@ Masih & Ors Vs. State of Madhya Pradesh  Insc 10 (4 January 2006)
B. Sinha & R. V. Raveendran RAVEENDRAN, J.
appeal is by the four convicted accused against the judgment dated 13.12.2004
of the High Court of Madhya Pradesh allowing in part, Criminal Appeal No.874 of
1995 filed by the State.
The case of the
prosecution is that on 5.7.1993, at about 6 p.m., an unlawful assembly of 27
persons, including Kallu, Safi, Madaniya and Bhuria (appellant nos.1 to 4
herein) and one Anwar, came to the house of Sadruddin (PW-4), armed with
swords, Ballams, lathis, hockey sticks, farsas and dharias, shouting
"kill/cut Sadruddin". Kallu dealt a blow on the head of Sadruddin
with a sword. Madaniya also dealt a blow with a sword on his hand. Shafi gave a
blow of sword injuring his forehead, nose and jaw. Bhuria gave a blow with a
spear injuring his thigh and calf. On seeing Sadruddin being attacked, Sabdar Bano
(PW-6), Noorbano (PW-7), Baby (PW-9) and Annobai (PW-10) rushed to the rescue
of Sadruddin. They were also beaten up by the appellants and their associates. Sabdarbano
received injuries on her head and body.
received injuries on the head. Baby and Noorbano received injuries on their
hands. By then, a Police van came near the spot. On seeing it, the appellants
and others took to their heels.
(PW-3) who was sitting outside her house and who witnessed the entire incident,
along with some others, took the injured persons to the hospital. Kanizbano
also lodged an FIR (Ex. P-28) within half an hour of the incident in Police
Station, Dhar, naming all the 27 persons. They were tried by the 3rd Additional
Sessions Judge, Dhar, for the offences under Sections 147, 148, 307/149,
324/149 and 323/149 of the Indian Penal Code. Appellant Nos.1 and 2 and one Nazir
Khan were also charged under Section 25/27 of the Arms Act.
The trial court
by judgment dated 16.8.1995 acquitted all 27 accused primarily on three
grounds. The first is that all the eye- witnesses belonged to Sadruddin group
who had enmity with the accused and, therefore, their statements were not
reliable. The second is that no independent eye-witness was examined even
though some spectators were stated to be present. The third is that there were
inconsistencies in the statements of the eye- witnesses.
The State filed
an appeal before the Madhya Pradesh High Court in Criminal Appeal No.874 of
1995. Leave to appeal was granted by the High Court under section 378(3) of Cr.P.C.
in regard to five accused (the four appellants and one Anwar) who were
specifically named in the evidence as persons who attacked and injured PWs. 4,
6, 7, 9 and 10. Thus, the acquittal of other 22 who were not named by any of
the witnesses and to whom no specific overt act was attributed, attained
The High Court
by its judgment dated 13.12.2004 allowed the appeal in part, convicted
appellant Nos.1 to 4 and sentenced each of them as follows :
RI for two years
with fine of Rs. 1,000/- in default six months RI under Section 326 IPC
(appellant no. 1) and 326/149 IPC (appellant nos. 2 to 4) for causing skull
injury to PW-4;
RI for one year
with fine of Rs.500/-, in default 3 months RI under Section 324/149 IPC for
causing injuries to PW-6 and PW-9;
RI for six
months with fine of Rs.500/- each, in default 3 months RI to each, under
Section 323/149 IPC, for causing injuries to PWs.7 and 10.
The High Court
directed that all substantive sentences shall run concurrently, and that the
period of detention shall be set off against the substantive sentences awarded to
them. The appeal, in so far as accused Anwar was, however, dismissed by giving
him the benefit of doubt. Feeling aggrieved, Respondents 1 to 4 in the appeal
before the High Court (Accused Nos.1, 11, 19 and 23) have filed this appeal by
special leave. The appellants contend that the trial court which had observed
the demeanour of the witnesses and considered all the facts and circumstances,
had rightly acquitted them of all charges. It is also contended that the High
Court failed to notice that
been falsely implicated on account of previous enmity between the two groups;
several inconsistencies and discrepancies in the evidence of the eye-
members of public were allegedly present at the time of the incident, no
independent witness was examined. It is submitted that in the absence of any
perversity or omission to consider material evidence or apparent error in law,
the judgment of the Trial Court was not open to interference in an appeal
against acquittal. Lastly, it is contended that when only four persons are
found guilty, conviction invoking section 149 IPC is not warranted.
circumstances in which an appellate court will interfere with the finding of
acquittal recorded by a Trial Court are reiterated in Bhim Singh vs. State of Haryana
[2002 (10) SCC 461], thus :- "Before concluding, we would like to point
out that this Court in a number of cases has held that an appellate court
entertaining an appeal from the judgment of acquittal by the trial court though
entitled to reappreciate the evidence and come to an independent conclusion, it
should not do so as a matter of routine. In other words, if from the same set
of evidence two views are possible and if the trial court has taken one view on
the said evidence, unless the appellate court comes to the conclusion that the
view taken by the trial court is either perverse or such that no reasonable
person could come to that conclusion or that such a finding of the trial court
is not based on any material on record, it should not merely because another
conclusion is possible reverse the finding of the trial court."
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
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. Further if it decides to interfere, it should assign
reasons for differing with the decision of the trial court.
who does not belong to the family of the injured Sadruddin and lives near the
house of Sadruddin has stated that Kallu, Safi,
Madaniya, (appellant Nos.1, 2 and 3) had beaten Sadruddin. She has also stated
that they along with others, including Bhuria, (appellant No.4), had come armed
with dharias, farsas, lathis etc., shouting "kill, kill".
Sadruddin (PW-4) has named all the
four appellants and 18 other accused as the persons who came armed with swords,
ballams, hockey sticks, farsas and dharias. He also described the manner in
which each of the appellants had inflicted blows on him.
stated that Kallu hit him on his head with a sword; that Madaniya hit him with
a sword on his hand; that Shafi hit him with a sword on his face injuring his
forehead, eye and nose and breaking his tooth; and that Bhuria gave a blow with
Ballam causing injuries to his thigh and calf.
PW-6, Sabdarbano, daughter of Sadruddin,
specifically stated that appellant nos. 1 to 4 and their friends (who were
present in court) had come armed with spears, dariyas, lathis etc., and that
they were shouting "Maro, kato". She also stated that Kallu hit her
father with a sword; that Shafi had a sword and Bhuria had a spear.
stated that when she along with PW-7 and PW-10 went to rescue her father, they
attacked her and she received sword hits on her hand and ribs and spear hit on
her shoulder and head and that her fingers were fractured. Noorbano, PW-7,
another daughter of Sadruddin stated that appellant Nos.1 to 4 and other
accused had come running and Kallu hit her father on the head using a sword.
also stated that when she, PW-6, PW-9 and PW-10 went to rescue her father, they
were all beaten up by all the accused and that her hand was injured. Baby
(whose father is a nephew of Sadruddin) examined as PW-9, stated that
appellants 1 to 4 chased Sadruddin; that Kallu hit him with a sword on the head
and Shafi hit him on the face with a sword, and that all of them beat Sadruddin.
She also stated that she was hit by someone on right hand. Annobai (PW-10),
niece of Sadruddin stated that Kallu and others came to the house of Sadruddin,
shouting "kill/cut" and Kallu, Bhuria and Altaf hit Sadruddin with
sword/s. She also states that she was hit by a sword on her head by someone.
It is true that only Sadruddin
clearly stated as to who hit him with what weapon and at which part of his
body. The other four eye-witnesses (PWs 6, 7, 9 and 10) have not stated who
landed the blows on them. All of them, however, identify Kallu as hitting Sadruddin
on the head. In addition, Baby (PW-9) has stated that Shafi hit Sadruddin on
the nose and Annobai (PW-10), stated that Bhuria hit Sadruddin with a sword.
The evidence of PWs. 4, 6, 7, 9 and
10 when read with the evidence of PW-3 makes it clear that appellants 1 to 4
along with others, had come armed with swords, spears, hockey sticks etc.;
blow was given when Sadruddin was sitting on Otla of his house and, thereafter,
he ran a few steps and there all the appellants landed him blows with different
weapons. It is also clear that when the womenfolk, namely, PWs.6, 7, 9 and 10
ran to save him, they were also beaten up. The evidence also clearly shows that
neither Sadruddin nor the womenfolk were armed. On the other hand, appellants 1
to 4 were armed when they came in a group along with others to Sadruddin's
house shouting "kill/hit".
evidence of the eye-witnesses is also clear that but for a Police van
intervening at that time, there was the likelihood of Sadruddin and the women
who went to save him, sustaining more injuries.
there was a cross-complaint by the defence group, significantly, none of the
appellants was injured. The evidence also shows that there was a longstanding
enmity between Sadruddin and Kallu. In these circumstances, the High Court held
the appellants guilty.
Though the trial court referred to
the evidence of the eye- witnesses, it chose to disbelieve them merely on
account of minor inconsistencies in their evidence, relating to the exact site
of occurrence and failure to name all who landed blows and the exact nature of
injuries. The High Court, on the other hand, held that minor inconsistencies
and discrepancies regarding the exact place or the point at which the incident
took place or as to who landed the blows is not sufficient to disbelieve the
evidence of injured eye- witnesses. It is not necessary that all eye-witnesses
should specifically refer to the distinct acts of each member of an unlawful
assembly. In fact, it is difficult, if not impossible. This Court in Masalti v.
State of U.P. [1964 (8) SCR 133], observed :
a crowd of assailants who are members of an unlawful assembly proceeds to
commit an offence of murder in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe accurately the
part played by each one of the assailants. Besides, if a large crowd of persons
armed with weapons assaults the intended victims, it may not be necessary that
all of them have to take part in the actual assault.
The trial court was of the view that
absence of an independent eye-witness in the background of previous enmity, was
a serious lacuna. But what the trial court failed to notice is that previous
enmity was not denied and the prosecution case is that Kallu and other accused
came in a group to Sadruddin's house specifically to beat him up. Therefore,
the mere fact that there was enmity between Sadruddin and Kallu cannot be a
ground to reject the clear evidence of the eye-witnesses -- PWs 4, 6, 7, 9 and
10 who were the injured, and PW-3. The High Court has, therefore, rightly held
that the appellants and other accused were the assaulting party; that they had
come together with weapons and had acted jointly and had run away after
injuring Sadruddin and four female members of his family.
We find that the High Court has not
interfered in the matter in a routine manner merely because a different view is
High Court has interfered rightly, in our view, because the trial court
unreasonably disbelieved the evidence of six eye-witnesses on insufficient
grounds. The High Court has also assigned reasons for interfering with
acquittal. We find no error in the decision of the High Court.
The contention that when only four
persons are found guilty, there cannot be conviction under section 149 IPC, has
149 provides 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. Section 141
requires a minimum of five persons for being designated as an 'unlawful
The question has been specifically
considered by this Court in Mohan Singh & Anr. vs. State of Punjab [AIR 1963 SC 174] and 775], and in Dharam
Pal and Others vs. The State of U.P.
[1975 (2) SCC 596]. It is sufficient to refer to the principle as stated in Dharam
Pal (supra), for our purpose :
is true that the acquittal of an accused person does raise, in the eye of law,
a presumption that he is innocent even if he was actually guilty. But, it is
only the acquitted accused person and not the convicted accused persons who
can, as a rule, get the benefit of such a presumption. The effect of findings
on questions of fact depends upon the nature of those findings. If, for
example, only five known persons are alleged to have participated in an attack
but the courts find that two of them were falsely implicated, it would be quite
natural and logical to infer or presume that the participants were less than
five in number. On the other hand, if the court holds that the assailants were
actually five in number, but there could be a doubt as to the identity of two
of the alleged assailants, and, therefore, acquits two of them, the others will
not get the benefit of doubt about the identity of the two accused so long as
there is a firm finding, based on good evidence and sound reasoning, that the
participants were five or more in number. Such a case is one of doubt only as
to identity of some participants and not as to the total number of
participants. It may be that a definite conclusion that the number of
participants was at least five may be very difficult to reach where the
allegation of participation is confined to five known persons and there is
doubt about the identity of even one. But, where a large number of known
persons (such as eighteen, as is the case before us), are alleged to have
participated and the Court acts on the principle that it is better to err on
the side of safety, so that no injustice is done to a possibly wrongly
implicated accused, and benefit of doubt is reaped by a large number, with the
result that their acquittal, out of abundant caution, reduces the number of
those about whose participation there can be no doubt to less than five, it may
not be really difficult at all, as it is not in the case before us, to reach
the conclusion that, having regard to undeniable facts, the number of
participants could not possibly be less than five. " [Emphasis supplied]
The accused before the trial court
were 27 in number. PW- 4 specifically named 22 persons and further named the
four out of them who landed him the blows. PW-3 names 12 persons who came as a
group. Other eye-witnesses also clearly stated that the appellants with other
accused who were present in court had come to attack Sadruddin. As noticed
above, the trial court chose to acquit all the 27 accused. In the appeal filed
by the State, leave was granted by the High Court only in regard to five of the
accused, as they were specifically named as the persons wielding weapons and
causing injuries to Sadruddin and others and as the names of others were
mentioned only as being members of the assembly without any specific act being
attributed to them. The High Court gave benefit of doubt to one of the five (Anwar)
though his presence as a member of the group was accepted. This resulted in
conviction of only four.
does not mean that there is no finding that there was an unlawful assembly.
When the evidence clearly shows that more than five persons armed with swords,
spears etc. had come to the house of Sadruddin with the common object of
causing injury, and injured him. The mere fact that several accused were
acquitted and only four are convicted, does not enable the four who are found
guilty to contend that Section 149 is inapplicable. We may also in this context
refer to the following observations in Masalti vs. State of UP [1964 (8) SCR
133], reiterated in Triloki Nath vs. State of UP reported in JT 2005 (9) SC 370
:- "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."
We, therefore, find no merit in this
appeal and the same is, accordingly, dismissed.