Tulsiram & Ors. Vs. State of M.P.  INSC 915 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 869 OF 2008 ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 4710 OF 2007 TULSIRAM & ORS. ......
C.K. THAKKER, J.
1. Leave granted.
2. The present appeal is directed
against the judgment and order passed by the Court of Additional District &
Sessions Judge, Chanchoda, District Guna on February 22, 2000 in Sessions Case
No. 587 of 1997 and confirmed by the High Court of Madhya Pradesh, Jabalpur 2 (Gwalior Bench) on December 11, 2006 in Criminal
Appeal No. 210 of 2000.
3. The short facts of the case are
that First Information Report (FIR) was lodged by one Ram Singh (PW7), son of
Ram Prashad Meena resident of Kulakheda on October 1, 1997.
According to the prosecution, on October 1, 1997, one Ramesh
Singh was going from Anjali to Kumbhraj on motor-cycle of one Govind Singh
along with Raghuveer Singh and Hukum Singh.
When they reached near Khatakiya
Tiraha, all accused persons who were hiding themselves in the shadow of a Mini
Bus and armed with lethal weapons, like lathi, farsa and luhangi appeared,
stopped the motor-cycle driven by Ramesh Singh and started beating him by
inflicting blows. Accused-2 Bhagwan Singh caused farsa blow on the left hand of
Ramesh, Accused-1 Tulsiram caused luhangi blow on parietal region of Ramesh
Singh, Accused-4 Daku and Accused-3 Roop Singh gave lathi blows on legs and
knees of Ramesh Singh. Raghuveer 3 Singh Meena came to the rescue of Ramesh
Singh, but Accused-1 Tulsiram inflicted luhangi blow over his right hand.
Raghuveer Singh Meena, hence, immediately ran away from the place of
occurrence. Several injuries were caused by accused persons to Ramesh Singh.
Ramesh Singh fell down and became unconscious. All the accused then took Ramesh
Singh and threw him in the pit. Hari Singh, Chandan Singh and Ram Singh
meanwhile came at the place of occurrence and saw the accused running away from
the place. Ramesh Singh was then taken out of the pit, was placed in a Matador
and was taken to the Police Station Kumbhraj. Injured Raghuveer Singh Meena
also reached the Police Station.
4. According to prosecution,
Ramesh Singh and injured Raghuveer Singh were plying passenger-jeep between
Kumbhraj to Khatakiya and Khatakiya to Kumbhraj. The accused persons demanded
Rs.50/- per day, per trip. The injured, however, did not oblige the accused
which was the route cause and with a view to 4 teach a lesson to Ramesh Singh
and Raghuveer Singh, the accused persons assaulted them.
5. A case was registered against
the accused for offences punishable under Sections 307, 325, 323, 147, 148, 149
and 34 of the Indian Penal Code (IPC). After usual investigation, challan was
filed in the Court of Judicial Magistrate, First Class who passed an order of
committal in view of the case being triable by a Court of Session. The accused
did not plead guilty and claimed to be tried.
6. The prosecution, to prove its
case against the accused, examined fourteen witnesses. The learned Additional
Sessions Judge held that the prosecution was able to establish the case beyond
reasonable doubt against the accused and after hearing them, passed an order of
conviction and sentence. The High Court confirmed the order passed by the trial
7. Against the order of conviction
and sentence, the appellants have approached this 5 Court. Prayer for exemption
from surrendering was rejected by this Court. The appellants thereafter
surrendered and notice was issued.
Records and proceedings were
called for. Since neither exemption from surrendering was granted nor the
accused were enlarged on bail, the matter was ordered to be posted for final
8. We have heard the learned
counsel for the parties.
9. The learned counsel for the
appellants contended that both the courts committed an error in convicting the
appellants. It was submitted that the genesis of the prosecution was doubtful
as the prosecution has not come with clean hands. It has suppressed material
facts from the Court. Apart from omissions and material contradictions in the
testimony of witnesses, even medical evidence does not support the case of the
prosecution. It was submitted that according to PW4 Dr. A.D.
Chinchurkar, Ramesh Singh had
received only 6 three injuries. Ramesh Singh, however, stated in his evidence
that he had received 28 injuries. Ramesh Singh himself has stated before the
Police that there were other persons over and above accused and even those
persons had assaulted him. Thereafter, however, he totally turned round and
stated on oath before a Court of law that other persons were not there. The
evidence of injured Raghuveer Singh is of no use to the prosecution as after
receiving injury, he had left the place and was not there. The third person
(Hukum Singh) virtually did not support the prosecution.
According to the counsel, the
accused persons were falsely implicated and involved because of `business
rivalry'. Ramesh Singh and Raghuveer Singh were running taxi without any
When the accused persons objected
to such illegal activity, they were roped in a criminal case. It was,
therefore, submitted that the appellants are entitled to acquittal.
10. It was further submitted that
the courts below had committed an error of law in not considering the
provisions of Sections 360 and 361 of the Code of Criminal Procedure, 1973
(hereinafter referred to as `the Code') which enjoin the Court to release
offenders on probation of good conduct if the offence is not punishable with
death or with imprisonment for life. In the instant case, though the charges
were framed for offences punishable under Sections 307, 325 and 323 read with
Sections 147, 148, 149 and 34, IPC, the trial Court acquitted all the accused
for an offence punishable under Section 307, IPC. The said acquittal is not
challenged and it has attained finality. The conviction was recorded for
offences punishable under Sections 325 and 323 read with Section 34, IPC and
not for an offence punishable with imprisonment for life.
It was, therefore, obligatory on
the Court to consider grant of probation. Non-consideration thereof has
vitiated the order of sentence.
8 Finally, it was submitted that
after the incident, the accused had remained in jail for quite some time and
even after the order passed by the High Court in December, 2006, neither
exemption from surrendering was granted nor they were enlarged on bail and they
are in jail since then. Therefore, even if this Court finds that the order of
conviction and sentence is in consonance with law, on the facts and in the
circumstances of the case, the period which the appellants have already
undergone in jail may be treated as sufficient.
11. The learned counsel for the
State, on the other hand, supported the order passed by the trial Court and
confirmed by the High Court. It was submitted that on the basis of evidence
adduced by the prosecution and appreciating the depositions on oath of
prosecution witnesses, both the courts below have recorded a finding that the
accused had committed the offences in question and convicted them. This Court
does not re- 9 appreciate the evidence under Article 136 of the Constitution
and as such, the appeal deserves to be dismissed. As to non-compliance with
Sections 360 and 361 of the Code, it was submitted by the counsel that looking
to the facts of the case and the manner in which the offences have been
committed, no benefit of the said provisions could be extended to the accused.
It was, therefore, submitted that the appeal deserves to be dismissed.
12. The learned counsel for the
appellants invited our attention to the deposition of PW4- Dr. A.D.
Chinchurkar. He stated that on October 1, 1997 at 5.30 p.m., Ramesh Singh, son
of Madansingh Meena was brought by constable Rambharose for his medical examination.
Ramesh Singh was unconscious. Whole body with clothes had been soiled with wet
soil. Breathe and heartbeat was continuing. He found following three injuries
from the person of Ramesh Singh:
wound on scalp of head 6x1 cm x 1 cm scalp thickness deep in middle of scalp on
lacerated wound in 1x1x0.5 cm area on backside of head.
lacerated broken wound 2x1x1.5 cm on left hand with apparent fracture of bone.
13. According to this witness, all
the three injuries appeared to have been caused with `hard and blunt' weapons.
In cross- examination, the witness stated that Ramesh Singh had sustained `only
three injuries'. He further admitted that the injuries could not possibly be
sustained with any sharp weapon.
14. Now, reading the evidence of
victim Ramesh Singh, injured and the star witness of the prosecution, it is
clear that according to him, he was `attacked' by Accused No.1- Tulsiram,
Accused No.2-Bhagwan Singh, Accused No.3-Roop Singh and Accused No.4-Daku. Bhagwan
Singh had administered farsi blow on his left hand. Tulsiram had given luhagi
blow on 11 forehead and Daku and Roop Singh gave lathi blows. He stated that in
his police statement, besides names of four accused, he had not mentioned any
other name. In view of the above statement, the prosecution requested the Court
to declare the witness `hostile' and permission was sought to put questions
which could be put in cross-examination. Such permission was granted. It was
then brought on record that in the police statement, the witness had stated
that over and above the accused persons, one Harsingh Meena, Ramcharan Meena
and Harbhajan Meena were also present with lathis and they had also inflicted
lathi blows on the witness and had thrown him in the ditch. The witness though
admitted in the cross-examination that he could not say exact number of
injuries he had sustained but there were more than 28 injuries on his whole
body. Out of those injuries, 5-6 injuries were of grievous nature and remaining
injuries were simple.
15. From the deposition of other
injured witness Raghuvir Singh also, it appears that the prosecution has not
come forward with all facts. In his evidence on oath, Raghuvir Singh stated
that Tulsiram had given wood blow to him and then stated that Tulsiram had
given luhagi blow to Ramesh and lathi blow to the witness.
The witness then ran away from
there out of fear. According to the witness, after running away from the place
of occurrence, he went to nursery situated near Khatkiya and then reached
Kumbhraj where he lodged report at Police Station, Kumbhraj. The witness
asserted that the police had written his report and obtained his signature on
the report. No such report, however, has been produced by the prosecution at
16. PW9-Hari Singh, in his
statement admitted that he had seen the quarrel while returning from Fadalpur
to Kumbhraj. According to him, the accused persons present in the Court had
beaten Ramesh Singh. The witness 13 intervened in the fight and requested the
accused persons not to beat Ramesh Singh. He, however, stated that except the
witness, nobody intervened in the fight. Later on, Ram Singh came there and the
witness and Ram Singh pulled Ramesh out of the ditch. He further stated that
besides the three accused, nobody had beaten Ramesh.
17. The Addl. Public Prosecutor,
in respect of this witness (Hari Singh) also, made prayer to the Court to
declare him `hostile' and to permit to put questions which could be put in
cross-examination and the permission was granted. The witness was then
confronted with his police statement wherein he stated that Tulsiram Meena,
Bhagwan Singh Meena, Roop Singh Meena and Daku Meena were beating Ramesh Singh
with lathi, luhagi and farsi with intention to kill him. Though the witness denied
it and went to the extent that the police did not record his statement, the
contradiction had been duly established. He went to the extent that police 14
had written wrong statement. He denied that accused Roop Singh Meena had beaten
Ramesh Singh in his presence and that it was wrong that in collusion with
accused Roop Singh, he was not giving correct evidence.
18. From the above evidence and
discussion, it appears that the prosecution has not come with clean hands and
the genesis becomes doubtful. The prosecution-witnesses and in particular the
star witness injured, PW5- Ramesh Singh himself was declared `hostile' by the
prosecution as it was clear that though initially his case was that over and
above four persons who were before the Court, three other persons were very
much present, but subsequently, he stated that they were not present. Not only
that three other persons were present at the scene of offence, but they were
armed with weapons, their common object was to beat the witness and in fact they
attacked the witness with lathis. The initial case, however, was subsequently
totally changed and the 15 witness had gone to the extent that over and above
four accused before the Court, nobody was present and he was not attacked and
beaten by anyone else.
19. According to the said witness,
he had sustained several injuries (28 injuries) but according to the medical
evidence, there were only three injuries on the person of Ramesh Singh.
Further, according to the witness, the injuries were caused by farsi, luhangi
and sticks. Medical opinion, on the other hand, goes to show that injuries were
possible by `hard' and `blunt' substance and not by any `sharp' weapon. All the
three injuries referred to hereinabove also clearly prove it. They were all
lacerated wounds and no incise wound was found on the person of Ramesh Singh.
20. PW6-Raghuveer Singh's evidence
also was shaky. He was not sure as to with which weapon, he was beaten.
Moreover, according to him, he lodged a report at the police station 16 on which
his signature was taken, but that report is not forthcoming.
21. PW9-Hari Singh, who had
intervened in the scuffle, was also declared `hostile'. His evidence also did
not go to show that the incident had happened in the manner deposed by the
22. Considering facts and
circumstances in their totality, evidence of prosecution witnesses,
particularly of the witnesses who were `attacked', and had been declared
`hostile' (partly or fully) coupled with the medical evidence, so far as
injuries sustained by PW5-Ramesh Singh is concerned and withholding of report
said to have been lodged by PW6-Raghuveer Singh, in our opinion, this is not a
case to reach a finding that the accused had committed the offences with which
they were charged. If it is so, obviously the benefit of doubt should be given
to them. We accordingly hold that it cannot be said `beyond reasonable 17
doubt' that the accused had committed the offences with which they were
23. For the foregoing reasons, in
our opinion, the appeal deserves to be allowed and is accordingly allowed. The
order of conviction and sentence recorded by the trial Court and confirmed by
the High Court is set aside.
24. In view of acquittal recorded
by us, the question of consideration of provisions of Sections 360 and 361 of
the Code and grant of benefit to the accused does not arise and we express no
25. The appeal is accordingly
allowed. The conviction and sentence of the appellants is set aside.
(C.K. THAKKER) NEW DELHI,