& Ors Vs. State of M.P  Insc 385 (12 September 2002)
Doraiswamy Raju & Shivaraj V. Patil.Shivaraj V. Patil J.
appellants were tried for offences under Sections 147, 148 and 302 IPC on the
allegations that about four months prior to the incident, some quarrel had
taken place between the deceased Baburam and the appellant No. 4 Dataram in
relation to raising of boundary wall. On 12.4.1983 at about 7.00 P.M. the
deceased accompanied by Ramhet, had gone to Vidyaram (PW-8) to engage some labourers
for cutting crop in his field and while returning from the house of Vidyaram,
when the deceased came near the Chabutra of appellant No. 4, he shouted to the
remaining accused who were there that the deceased was their enemy and he
should not be allowed to go and kill him. The appellant No. 6 Ramjilal
assaulted the deceased with the lathi on his head. When he fell down on the
ground, all the appellants assaulted him. In spite of Ramhet intervening, the
appellants did not stop assaulting.
they found that the deceased had died, the appellants dragged his body from the
spot to place near Tiwaria of appellant No. 1 Bharosi. Thereafter, they ran
away. Bachchulal (PW-10), brother of the deceased lodged first information
report. The incident was witnessed by Vidyaram (PW-8) and Kalicharan (PW-13).
trial court did not believe the evidence of eye-witnesses Vidyaram (PW-8) and Kalicharan
(PW-13); found certain discrepancies in the statements of witnesses; doubted
the evidence of eye-witnesses to have identified the accused in darkness;
consequently, the appellants were acquitted by the trial court giving benefit
of doubt. On appeal by the State, the High Court upset the order of acquittal
recorded by the trial court and held the appellants guilty of the offences
under Sections 147, 302 read with Section 149 IPC and sentenced all the
appellants to rigorous imprisonment for one year under Section 147 and for
imprisonment of life under Section 302 read with Section 149 IPC. Both the
sentences were to run concurrently. Hence, this appeal to this Court.
learned senior counsel for the appellants contended that the High Court was not
right and justified in interfering with the order of acquittal passed by the
Sessions Court merely because one other view was possible; the evidence of
eye-witnesses Vidyaram (PW-8) and Kalicharan (PW-13)being that of interested
witnesses, the trial court was right in not relying on them and the High Court
committed an error in accepting their evidence for convicting the appellants. According
to the learned senior counsel, there were material discrepancies in the
statement of witnesses which seriously affected the prosecution case. Further,
the so-called eye-witnesses could not identify the appellants in the darkness.
The learned senior counsel added that in the absence of any pre- meditation or
common object, the High Court was not right and justified in convicting all the
appellants applying Section 149 IPC. On the other hand, the learned counsel for
the State made submissions in support of the impugned judgment and order
contending that the view taken by the trial court to acquit the appellants was
not a reasonable view having regard to the evidence placed on record.
have carefully considered the submissions made by the learned counsel for the
the eye-witnesses, Ramhet died before he could be examined in the trial court.
PW-8 Vidyaram has testified that he witnessed the whole incident. He has also
stated in his evidence that PW-13, Kalicharan was also seeing the incident from
distance. He narrated about the incident to Bachchulal (PW-10), the brother of
the deceased and also told about the same to Ram Kumar @ Pappu (PW-11) and Bhagwati
(PW-2) (sons of the deceased). He has spoken about the motive as to earlier
quarrel between the deceased and the accused persons with regard to
construction of boundary wall.
also stated that at the time of incident, there was slight darkness but the
faces of the people could be seen in that light.
Kalicharan also supported the prosecution case by saying that he saw the
incident from the house of Kunji and that PW-8 Vidyaram and Ramhet also saw the
incident. He has further stated that PWs 11 and 12 (sons of the deceased) also
came to the spot. Bachulal (PW-10) brother of the deceased has stated that Vidyaram
(PW-8) informed him that his brother was killed by the accused persons. The
testimony of PW-11 and PW-12 support the testimony of PW-8 and PW-10 that they
also went to the spot.
H.S. Sharma, (PW-1) who conducted the post- mortem found 10 injuries on the
body of the deceased and opined that cause of death was head injury which might
have been caused by lathi. It is the testimony of PW-8 that Ramjilal (appellant
No. 6) hit the deceased on his head. Weapons were also recovered at the
disclosure of the accused and the accused were absconding after the incident.
trial court did not place reliance on the evidence of eye-witnesses PW-8 and
PW-11 on the ground that Pw-8 is the brother of the deceased and PW-13 is the
servant of another brother of the deceased and as such they were interested
witnesses and that their conduct was unnatural. The trial court found fault
with the prosecution for not examining one Jagdish stating that although Vidyaram
had stated that 15 to 20 minutes before the incident, he had seen Kalicharan
and jagdish. It found that the conduct of Vidyaram (PW-8) was unnatural as he
made no efforts to save the deceased. The learned Sessions Judge also concluded
that PW-8 could not see the incident from the place having regard to the spot
map (Exbt. P-14). He doubted the possibility of identifying the accused because
of darkness. The trial court noticed certain discrepancies in the statement of
witnesses. For these reasons ultimately, the learned Sessions Judge acquitted
is no difficulty in accepting the proposition that the order of acquittal
cannot be lightly reversed merely because High Court could take a different
view; but in this case, in our view, the High Court was quite justified in setting
aside the order of acquittal although we do not agree with the High Court in
applying Section 149 IPC so as to convict all the appellants for offences under
Section 302 IPC. But in this case having regard to the evidence, we have no
hesitation in holding that the view taken by the trial court was not a
reasonable but an untenable. The appreciation of the evidence by the trial
court was not objective and appropriate keeping in view the broad probabilities
of the case and nature of the evidence.
Court in a case like this was fully justified in setting aside the order of
acquittal recorded by the trial court by dislodging the reasons given by the
trial court for acquittal. The High Court has taken pains to say that merely
because PW-8 is the brother of the deceased and PW-13 was servant of another
brother of the deceased, their evidence could not be discarded when their
evidence was corroborated and supported by the evidence of other witnesses as
because Jagdish, one of the eye-witnesses was not examined, that itself could
not be put against the prosecution when two eye-witnesses were examined, who
fully supported the prosecution case. The High Court was right in saying that
there was nothing unnatural when PW-8 did not make efforts to save the deceased
when the accused were six in number armed with lathis and had attacked the
deceased and as it was neither safe nor desirable for the witness to endanger
his life. It is in the evidence that the dead body was removed from the place
of occurrence to near the kutty machine of appellant No. 1. In that view, the
High Court was right in saying that the trial court was wrong in observing that
PW-8 could not witness the incident from the place where he was standing.
as to the identification of the appellants in darkness, the trial court was
wrong as found by the High Court. PW-8 has specifically stated that although it
was a little dark, still the faces of the appellants could be identified, more
so when they were known to the witnesses. The trial court also committed the
error in giving undue importance to minor discrepancies that too in regard to
the subsequent events and not relating to the actual incident. In this regard,
the High Court has observed that such discrepancies are bound to occur in the
statements of truthful witnesses.
doctor has found 10 injuries on the body of the deceased and his opinion was
that cause of death was due to head injury caused by lathi. The High Court,
while appreciating the evidence of interested witnesses, has kept in view the
principles stated by this Court in the case of Angnoo and others versus State
of Uttar Pradesh (AIR 1971 SC 296). In relation to
the identification of the accused in the darkness, the High Court has clearly
stated that in the month of April, the sun sets at about 7.00 P.M. in the evening, the accused were known to the
witnesses and could be identified even in faint darkness. Here again, the High
Court has relied upon the decision of this Court & Another (1998 (9) SCC 238).
The High Court has also noticed that the enmity between the deceased and the
appellants was not disputed.
having dealt with various aspects, the High Court reversed the order of
acquittal and held the appellants guilty and rightly so in our opinion.
in the absence of any evidence to demonstrate the common object of the
appellants in killing the deceased, we find it difficult to sustain the
conviction of all the accused under Section 302 read with Section 149 IPC. It
is clear from the evidence that it is appellant No. 6 who hit the deceased with
lathi on his head and on that account the deceased died. Dr. H.S. Sharma, PW-1,
has categorically opined that the cause of death of the deceased was due to
this head injury. There is nothing in evidence to indicate that the deceased
was to go to the place of incident on the date of occurrence at the given time.
The appellants even as per the prosecution case had lathis in their hands.
Having regard to the nature of injuries other than the head injury and the
parts of the body on which the injuries were caused, it could not be said that
the appellants 1 to 5 either had intention or knowledge to kill the deceased.
3 and 6 are the sons of appellant No. 1 and appellant No. 2 is the brother of appellant
4 and 5 belong to different family. The appellants 1 to 5 could be held guilty
for an offence under Section 147 having regard to their individual acts and not
for an offence under Section 302 IPC as there was no common object to attract
Section 149 IPC.
having considered all aspects, we hold the appellant No. 6 Ramjilal guilty for
an offence under Section 302 IPC and uphold the conviction and sentence passed
against him by the High Court for imprisonment for life and set aside the
conviction and sentence as far as appellants 1 to 5 are concerned for an
offence under Section 302 IPC. We uphold the conviction and sentence of
appellants 1 to 5 for an offence under Section 147 and sentence them for
imprisonment already undergone. The appellants 1 to 5 shall be set at liberty
forthwith if not required in any other case.
appellant No. 6 Ramjilal shall remain in jail to serve the remaining sentence.
appeal stands disposed of in the above terms modifying the impugned judgment and
order of the High Court to that extent.