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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO.1785 OF 2011

SHANKER … APPELLANT VERSUS

STATE OF MADHYA PRADESH … RESPONDENT

W I T H

  CRIMINAL APPEAL NOS. 1786-1788 OF 2011

SURESH DHOBI … APPELLANT Versus

STATE OF MADHYA PRADESH … RESPONDENT

JUDGMENT            

N.V. RAMANA, J.

These appeals by special leave are directed against the

judgment dated 12th September, 2007 passed by the High Court of

Madhya Pradesh, at  Jabalpur in Criminal  Appeal Nos. 315, 316,

333  and  590  of  1999,  whereby  the  High  Court  dismissed  the

criminal  appeals  filed  by  the  appellants  herein and affirmed the

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order of conviction and sentence passed by the trial Court against

them.

2. Brief facts of the case, according to the prosecution, are

that on 8th May, 1998 one Sanjay Sorle was attending a marriage at

Bharveli village. While the ceremonials were underway, one Deepak

with  two  others  arrived  there  on motorcycle.  An  altercation had

taken place between Sanjay Sorle and the motorcyclists. Deepak,

while leaving that place, threatened Sanjay Sorle and went away.

After that, he came back to the marriage venue at about 10.30 p.m.

on a bullet motorcycle with Gudda @ Shivshanker, Shiv,  Suresh

(appellant  herein)  and Shanker  (appellant  herein)  and took away

Sanjay  Sorle  from  the  venue  to  the  road  and  assaulted  him.

Altogether 11 persons were allegedly involved in the crime. Gudda

had inflicted injuries with knife, Shiv with Gupti while Shanker and

Suresh i.e. appellants herein attacked him by giving fist blows. The

injured Sanjay Sorle was taken to police station at Bharveli  and

lodged the F.I.R. at 11 p.m.

3. Upon registering the same as  Crime No.  54/98,  police

sent the injured Sanjay Sorle to the District Hospital at Balaghat for

treatment, where he was declared dead. After conducting inquest

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(Ext.P3),  dead  body  of  the  deceased  was  sent  for  postmortem,

statements of witness were recorded, site map has been prepared

by  Patwary  (Ext.  P5)  as  well  as  police  (Ext.P24).  Accused  were

arrested  and  at  the  instance  of  accused  Shivshankar,  Manoj,

Dwarka  and  Shivkumar  knives  and  other  incriminating  material

have been seized. Bullet motorcycle, allegedly rode by the accused,

has also been recovered from the possession of accused Chokhu @

Sudhanshu  (Ext.  P9).  Other  things  such  as  bloodstained  soil,

normal soil and clothes of deceased were seized and sent for expert

examination. Charges were levelled against five accused persons i.e.

Manoj,  Baburao,  Deepak,  Gudda  @  Shivshanker,  Shanker  and

Dwarka @ Dan under Sections 148 and 302/149, IPC. In addition

to those charges, accused Rupesh, Chokhu @ Rakesh, Suresh, Shiv

Kumar and Dablu @ Sudhanshu were additionally charged for the

offence punishable under Section 3(2)(5) SC & ST Act, 1989. The

accused denied the charges, pleaded to have been falsely implicated

and claimed to be tried.

4. After  an  elaborate  trial,  learned  Additional  Sessions

Judge  by  a  common  judgment  in  Special  Sessions  Case  No.

51/1998 and Sessions Case No. 120/1998, acquitted six accused

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persons from all the charges and discharged the accused (including

appellants herein) from the charges under Section 3(2)(5) of SC &

ST  Atrocities  Act,  1989.  However,  the  trial  Court  came  to  the

conclusion that  the  remaining  five  accused (including  appellants

herein) were guilty of the offences punishable under Sections 148,

302/149, IPC. Accordingly by judgment dated 27th January, 1999

they were convicted and sentenced to suffer rigorous imprisonment

for  a period of  one  year  for  the offence under  Section 148,  IPC.

Whereas, for the offence punishable under Section 302/149, IPC

they were sentenced to suffer life imprisonment and to pay a fine of

Rs.2,000/-  each,  in  default,  to  further  suffer  one  year

imprisonment.  However,  all  the  sentences  were  directed  to  run

concurrently.

5. All  the  five  accused  persons,  being  aggrieved  by  the

judgment of the trial Court, carried the matter in appeal before the

High Court of Madhya Pradesh at Jabalpur assailing the award of

their conviction and sentence. By the judgment impugned herein,

the High Court found their appeal devoid of merits and therefore

dismissed the  same upholding  the  judgment  passed by  the  trial

Court.  Dissatisfied with the same, Accused No. 3—Suresh Dhobi

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and  Accused  No.  5—Shanker  are  before  this  Court  by  way  of

present appeals.

6. We have heard learned counsel for the appellants as well

as learned counsel appearing on behalf of the respondent – State of

Madhya Pradesh. Unfortunately, there is no proper assistance from

the learned counsel appearing on behalf of the appellants, in spite

of taking adjournments. However, learned counsel appearing for the

State  has  submitted  that  since  two  Courts  have  concurrently

affirmed the guilt of the accused, there are no compelling reasons

for  this  Court  to  interfere  with  the  impugned  judgment  and

advanced arguments in support of the same.

7. The  translated  copies  of  evidence  of  prime  witnesses,

P.W.-1 and P.W.5, whose evidence is crucial for this case, which

were filed by the appellant along with appeals are not clear and we

found so many typographical and grammatical mistakes in them.

In  all  fairness,  learned  counsel  appearing  on  behalf  of  the

respondent—State  himself  has  even  filed  translated  copies  of

evidence of PWs 1 and 5. We acknowledge the able assistance of

learned counsel appearing for the respondent—State, in facilitating

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this Court to go through the evidence in the process of arriving at a

just conclusion.

8. The evidence available on record reveals that the entire

case of the prosecution is based on the evidence of two prosecution

witnesses i.e. P.W.1—Ganesh Prasad and P.W.5—Savitri Bai.  

9. It  is  manifest  from  the  evidence  of  P.W.1—Ganesh

Prasad,  that  though  he  had  seen  both  the  accused—appellants

herein, but he knew them only by their face and it is PW5—Savitri

Bai who told him their names, and basing on what she said, he has

got their names recorded in the FIR. He further states that both the

accused have disclosed their names to be Shanker and Suresh. But

it is not clear from his evidence that to whom the accused disclosed

their names. Even though the names of the two accused are there

in the F.I.R., as per P.W.-1, the role played by these two accused is

that they had, along with other accused, beat the victim by giving

blows with fists and legs. It was expressly stated by PW1 that by the

time he thought of  calling for  help,  the accused—appellants fled

away from the place of occurrence.

10. PW5—Savitri Bai, who also happened to be the panch of

the ward, deposed that she was standing at a distance of about 10

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feet from the victim Sanjay Sorle at the marriage venue (Mandap)

accused Shiv took away Sanjay Sorle outside where other accused

Gudda, Deepak, Shanker and Suresh were present. Contrary to the

statement  of  PW1,  she  deposed  that  the  accused—appellant

Shanker was armed with a knife and assaulted the victim while

Shiv assaulted with sword-stick, Gudda with a knife while Suresh

and Deepak caught hold of Sanjay. She says that she did not notice

the  other  persons present at  the place of  occurrence.  When she

shouted loudly, the accused persons fled away and the victim came

to the  Mandap groaning. Whereas, in her cross-examination, she

categorically stated that the scene of offence cannot be seen from

the place of Mandap.

11. From the evidence of PW5, it appears that there is a huge

discrepancy in the prosecution case as to who lodged the FIR. It

was clearly stated by PW5 that it was she who lodged the report at

the  police  station and she had no knowledge about  anyone else

lodging the complaint and also she does not know the reason for

not enclosing her report. She made it clear that after lodging the

report she came back to her home. Then after half an hour when

she returned home, police recorded her statement. It is significant

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to note that PW5 has specifically stated that PW1—Ganesh Prasad

had not lodged the report. It was also clarified by her that none of

the accused assaulted the victim with lathi (stick).

12. At this juncture, it is very much relevant to have a look

at the evidence of  Doctor. According to PW7—Dr.Nilay Jain, who

conducted postmortem on the body of the deceased, the deceased

had sustained the following injuries:

1. One  quenched  wound  at  present  near  the  nipple oblique 2.0 x 1.5 x 3.0 cms.

2. One quenched wound at mid auxiliary line oblique (D) on 10th, 11th and 12th ribs standard sized about 1.5 x 1.0 x 4.5 cms.

3. One  quenched  wound  on  abdomen  at  mid chronological line on 10th, 11th and 12th ribs oblique sized about  3.0  x  2.5  x  6.0  cms.  (depth)  at  thigh (upper side) on lateral aspect.

4. One oblique quenched wound sized about 5.0 x 2.0 x 7.0 cms. on (depth) right renal angle;

5. One horizontal quenched wound dolente sized about 5 x 1.5 x 2.0 cms. (D) injury near nipple is very clear pleasing 2nd and 3rd ribs picking about of the chest (RT atinum).

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The  Doctor  expressed  his  opinion  that  the  death  could  have

occurred  as  a  result  of  shedding  of  excessive  bleeding  from the

heart  and  the  same  could  have  caused  with  18  hours  of

postmortem.  In  the  cross-examination,  it  was  elicited  from  the

Doctor that the death was caused by Injury No. 1 only and there

was no possibility of occurring death from other injuries. The Injury

No. 1, in the opinion of the Doctor, could only be inflicted by a knife

or gupti and not by hand or a lathi.

13. We have given our anxious consideration to the evidence

of prime prosecution witnesses i.e. PWs 1 & 5, it is clear that their

statements  are  not  corroborating  with  the  other  on  material

aspects. It appears that the Courts below have unmindfully given

greater importance to the evidence of PWs 1 and 5, without looking

into the veracity of their statements. First and foremost, if credence

is given to the statement of PW5, the genesis and genuineness of

FIR (Annexure P1) is, undoubtedly questionable. If the FIR (Ext.P1)

was registered on the basis of  complaint of  PW1, which remains

duly proved by the statement of its writer M.G. Choubey (PW17),

then the statement of PW5 could not be believed and given effect to,

as in her deposition she categorically asserts that it was she who

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lodged the complaint with police and PW1 did not lodge any report

to the police. If PW1’s statement is to be believed, it cannot be said

that he was an eyewitness to the incident, as according to him at

the time of incident, he went to the mandap to call for help of other

persons and the place of incident is not visible from mandap. This

fact  also  proved  by  the  evidence  of  Amit—PW4,  another  close

relative of PWs 1 and 5. According to PW4, when he and PW1 were

present in the mandap, Sanjay Sorle came there and fall down going

into the state of unconsciousness. When PWs 1 and 4, gone to see

outside the  mandap,  by then the accused left the place. He says

that he has no knowledge in which direction the accused left. PW5

is none other than niece of  PW1. According to her,  she was the

person physically present at the mandap and followed the accused

when they were taking away the deceased. This only establishes the

factum of  being the eyewitness but crucially  she had omitted to

state to the I.O. about the fact that she followed the deceased to the

scene of offence from the  mandap.  The omission to this effect  is

marked as Ex. D2. In view of that,  the evidence of  PW1 that he

came to know about the names of the assailants through PW5 also

does not inspire confidence.

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14. At  this  juncture,  it  would  be  helpful  to  look  at  the

observations made by this  Court  in  S. Govidaraju vs.  State of

Karnataka, 2013 (10) SCALE 454 in the following words:  

“It is well settled legal proposition that while appreciating the  evidence,  the  court  has  to  take  into  consideration whether  the  contradictions/omissions  were  of  such magnitude  so  as  to  materially  affect  the  trial.  Minor contradictions,  inconsistencies,  embellishments  or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial Court, after going through the entire evidence available, must form an opinion about the credibility of the  witnesses,  and  the  appellate  court  in  the  normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where  the  omission(s)  amount  to  a  contradiction, creating a serious doubt regarding the truthfulness of a witness,  and  the  other  witnesses  also  make  material improvements  before  the  court  in  order  to  make  the evidence acceptable,  it  would not  be safe  to rely  upon such  evidence.  The  discrepancies  in  the  evidence  of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In  such  circumstances,  the  witnesses  may  not  inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt”.

15. On the face of the present case, it can be said without

any hesitation that the prosecution has miserably failed to prove

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the alleged offence by adducing cogent and trustworthy evidence. In

other words, the present case is based on a fragile and weak footing

with several contradictions in the evidences of  prime prosecution

witnesses. Further, most of the prosecution witnesses have turned

hostile and no independent witness supported the prosecution case.

Interestingly,  no  test  identification  parade  was  conducted  even

though PW1 states  that  he could  recognize  the  accused only  by

face, initially there were only five persons named as accused but

subsequently  in all,  11 persons were charged and most  of  them

have already been acquitted by the Courts below. The material on

record  shows  that  a  lathi  (stick)  was  also  recovered  from  the

possession  of  accused,  but  there  was  no  evidence  to  show who

wielded the lathi  in  the assault  against  the  victim.  According  to

PW5, none of the accused assaulted the deceased with lathi.

16. The  judgment  of  the  trial  Court,  in  our  opinion,  filled

with  assumptions  and  presumptions  basing  on  which  the  trial

Court awarded conviction and sentence to the accused. The trial

Court had also pointed out that except Ganesh Prasad (PW1), Amit

(PW4) and Savitri  Bai  (PW5) no other witness has supported the

prosecution  case.  Clearly,  the  statements  of  PWs  1  &  5  do  not

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corroborate on crucial aspects, more particularly the genesis of FIR

remained doubtful, yet the trial Court went on convincing itself with

the evidences of  PWs 1 and 5 and also on the basis  of  its  own

presumptions.

17. The High Court unfortunately has also not dealt with the

matter in accordance with the settled principles of law. Before going

to  award  conviction  against  an  accused  for  the  offence  under

Section 302, IPC the Courts should be mindful of the fact that there

should  be  no  room  to  suspect  the  evidence  of  key  prosecution

witnesses based on whose evidence the conviction is being awarded.

As a general rule, while appreciating evidence in a criminal case,

the Court should bear in mind that it is not the quantity, but the

quality of evidence that is material. It is the duty of the Court to

consider  the  trustworthiness  of  the  witness  and  the  evidence

adduced on record and to assess the same in a prudent manner

whether the same inspires confidence so as to accept and act upon,

before  convicting  an  accused.  Here  it  is  apt  to  look  at  the

observations made by this Court in Harijana Thirupala and Ors.

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vs.  Public Prosecutor, High Court of A.P., Hyderabad,  (2002) 6

SCC 470:

“In cases  where  the  court  entertains  reasonable  doubt regarding  the  guilt  of  the  accused  the  benefit  of  such doubt should go in favour of the accused. At the same time,  the  court  must  not  reject  the  evidence  of  the prosecution  taking  it  as  false,  untrustworthy  or unreliable  on  fanciful  grounds  or  on  the  basis  of conjectures and surmises.  The case of  the prosecution must be judged as a whole having regard to the totality of the evidence.

In appreciating the evidence the approach of the court must  be  integrated not  truncated or  isolated.  In  other words,  the  impact  of  evidence  in  totality  on  the prosecution case or innocence of accused has to be kept in  mind  in  coming  the  conclusion  as  to  the  guilt  or otherwise of the accused. In reaching a conclusion about the  guilt  of  the  accused,  the  court  has  to  appreciate, analyse and assess the evidence placed before it by the yardstick  of  probabilities,  its  intrinsic  value  and  the animus of witnesses.

It must be added that ultimately and finally the decision in every case depends upon the facts of each case”.

18. In the case on hand, the Courts below failed to take into

consideration the contradictions and distortions in the evidence of

PWs 1 and 5. From the evidence of PW1 it clearly transpires that

the participation and the role  played by the accused—appellants

Shanker and Suresh in the crime was limited to giving blows with

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fists and legs to the deceased, while other accused Gudda and Shiv

were  assaulting  the  deceased  with  knife  and  sword  stick

respectively.  A  statement  of  the  prosecution  witness  which  is

otherwise untrustworthy cannot be corroborated by another piece of

unreliable evidence of another prosecution witness. In the FIR also,

it was stated that Shanker and Suresh, the appellants herein, had

beaten the victim with hands and feet and no weapon was ascribed

to have been held by them. Whereas, PW5 states differently that the

accused  Shanker  had  also  attacked  the  victim  holding  a  knife.

There was no corroboration among their statements, who are the

prime witnesses, as to the role played by the accused herein. The

postmortem report and the evidence of PW7 (Dr. Nilay Jain) does

not disclose any injuries suffered by the victim resulted from the

beatings received by fists, cuffs and legs as such injuries are not

visible.  The prosecution had made large number of assailants as

accused  to  have  attacked  the  victim,  but  the  witnesses,  though

their evidences are full of discrepancies, could not be able to state

as to how the appellants herein caused injuries to the deceased

leading to his  death.  In such a scenario,  it  would not be in the

interest of justice to convict the appellants as the standard of proof

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in  a  criminal  trial  is  proof  beyond  reasonable  doubt  and  the

prosecution  could  not  prove  the  guilt  of  the  accused  in  those

standards. The Courts below, basing on their own assumptions and

presumptions,  have  convicted  the  accused.  Though  every

discrepancy  and  contradiction  in  the  evidence  of  prosecution

witnesses  is  not  fatal  to  the  case  of  the  prosecution,  but  the

contradictions in the case on hand goes to the root of the matter are

material ones and basing on such evidence it is not advisable to

convict the accused.

19. In view of the foregoing, we are not able to appreciate the

reasoning given by the Courts below for convicting the appellants

for the alleged offences and we are of the considered view that the

prosecution has miserably failed to prove the guilt of the accused

beyond reasonable doubt.  Resultantly, we set aside the impugned

judgment passed by the High Court and allow these appeals.

               ………..........................J.

      (N.V. RAMANA)                      ……….........................J.

New Delhi,         (S. ABDUL NAZEER) April 18, 2018