquittal as expressed by the learned trial
Judge cannot be regarded as a plausible one. The
discrepancies and the contradictions that have been
perceived by the learned trial judge, submits Mr. Singh,
are absolutely minor and they really do not even create a
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mild dent on the prosecution version. It is his further
submission that the principal witnesses who have been
nomenclatured as interested witness are the close family
members who had witnessed the occurrence and further
they had sustained injuries in the incident, and hence,
there is no reason for disbelieving their testimony.
Learned counsel has contended that when the prosecution
has been able to establish the case beyond reasonable
doubt on the basis of the evidence brought on record its
version could not have been thrown overboard on the
ground that other independent witnesses had not been
examined, for it is open to the prosecution even not to
examine a material witness under certain circumstances
and in the instant case nothing has been pointed out by
the accused persons to show that the witness was one
such material witness without whose evidence the
prosecution version was bound to collapse or flounder.
Lastly, it is canvassed by Mr. Singh that when the accused
persons formed an unlawful assembly, Section 149 gets
squarely attracted and in that circumstance the appellant
cannot be permitted to advance an argument that he is
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not liable to be convicted under Section 302 IPC as he had
not assaulted the deceased.
11. To appreciate the submissions raised at the bar, we
think it relevant to deal with the power of the appellate
court while exercising the appellate jurisdiction against
the judgment of acquittal. This Court in Gamini Bala
Koteswara Rao v. State of A.P.1 has held that it is well
settled in law that it is open to the High Court to
reappraise the evidence and conclusions drawn by the
trial court but only in a case when the judgment of the
trial court is stated to be perverse. The word ‘perverse’ in
terms as understood in law has been defined to mean
‘against the weight of evidence’. In Kallu v. State of
M.P.2, it has been held that if the view taken by the trial
court is a plausible view, the High Court will not be
justified in reversing it merely because a different view is
possible. Elaborating further it has been ruled that while
deciding an appeal against acquittal, the power of the
appellate court is no less than the power exercised while
hearing appeals against conviction. In both types of
1 (2009) 10 SCC 636 2 (2006) 10 SCC 313
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appeals, the power exists to review the entire evidence.
However, one significant difference is that an order of
acquittal will not be interfered with, by an appellate court,
where the judgment of the trial court is based on evidence
and the view taken is reasonable and plausible. It will not
reverse the decision of the trial court merely because a
different view is possible. The appellate court will also
bear in mind that there is a presumption of innocence in
favour of the accused and the accused is entitled to get
the benefit of any doubt.
12. In Ramesh Babulal Doshi v. State of Gujarat3,
this Court has taken the view that while considering the
appeal against acquittal, the appellate court is first
required to seek an answer to the question whether the
findings of the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable and if the court
answers the above question in the negative, the acquittal
cannot be disturbed. In Ganpat v. State of Haryana4,
after referring to earlier authorities certain principles have
been culled out. They read as follows:-
3 (1996) 9 SCC 225 4 (2010) 12 SCC 59
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“15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:
(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court’s conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are ‘compelling and substantial reasons’ for doing so. If the order is ‘clearly unreasonable’, it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed.”
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13. In State of Punjab v. Karnail Singh5, the Court
opined that 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 even where the accused has been acquitted, for
the purpose of ascertaining as to whether any of the
accused committed any offence or not. The aforestated
principles have been reiterated in Jugendra Singh v.
State of Uttar Pradesh6 and Basappa v. State of
Karnataka7.
14. Keeping in view the aforesaid enunciation of the legal
principles we have to scrutinize whether the appreciation
of the evidence by the learned trial Judge was so
unacceptable having not been properly marshalled and
hence, it was the obligation of the High Court to
reappreciate the evidence and record a conviction. Before
we proceed to delve into the grounds of interference by 5 (2003) 11 SCC 271 6 (2012) 6 SCC 297 7 (2014) 5 SCC 154
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the High Court in a judgment of acquittal within the
parameters indicated hereinabove, we think it appropriate
to refer to the post mortem report of the deceased Siria @
Shriram. Dr. Arun Kumar Srivastava, PW-13, has
conducted the autopsy on the dead body and in his report,
Ex. P-32, he has recorded the following findings:-
“Full thickness continuous patch of burnt area with blackening and most of the skin area over front of chest is in form of roasted patches of skin. Burn area over chest is bordered with red area of skin of 1 cm thickness. This burnt area extends from mentum, sub mental region and extending laterally to both sub mandibular region, going downwards the burnt area enlarges over front and sides of neck over suprasternal notch. Then burnt area laterally beyond lateral border of sternum measuring 29 cm. Maximum vertical length and broadest area is 14 cm. there are 3 lacerated wounds situated in this burnt area.
1. Lacerated wound – obliquely placed over left 4th intercostals space close to lateral border of sternum 3 cm x 1 cm x 1 cm depth.
2. Lacerated wound over sternum close to lateral border of sternum 1 cm x ½ cm x skin deep.
3. Lacerated wound medical to lacerated wound no. 2, ½ cm x ¼ cm over sternum. Skin deep.
No foreign body found in these wounds.
Roaster patch of burn mark over left hand with blackening 3 cm x 1.5 cm. Dorsally and distally
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placed over metacarpal bone in relation to left index finger.”
15. According to the evidence of the autopsy surgeon,
the deceased died due to extensive haemorrhage, shock
and lung compression and the injuries were caused by
explosive substance. On a perusal of the testimony of PW-
13 and the injuries sustained by the deceased, there can
be no trace of doubt that the death was homicidal in
nature and was caused by explosive substance. It is
manifest from the record that other witnesses had also
suffered injuries in the occurrence. As is noticed, Ratta,
PW-7, Rukmanibai, PW-14, Rambai, PW-15 and Heeralal,
PW-16, who are related to the deceased are the eye
witnesses and they have supported the prosecution
version. All the witnesses have suffered injuries.
Heeralal, PW-16 as per the treating physician, had
suffered blast injury over dorsal aspect of right leg with
blackening. He was advised for X-ray of right leg.
Rukmanibai, PW-14, had sustained an incised wound over
the left hand Anteriorly (Posterior). From the base of 5th
metacarpal to head of 2nd metacarpal 30½ x ¼ x skin
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deep muscles partially cut, abrasion over the back of left
wrist ¼” x ¼”, and abrasion over the left leg lower
anterior 1/3” x ¼”. As per the injury report, injury no. 1
was caused by sharp object and the other injuries were
caused by hard and blunt object. Ratta, PW-7 had
sustained abrasion over the left leg at tibial luburosity 1
½” x 1”. All the injuries had been caused by hard and
blunt object. The other witnesses similarly had sustained
injuries. The injuries on the body of the eye witnesses
have been proven by PW-12 and supported by MLC
reports.
16. Having noted the injuries suffered by the deceased
and the witnesses, it is to be examined what has been
deposed by the prosecution witnesses that have been
given credence to by the High Court disagreeing with the
view expressed by the learned trial Judge. As has been
stated earlier, eye witnesses are Ratta, PW-7, Rukmanibai,
PW-14, Rambai, PW-15 and Heeralal, PW-16. As per the
evidence of Ratta, PW-7, the accused persons, namely,
Jodhan, Ramswaroop, Bherosingh @ Bhinua, Babbu @
Babulal, Natthu, Mangal Singh and Kanchhedi came near
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his house and abused in filthy language. The deceased,
Siria, came and objected about the abuses being hurled by
Mangal Singh who immediately threw a hand made bomb
over the chest of Siria who sustained injuries. Jodhan
threw a handmade bomb on Heeralal, PW-16, and the
other accused persons assaulted the injured persons. As
per the prosecution version, the villagers came on the
spot and caught hold of Mangal Singh and Babulal and
confined them in Siria’s house. Ratta lodged an FIR,
Exhibit P-24, and brought injured Siria, Heeralal and
Rukmanibai and others to the hospital. Siria @ Shriram
was declared brought dead by the Doctor and as has been
stated earlier, other injured persons availed treatment.
17. As per the evidence brought on record, the incident
had taken place near the house of the deceased and the
witnesses. The criticism that has been advanced against
these witnesses is to the effect they are interested
witnesses and hence, their version does not deserve
acceptance is sans merit, for they are the witnesses who
were there at the spot and sustained injuries. They are
close relatives and they have stood firm despite incisive
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cross-examination. There can be no cavil over the
proposition that when the witnesses are related and
interested, their testimony should be closely scrutinized,
but as we find, nothing has been elicited in the cross-
examination to discredit their version. On a studied
scrutiny of their evidence, it can be said with certitude
that they have lent support to each other’s version in all
material particulars. There are some minor contradictions
and omissions which have been emphasised by the
learned trial Judge. The High Court has treated the said
discrepancies and the minor contradictions as natural.
That apart, their evidence also find support from the
medical evidence and the initial allegations made in the
FIR. The High Court has opined that there is no
inconsistency in their version and on a perusal of the said
evidence, we find there is absolutely no inconsistency
which will compel a court of law to discard their version.
The learned trial Judge, as is evincible, has attached
immense emphasis to such omissions and contradictions
which, according to the High Court, with which we concur,
are absolutely insignificant and trivial. It is also perceived
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that the learned trial Judge has given notable stress on the
fact that the accused persons and the informant were in
inimical terms due to non-voting by the informant’s party
in their favour. In our considered opinion, in the present
case, the same cannot be a ground for not placing reliance
on the eye witnesses who have supported the prosecution
version.
18. It is emphatically submitted by Mr. Sharma, learned
counsel for the appellant that when the witnesses are
interested witnesses and other independent witnesses had
turned hostile, the High Court should not have relied on
such witnesses and overturned the judgment of acquittal
by the learned trial Judge. First, we shall deal with the
credibility of related witnesses. In Dalip Singh v. State
of Punjab8, it has been observed thus:-
“We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many
8 AIR 1953 SC 364
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criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan9.”
In the said case, it has also been further observed:-
“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.”
19. In Hari Obula Reddy v. State of A.P.10, the Court
has ruled that evidence of interested witnesses per se
cannot be said to be unreliable evidence. Partisanship by
itself is not a valid ground for discrediting or discarding
sole testimony. We may fruitfully reproduced a passage
from the said authority:-
“An invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested
9 AIR 1952 SC54 10 (1981) 3 SCC 675
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witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
20. The principles that have been stated in number of
decisions are to the effect that evidence of an interested
witness can be relied upon if it is found to be trustworthy
and credible. Needless to say, a testimony, if after careful
scrutiny is found as unreliable and improbable or
suspicious it ought to be rejected. That apart, when a
witness has a motive or makes false implication, the Court
before relying upon his testimony should seek
corroboration in regard to material particulars. In the
instant case, the witnesses who have deposed against the
accused persons are close relatives and had suffered
injuries in the occurrence. Their presence at the scene of
occurrence cannot be doubted, their version is consistent
and nothing has been elicited in the cross-examination to
shake their testimony. There are some minor or trivial
discrepancies, but they really do not create a dent in their
evidence warranting to treat the same as improbable or
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untrustworthy. In this context, it is requisite to quote the
observations made by the Court in State of Punjab v.
Jagir Singh11:-
“A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”
21. Tested on the backdrop of aforesaid enunciation of
law, we are unable to accept the submission of the
learned counsel for the appellant that the High Court has
fallen into error by placing reliance on the evidence of the
said prosecution witnesses. The submission that when
other witnesses have turned hostile, the version of these
witnesses also should have been discredited does not
11 (1974) 3 SCC 277
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commend acceptance, for there is no rule of evidence that
the testimony of the interested witnesses is to be rejected
solely because other independent witnesses who have
been cited by the prosecution have turned hostile.
Additionally, we may note with profit that these witnesses
had sustained injuries and their evidence as we find is
cogent and reliable. A testimony of an injured witness
stands on a higher pedestal than other witnesses. In
Abdul Sayeed v. State of M.P.12, it has been observed
that the question of weight to be attached to the evidence
of a witness that was himself injured in the course of the
occurrence has been extensively discussed by this Court.
Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone. It has
been also reiterated that convincing evidence is required
to discredit an injured witness. Be it stated, the opinion
12 (2010) 10 SCC 259
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was expressed by placing reliance upon Ramlagan
Singh v. State of Bihar13, Malkhan Singh v. State of
U.P.14, Vishnu v. State of Rajasthan15 and Balraje v.
State of Maharashtra16 and Jarnail Singh v. State of
Punjab17.
22. From the aforesaid summarization of the legal
principles, it is beyond doubt that the testimony of the
injured witness has its own significance and it has to be
placed reliance upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and inconsistencies. As has been stated,
the injured witness has been conferred special status in
law and the injury sustained by him is an inbuilt-
guarantee of his presence at the place of occurrence.
Thus perceived, we really do not find any substance in the
submission of the learned counsel for the appellant that
the evidence of the injured witnesses have been
appositely discarded being treated as untrustworthy by
the learned trial Judge.
13 (1973) 3 SCC 881 14 (1975) 3 SCC 311 15 (2009) 10 SCC 477 16 (2010) 6 SCC 673 17 (2009) 9 SCC 719
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23. One of the contentions that has been highlighted by
Mr. Sharma is that there was no justification on the part of
the High Court to convict the present appellant in aid of
Section 149 IPC, for he, as per the evidence of the
prosecution, had not done any overt act to cause any
injury to the deceased. The aforesaid submission assumes
the proposition that even if the factum of unlawful
assembly is proven by the prosecution, then also the
Court is required to address the individual overt acts of
each of the accused. In Baladin v. State of U.P.18, it
was held that mere presence in an assembly does not
make such a person member of an unlawful assembly
unless it is shown that he had done something or omitted
to do something which would make him a member of an
unlawful assembly. The observations recorded by the
three-Judge Bench in the said case was explained by a
four-Judge Bench in Masalti v. State of U.P.19 wherein
the larger Bench distinguished the observations made in
Baladin (supra) and opined that the said observations
must be read in the context of special facts of the case.
18 AIR 1956 SC 181 19 AIR 1965 SC 202
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The dictum that has been laid down Masalti (supra) is to
the following effect:
“....it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.”
24. In Bhargavan v. State of Kerala20, it has been
held:-
“… It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC.”
20 (2004) 12 SCC 414
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25. In this context, we may usefully reproduce a passage
from Ramachandran v. State of Kerala21:
“Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. ‘Common object’ may also be developed at the time of incident.”
26. On the bedrock of the aforesaid pronouncement of
law, the submission canvassed by Mr. Sharma does not
merit any consideration inasmuch as the prosecution has
been able to establish not only the appellant’s presence
but also his active participation as a member of the
unlawful assembly. He might not have thrown the bomb
at the deceased, but thereby he does not cease to be a
member of the unlawful assembly as understood within
21 (2011) 9 SCC 257
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the ambit of Section 149 IPC and there is ample evidence
on record to safely conclude that all the accused persons
who have been convicted by the High Court had formed
an unlawful assembly and there was common object to
assault the deceased who succumbed to the injuries
inflicted on him. Thus analysed, the submission enters
into the realm of total insignificance.
27. At this juncture, we are obliged to deal with the plea
of the accused that Babulal was confined in the house of
the deceased and that was the genesis of occurrence. On
a scrutiny of the evidence it is found that accused Mangal
Singh and Babulal were caught on the spot and confined
to Siria’s house, wherefrom the police apprehended them
and got them admitted in hospital. Babulal died in the
hospital. The High Court on scrutiny of the evidence has
found that there is ample evidence on record to prove that
the accused persons were aggressors and it is they who
arrived at the place of occurrence and Mangal hurled
abuses and threw the handmade bomb on the chest of the
deceased, Shriram. Thereafter, the evidence shows that
Mangal and Babulal got injuries. The learned trial Judge
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has been guided that there was a free fight. The said
finding is demonstrably erroneous inasmuch as the
prosecution has clearly established the fact that the
accused persons were the aggressors. After the episode
of bombing took place there was pelting of stones and
confinement. It is the accused persons who had come
armed with lethal weapons and it is Mangal who threw the
bomb on the chest of the deceased only because he had
objected to the hurling of abuses. The learned trial Judge,
after taking note of the evidence that Mangal and Babulal
were confined in a room, had opined that there was a free
fight. The High Court on reappreciation and analysis of
the evidence has found that the accused persons were the
aggressors. That apart, as the entire story of prosecution
would show, the accused persons armed with lethal
weapons had gone to the house of deceased and hurled
abuses in filthy language and on being objected to one of
them, namely, Mangal Singh with pre-determined mind
threw the bomb on the chest of the deceased. Regard
being had to the aforesaid evidence, we are inclined to
agree with the view expressed by the High Court that it is
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a case where the appellant deserved to be convicted
under Section 302 in aid of Section 149 of the IPC.
28. Another limb of submission which has been
propounded by Mr. Sharma is that the prosecution has
deliberately not examined other independent material
witnesses who were present at the spot and, therefore,
the whole case of prosecution becomes unacceptable. In
this context, it would be profitable to refer to what has
been held in State of A.P. v. Gian Chand22. In the said
case, the three-Judge Bench has opined that:-
“14. ... Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution.”
It has been further ruled therein that the Court is required
to first consider and assess the credibility of the evidence
available on record and if the Court finds that the
22 (2001) 6 SCC 71
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evidence adduced is worthy of credence, the testimony
has to be accepted and acted upon though there may be
other witnesses available, who could also have been
examined but not examined. In Takhaji Hiraji v.
Thakore Kubersing Chamansingh23, it has been opined
that if the material witness, who unfolds the genesis of the
incident or an essential part of the prosecution case, not
convincingly brought to the fore otherwise, or where there
is a gap or infirmity in the prosecution case which could
have been supplied or made good by examining a witness
who though available is not examined, the prosecution
case can be termed as suffering from a deficiency and
withholding of such a material witness would oblige the
Court to draw an adverse inference against the
prosecution, but if there is an overwhelming evidence
available, and which can be placed reliance upon, non-
examination of such other witnesses may not be material.
Similarly, in Dahari v. State of U.P.24, while dwelling
upon the issue of non-examination of material witnesses,
it has been succinctly expressed that when the witness is
23 (2001) 6 SCC 145 24 (2012) 10 SCC 256
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not the only competent witness, who would have been
fully capable of explaining the factual score correctly and
the prosecution stood fully corroborated by the medical
evidence and the testimony of other reliable witnesses, it
would be inappropriate to draw an adverse inference
against the prosecution.
29. In the instant case, the witnesses, as the High Court
has found and we have no reason to differ, are reliable
and have stood embedded in their version and remained
unshaken. They have vividly deposed about the genesis of
occurrence, the participation and involvement of the
accused persons in the crime and the injuries inflicted on
the deceased, and on each of them. Therefore, non-
examination of any other witnesses who might have been
available on the scene of occurrence, would not make the
case of the prosecution unacceptable. On that score, the
case of the prosecution cannot be thrown overboard.
Thus, we are constrained to reject the submission
canvassed by Mr. Sharma, learned counsel for the
appellant.
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30. In the ultimate conclusion, we hold that laying
emphasis on the minor discrepancies and omissions in the
evidence of prosecution witnesses, who are natural
witnesses to the occurrence and giving stress on
irrelevant aspects and ultimately to record the acquittal,
by no stretch of imagination, can be regarded as a
plausible or possible view expressed by the learned trial
Judge and, therefore, we are of the convinced opinion that
the High Court is justified in reversing the judgment of
acquittal to one of conviction.
31. Resultantly, the appeal, being devoid of any merit,
has to pave the path of dismissal, and we so direct.
.............................J. (Dipak Misra)
..........................., J. (N.V. Ramana)
New Delhi April 08, 2015
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