Budhwa
Alias Ramcharan & Ors Vs. State of Madhya Pradesh [1990] INSC 304 (5 October 1990)
Fathima
Beevi, M. (J) Fathima Beevi, M. (J) Kuldip Singh (J)
CITATION:
1991 AIR 4 1990 SCR Supl. (2) 101 1991 SCC Supl. (1) 9 JT 1990 (4) 64 1990
SCALE (2)689
ACT:
Indian
Penal Code, 1860: ss. 147, 149 & 302: Conviction
under--Melee--Particularization of blows given impossible--Nature of injuries
received by victim impor- tant--Need for observance of utmost care and caution
in sifting evidence.
HEAD NOTE:
The
appellants were convicted for offence under Ss. 147, 149 and 302 IPC for
murdering a villager. The prosecution case was that motivated by group rivalry
the accused persons numbering over fifteen attacked the deceased with tabbals
and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on
his way to a nearby village to supply milk. As a result of the injuries
sustained the deceased died on the spot. When PW 1 tried to intervene, site too
was assaulted. She lodged the FIR thereafter the same day against the
appellants others.
At the
trial PW 4 and PW 6 deposed to having seen appel- lants Baran, Bhagau, Karan
and Parsadi armed with lathis and tabbals hurriedly going towards the place of
occurrence ahead of the deceased at a short distance. The medical evidence
disclosed that the deceased had sustained in all seven injuries, two incised
wounds on the scalp, two contu- sions and three bruises.
The
trial court found that the appellants were members of an unlawful assembly and
death of the deceased was caused by them in prosecution of a common object. The
High Court on appeal agreed with the findings of the trial court.
In the
appeal by special leave, it was contended for the appellants that the courts
below had failed to exercise the necessary care and caution that was required
in scrutinising the evidence of the two eye witnesses who were close rela- tions
of the deceased and deeply interested in involving the appellants on account of
enmity, and that in the absence of independent corroboration the conviction
based on the testi- mony of these witnesses was unwarranted.
Disposing
of the appeal, the Court, 102
HELD:
1.1 It is an accepted proposition that in the case of group rivalries and
enmities, there is a general tendency to involve as many persons of the
opposite faction as possi- ble by merely naming them as having participated in
the assault. The court, therefore, has in all such cases to sift the evidence
with utmost care and caution and convict only those persons against whom the
prosecution witnesses can be safely relied upon without raising any element of
doubt. [107C-D] Baldev Singh v. State of Bihar, AIR 1972 SC 464; Raghu- bir
Singh v. State of U.P., AIR 1971 SC 2156 and Muthu Naicker v. State of Tamil Nadu,
[1978] 4 SCC 385, referred to.
1.2
The conviction of the appellants was principally based on the evidence of PW 1
and PW 5, the mother and sister of the deceased. Though their evidence was not
to be discarded as interested, necessary caution should have been observed in
accepting the same in upholding the conviction of all the appellants. [104H;
105A]
2.1 In
a melee, as in the instant case, where several people are giving blows at one
and the same time it will be impossible to particularize the blows. If any
witness at- tempts to do it, his veracity is doubtful. But, it is sim- pler to
make an omnibus statement that all the accused assaulted with their weapons
because that obviates close crossexamination. Therefore, the nature of injuries
sus- tained by the victim assumes importance. [105H; 106A]
2.2 PWs
1 and 5 stated that the accused persons sur- rounded the victim and each one of
them assaulted him with the weapon they had. PW 1 stated that some of the
assailants had given more than one blow, They did not state who caused the head
injuries. They have not attempted to attribute any one of the injuries to any
particular assailant. The evi- dence was in general terms. If a group of more
than fifteen persons had encircled the victim and simultaneously attacked him
with tabbals and lathis without any resistance or any intervention, there would
have been certainly corresponding injuries of the concerted attack on the
person of the vic- tim. The medical evidence shows that besides the two incised
wounds on the scalp which proved fatal the deceased had only five minor
injuries on his person. [105E--G]
2.3
When the several blows with lathis and tabbals could produce only seven
injuries on the person of the deceased the necessary inference would be that
not more than seven persons might have participated in delivering the blows. therefore,
the presence of more than seven 103 persons is doubtful. This aspect of the
case has not been given due weight by the High Court while appreciating the
evidence. [105H; 106A-C]
3.1
The manner in which the incident happened also makes it clear that the
assailants acted in prosecution of the common object to cause the death of the
victim. There is no doubt that more than five persons had actually participated
in the crime. There is clear evidence regarding the identity of only four
persons. Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4
and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their
participation in the crime. [107B-C ]
3.2
The conviction of these four persons has, therefore, been rightly sustained.
Regarding the rest of the appellants there is scope of genuine doubt. Their
conviction and sen- tence are accordingly set aside. [107D]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 168 of 1979.
From
the Judgment and Order dated 29.9.1978 of the Madhya Pradesh High Court in
Criminal Appeal No. 1094 of 1976.
U.R. Lalit,
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants.
Uma Nath
Singh for the Respondent.
The
Judgment of the Court was delivered by FATHIMA BEEVI, J. This appeal by special
leave is di- rected against the judgment of the High Court of Madhya Pradesh
confirming the conviction of the appellants for the offences under sections 147
and 302/149, I.P.C., and sen- tence to undergo imprisonment for life. The
appellants and four persons acquitted by the trial court were tried for the
murder of one Hanuwa. The prosecution alleged that motivated by group rivalry
the accused persons attacked Hanuwa with tabbals and lathis on July 11, 1975 at about 8..30 A.M. The occurrence
happened on the track across the field leading to village Mungeli. Hanuwa
accompanied by his mother Baiyanbai and sister Birjhbai was on his way to Mungeli
to supply milk. When he reached Ghotora near Nayagaon village. the accused
persons advanced towards him and mounted attack. As a result of the injuries
sustained, Hanuwa died on the 104 spot. When Baiyanbai tried to intervene, she
too was as- saulted, Baiyanbai lodged the first information report at 12.00 noon the same day against these appellants and others who
were finally chargesheeted.
Baiyanbai
(PW- 1) and Birjhbai (PW-5) were the two eye- witnesses who unfolded the
prosecution case. Mangal (PW-4) and Dilashbai (PW-6) deposed to having seen
appellants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals
hurriedly going towards the place of occurrence ahead of the deceased at a
short distance. The medical evidence disclosed that Hanuwa sustained in all
seven in- juries: two incised wound on the scalp resulting in multiple fracture
of the parietal bone and tear of right lobe of the brain: two confusions and
three bruises on the forearm, right upper arm scapular region and buttock. Injuries
sus- tained by PW- 1 was incised wound in between right thumb and index finger
which could be caused with any sharp object..
The
plea of the accused was that they were falsely implicat- ed due to enmity. The
learned Sessions Judge accepted the prosecution evidence and convicted these
appellants finding that they were members of an unlawful assembly and death of Hanuwa
was caused by the members in prosecution of the common object of the assembly. Arjun,
Bhikam, Nanku and Parethan were given the benefit of doubt in view of the
discrepancies in mentioning their names and they were ac- quitted. The High
Court on appeal agreed with the findings of the trial court and confirmed the
conviction and sen- tence.
The
conviction of the appellants is assailed before us mainly on the ground that
the two eye-witnesses in the case are close relations of the deceased deeply
interested in involving the appellants on account of the enmity and their
evidence was required to be scrutinised with great care and caution and the
trial court as well as the High Court failed to exercise the necessary caution
with the result conviction has been wrongly recorded leading to miscarriage of
justice.
According
to the appellants' learned counsel, the evidence of the eye-witnesses read
along with the medical evidence renders the prosecution case highly improbable
and doubtful about the presence and participation of the appellants in the
assault. It is submitted that the tendency to involve innocent persons by
merely mentioning their names is dis- cernible and in the absence of
independent corroboration the conviction based on the testimony of PW- 1 and
PW-5 is unwarranted.
We
have considered these arguments in the light of the material evidence analysed
and discussed by the courts below. We find that the conviction of the
appellants is principally based on the evidence of 105 PW- 1 and PW-5, the
mother and sister of the deceased.
Though
their evidence is not to be discarded as interested, the necessary caution has
to be observed in accepting the evidence of these witnesses. It is an accepted
proposition that in the case of group rivalries and enmities. there is a
general tendency to rope in as many persons as possible as having participated
in the assault. "The courts have, there- fore, to be very careful and if
after a close scrutiny of the evidence, the reasonable doubt arises with regard
to the participation of any of those who have been roped in, the court would be
obliged to give the benefit of doubt to them", vide Baldev Singh v. State
of Bihar, AIR 1972 SC 464.
This
Court has in several decisions pointed out that "where there is enmity
between the two factions then there is a tendency on the part of the aggrieved
victim to give an exaggerated version and to rope in even innocent members of
the opposite faction in a criminal case and that therefore the Court has in all
such cases to sift the evidence with care and convict only those persons
against whom the prose- cution witnesses can be safely relied upon without
raising any element of doubt", vide Raghubir Singh v. State of U.P., AIR
1971 SC 2 156. On a perusal of the judgment of the High Court, we find that the
necessary caution had not been observed in the approach to the evidence.
The
occurrence happened on a narrow track. The deceased Hanuwa was going ahead of
his mother and his sister was still behind. The witnesses noticed the
assailants only when they approached the deceased. The evidence is not clear
that the assailants were seen by Baiyanbai or Birjhbai hiding behind the bushes
and emerging from the hiding place. Th witnesses stated that the accused
persons surrounded the victim and each one of them assaulted him with the
weapon they had. PW-1 stated that some of the assailants had given more than
one blow and Parsadi assaulted her when she tried to intervene. If a group of
more than 15 persons encircled the victim and simultaneously attacked him with tabbals
and lathis without any resistance or any intervention, there would have been
certainly corresponding injuries of the concerted attack on the person of the
victim. We have re- ferred to the medical evidence which shows that besides the
two incised wounds on the scalp which proved fatal Hanuwa had only five minor
injuries on his person. PWs 1 and 5 did not state who caused the head injuries.
They have not at- tempted to attribute any one of the injuries to any particu- lar
assailant. The evidence is in general terms. Even in the first information
report, PW- 1 only stated that the persons named therein attacked Hanuwa with tabbals
and lathis and caused his death. In a melee where several people are giving
blows at one and the same time it will be impossible to particularize the
blows. If any wit- 106 ness attempts to do it, his veracity is doubtful. But it
cannot be forgotten that it is simpler to make an omnibus statement that all
the accused assaulted with their weapons because that obviates close
cross-examination. Therefore, the nature of the injuries sustained by the
victim assumes importance. The nature of the injury sustained in spite of the
assertion of the concerted attack with lathis and tab- bals by several
assailants numbering over 15 renders the evidence doubtful about the
participation of such a large number of persons. When the several blows with lathis
and tabbals could produce only seven injuries on the person of the deceased, Hanuwa,
the necessary inference is that not more than seven persons might have
participated in deliver- ing the blows. Therefore, the presence of more than
seven persons is doubtful. This aspect of the case has not been given due
weight by the High Court while appreciating the evidence in the case.
"Where
an occurrence takes place involving rival fac- tions it is but inevitable that
the evidence would be of a partisan nature. In such a situation to reject the
entire evidence on the sole ground that it is interested is to shut one's eyes
to the realities of the rural life in our coun- try. It has to be borne in mind
that in such situation easy tendency to involve as many persons of the opposite
faction as possible by merely naming them as having been seen in the melee is a
tendency which is more often discernible and has to be eschewed and, therefore,
the evidence has to be exam- ined with utmost care and caution and the Court
has to adopt a workable test for being assured about the role attributed to
every accused" vide Muthu Naicker v. State of Tamil Nadu, [1978] 4 SCC
385.
We
have therefore to see whether the testimony of PW-I and PW-5 as against all or
any of the appellants before us finds corroboration with the material on
record. The trial court had acquitted four persons for the reason that their
names had been left out in the narration at some stage or the other. PW- 1
before giving the first information had deliberations with her son PW-3. The
finding of the trial court is that in narrating the incidence to him, PW- 1 had
omitted to mention the names of Arjun and Bhikam. Before Court, PW-1 did not
implicate Nanku. The name of Parethan does not find a place in the F.I.R. It is
for these reasons the trial court acquitted them. On such acquittal, it is
clear that there had been conscious effort to rope in inno- cent persons by
merely naming them. Therefore, the apparent conflict between the medical
evidence and the eye-witness's account could not have been overlooked. We are
of the opin- ion that the High Court has not observed the necessary caution in
accepting the evidence in 107 general terms to uphold the conviction of all the
appel- lants.
We are
thus constrained to consider whether there is any evidence from independent
sources to lend assurance to the version of PWs I and 5 regarding the
participation of any of these appellants. We have indicated that the presence
of at least seven persons at the scene is probable having regard to the nature
of the injuries and the manner of the attack.
It is
also clear from the manner in which the incident happened that the assailants
acted in prosecution of the common object to cause the death of the victim. We
have no doubt in our mind that more than five persons have actually
participated in the crime. We have clear evidence regarding the identity of
only four persons. Appellants Baran, Karan, Bhagau and Parsadi had been located
by PW-4 and PW-6, two independent witnesses, in the locality just before the
incident. This evidence lends assurance to the testimony of PW- I and PW-5
regarding their participation in the crime.
We are
of the view that the conviction of these four persons i.e. Baran, Karan, Bhagau
and Parsadi has been rightly sustained. However, regarding the rest of the
appellants, there is scope of genuine doubt and we are obliged to give the
benefit of doubt to them.
We
accordingly set aside the conviction and sentence of the appellants. namely, Budhwa,
Chandu. Kushwa, Bhuwan, Rajaram. Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram
and they are acquitted of the charges. Their bail bonds stand cancelled.
The
appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned.
These appellants shall surrender to suffer the unexpired portion of the
sentence.
The
appeal is disposed of as above.
P.S.S.
Appeal dis- posed of.
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