& ANR. Vs. State of M.P.  INSC 153 (16 February 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
1348 OF 2007 KHILAN & ANR. .......APPELLANT VERSUS
SINGH NIJJAR, J.
On 16.2.2010 this Court had passed the following order:
S.K. Dubey, learned senior counsel appearing for the respondent submitted that
arising out of the same judgment, the State of M.P. has also filed another
Criminal Appeal No.1540/2008 against the acquittal of Sangram Singh and
requests that the said appeal may also be heard along with the present appeal.
Appeal No.1540/2008 is taken on board.
appeals are dismissed in terms of the signed order. The reasoned order will
We now proceed to give the reasons.
This appeal has been filed by the two appellants against the
judgment of the High Court of Judicature of Madhya Pradesh in Criminal Appeal
No. 120/98 dated 10.4.2006. The High Court has been pleased to dismiss the
appeal of the petitioner and upheld the conviction and sentence under Section
We may briefly notice the salient facts involved in this appeal.
the case of the prosecution that eight accused persons, namely, Prema, Khilan,
Gaindalal, Sangramsingh, Durzan, Kashi Ram, Gyarsia Lal and Bihari had formed
an unlawful assembly.
armed themselves with deadly weapons and assaulted Toophan Singh, in
furtherance of their common object to kill him, in which they succeeded. It was
stated by the complainant, Prabhulal (PW2) that on 8.12.1991 when he had gone
to the fields to answer a call of nature, he heard the cries of his Mama,
Toophan Singh, shouting "mar diya-mar diya". He went running to the
spot and saw that accused Prema, Gainda and Khilan armed with farsas and
Sangram armed with luhangi along with Durzan, Kashi, Gyarsia Lal and Bihari
armed with lathis, were assaulting his Mama, Toophan Singh. As a result of the
assault Mama, Toophan Singh, fell on the ground. When he tried to intervene the
appellant, Prema exhorted the other accused to kill the complainant also. All
the accused tried to catch him but he ran away and reached his home. After
hearing about the assault from the complainant (PW2), Phool Singh (PW7) and two
other persons, Meharban and Rajaram went to the spot.
the assailants ran away. On an examination of Toophan Singh, they found that he
had died. He had received deep cut wounds over his head and blood was oozing
out of them. Sushila Bai who was working in the field is said to be an eye-witness
of the assault. It is also the case of the prosecution that the Prema and his
sons had a dispute over land with the deceased and his family.
incident was reported by Prabhulal, son of Anant Singh, on the same day at
about 1300 hrs. On the information being received, Crime No.108/91 was
registered at Police Station, Kachnar under Sections 147, 148, 302/149 IPC.
Upon conclusion of the investigation charge sheet was filed and all the eight
accused were sent up for trial. All the accused pleaded not guilty. They all
took up the plea that due to enmity, they have been falsely implicated.
Upon conclusion of the trial the Addl. Sessions Judge acquitted
Durzan, Kashi Ram, Gyarsia Lal and Bihari of all the charges. Prema, Gainda
Lal, Khillan and Sangram Singh were convicted of murder of Toophan Singh under
Section 302/34 and sentenced to life imprisonment and Rs.500/- each as fine. It
was further directed that in case of default they would undergo a further
sentence of two months R/I.
Aggrieved by the aforesaid judgment the present
petitioners/appellants along with Sangram Singh challenged the same in appeal
before the High Court.
The High Court upon re-appreciation of the entire evidence upheld
the conviction and sentence of the appellants, Prema, Khillan, Gainda and
Sangram Singh. However, the conviction and sentence of Sangram Singh was set
aside and he was duly acquitted.
Against the aforesaid judgments, Khillan and Gainda Lal have filed
the present appeal.
We have heard the counsel for the parties. Learned counsel for the
appellant submitted that the prosecution version is inherently improbable. The
evidence of the prosecution witnesses suffers from inherent contradictions.
According to learned counsel it is a clear- cut case of false implication due
to old enmity between the two families. The presence of PW2, Prabhulal, in the
field at 10 am is quite unnatural and doubtful. According to the learned
counsel, in villages people go for their ablutions early in the morning when it
is semi-darkness. Nobody would be seen answering a call of nature at 10 am. In
any event, the statements of this witness are contradictory. He claims to have
taken a utensil with him to wash his face. There was no occasion for him to go
to the field for washing his face as the houses of the parties were located in
the fields and were very nearby. Learned counsel further submitted that on the
basis of the same evidence four persons were acquitted by the Trial Court and
one by the Appeal Court. Therefore, for the same reasons the appellants were
entitled to the benefit of doubt and acquittal. Making detailed reference to
the evidence of the witnesses for the prosecution, learned counsel submitted
that there are different versions given by the prosecution witnesses. Learned
counsel submitted that Toophan Singh could not have gone to the fields at 7
o'clock in the morning without wearing any warm clothes.
not have been wearing only underpants in the month of December. Learned counsel
further submitted that Toophan Singh had actually seen Sushila Bai in a
compromising position with Baba. He was, therefore, attacked by Baba of Toarai.
According to the learned Counsel, Toophan Singh actually died when the tractor
in which he was being taken for treatment overturned.
Learned counsel further submitted that the complainant Prabhulal
(PW2) had categorically stated his Mama, Toophan Singh, used to take the
buffaloes to the fields for grazing every day. On 8.12.1991, he had also gone
to the fields at about 7 am. He had further stated that his Mama used to go to
the fields after drinking tea and return in the afternoon for lunch. According
to the learned counsel if the deceased had gone after only drinking tea, he
would not have had half digested food in his stomach. In the post mortem
report, it is quite clearly stated that the stomach of the deceased contained
half digested food. This could only be if the deceased had eaten about 3 to 4
hours before he died.
In order to discuss the entire evidence the Trial Court formulated
three main issues which needed to be decided in the case.
No.1 is "whether on 8.12.1991 at 10 am Toophan Singh died and his death is
homicide?" The Trial Court notices the evidence of Dr. Natwar Singh (PW1)
who had conducted the post mortem on the deceased on 9.12.1991. This witness
stated that the following injuries were found on the deceased:- (i) An incised
chopped wound over mid of the scalp on both the mid parietal region centrally
of shape "c", of size 5cm x 5 cm x upto brain cut (meningitis and
brain matter) clotted blood present.
incised wound 2.5 cm x 1.5 cm x bone deep over right arm lower 1/3rd on lateral
incised wound transversely oblique over mid of left thigh on lateral aspect of
incised wound over left thigh middle 1/3rd on lateral aspect transversely 5 cm
x 3 cm x muscle cut 1 x = below the injury no 3.
incised wound over mid of left leg on ant. Aspect of size 3 cm x 1.5 cm x bone
contusion over left scrotum on anterior lateral aspect 5cm x 3cm."
witness was of the opinion that cause of death of Toophan Singh was due to
shock as a result of hemorrhage caused by the aforesaid injuries.
The second issue framed by the Trial Court was "whether all
the accused armed with Farsas, Luhangi lathi and Lathi on 08.12.1991 at 10 AM
in furtherance of common object and knowledge assaulted Tufan Singh in Village
Aam Khera Patharia?"
Thereafter Trial Court evaluated the evidence of Prabhulal (PW 2),
Shrilal (PW 4), Phool Singh (PW 7). Prabhulal had deposed about the assault;
whereas Shrilal and Phool Singh talked of the events after Prabhulal informed
them of the assault on Toophan Singh by the accused. The Trial Court noticed
that there was hardly any credible evidence about the assault by Durzan, Kashi
Ram, Bihari and Gyarsia Lal. Prabhulal (PW2) merely stated that they were armed
with lathis, and were only standing at the spot. They did not participate in
the crime. Therefore, they have been acquitted.
The Trial Court rejects the submissions on behalf of the defence
that independent witnesses have deliberately not been examined. It is concluded
that merely because of enmity between the two groups and the close relationship
of the witnesses with the deceased the evidence of Prabhulal (PW2) Shri Lal
(PW4) and Phool Singh (PW7) cannot be disbelieved. For accepting their evidence
the Trial Court notices that the report was immediate lodged in which Prabhulal
and Phool Singh was shown. Investigation was also immediately started. The
Statements of Shri Lal under Section 161 Cr.P.C. were recorded on the same day.
The three witnesses are consistent on the material facts of the incident. The
ocular evidence is corroborated by the evidence of Dr. Natwar Singh (PW1) with
regard to the nature of the injuries, time and cause of death. The injuries
which were found over the dead body were mainly caused by sharp edged weapon
which may be farsas as well as luhangi. The Trial Court then notices the
submission that semi digested food had been found in the intestine, even
though, Prabhulal (PW2) had stated that usually the deceased was taking tea in
Court was of the opinion that Prabhulal (PW2) had merely stated that the
deceased usually consumed tea only but there was no statement to the effect
that on that particular day the deceased had not eaten anything else. The Trial
Court thereafter notices the evidence of Sushila Bai (PW9). It is noticed since
she did not support the prosecution case she had been declared hostile. The
Trial Court disbelieved the witness since 5 incised injuries had been caused on
the body of the deceased which could only have been caused by a sharp weapon.
Sushila Bai had said that Baba had assaulted the deceased with a lathi. The
defence version that Baba had assaulted Toophan, because Sushila Bai had been
found in a compromising position with the Baba, was disbelieved as no question
was put to her on behalf of the accused when she was examined as PW 9. The
Trial Court also concludes that the injuries on the deceased were not the
result of the tractor turning turtle on he was being carried. According to Dr.
Natwar Singh (PW1), there were five incised injuries on Toophan Singh. Only
injury No.6 could have been caused by a blunt weapon. The Trial Court also
noticed that the weapons of offence had been recovered at the instance of the
accused. On the basis of the above the Trial Court concluded that the four
accused namely Prema, Khillan, Gainda and Sangram Singh had inflicted the fatal
injuries on the deceased.
The third issue framed by the Trial Court is whether on the
aforesaid date, time and place the accused persons formed unlawful assembly to
kill Toophan Singh with deadly weapons and using the force and aggressions
committed while assaulting Toophan Singh.
considering this issue the Trial Court has reiterated that the murder was
committed by the accused Prema, Khillan, Gainda and Sangram Singh. It is also
noticed that the participation of Durzan, Kashi Ram, Gyarsia lal and Bihari is
not proved by their mere presence. These persons had no intention to kill
Toophan Singh nor had they formed unlawful assembly to kill him. From the
above, it is quite evident that it was upon the thorough consideration of the evidence
that the Trial Court has rendered its verdict.
In appeal the high court re-appreciated the entire evidence, even
more elaborately. The high court had independently reached its conclusions. It
is noticed that the medical evidence given by Dr.Natwar Singh clearly shows
that the deceased had suffered five incised injuries. The injuries have
resulted in the instantaneous death of Toophan Singh. The High Court reiterates
the reason for disbelieving the testimony of Sushila Bai. On examination of the
evidence given by Prabhulal it is noticed that PW2 had merely stated that his
Mama goes to the fields in the morning after taking tea. He usually comes back
to take lunch in the afternoon. The witness never stated that on that
particular date also the deceased had only taken tea. No clarification with
regard to this was sought from the doctor by either party. In any event this
single factor would not be sufficient to falsify the evidence led by the
prosecution. The High court also discarded the evidence of Sushila Bai on the
ground that the identity of Baba has not been established There was only one
injury on the deceased which could have been caused by a blunt weapon. Sushila
Bai had insisted that Baba had assaulted the deceased with the lathi. The High
Court also comes to the conclusion that merely because the witnesses had been
closely related to the deceased and there is enmity between the families is no
reason to discard the evidence which is consistent and is corroborated. The
weapons have been recovered at the instance of the appellant. It is also
concluded that Toophan Singh had died due to the cumulative effect of all the
injuries which were sufficient to cause death in the ordinary course of nature.
The aforesaid conclusion is also buttressed by the circumstance that Toophan
Singh died immediately upon the injuries being inflicted. Therefore the High
court had endorsed the approach of the learned Trial Court. Upon a close
examination of the evidence of PW2 Prabhulal, the High Court came to a conclusion
that the presence and participation of Sangram Singh in the crime was doubtful.
It is observed that although the evidence of PW2, Prabhulal, and Shri Lal PW4
is consistent with regard to the role played and the weapons used by Prema,
Gainda and Khillan. However it suffers from material
discrepancies/inconsistencies in relation to the role played and the weapons
used by Sangram Singh. It is observed that the statement of Prabhulal is
inconsistent with his statement during investigation under Section 161 of Cr.PC
(Ex.D1). In the report Ex.P2 as well as in his statement under Section 161 of
Cr.PC he has stated that Sangram Singh was carrying luhangi. However, in his
statement he had changed his version and stated that he was carrying and used
farsa. This apart during investigation luhangi was recovered and seized from
his possession. Even Shri Lal PW4 has mentioned that Sangram Singh was having
luhangi in his hand.
he had been given been benefit of the doubt and acquitted.
From the above, it becomes quite evident that appreciation of the
evidence by the courts below cannot be said to have resulted in grave injustice
to the accused/appellants. The findings recorded by the trial court have been
reaffirmed by the High Court on an independent appreciation of the evidence. In
the absence of any infirmity either in the appreciation of the evidence or
apparent miscarriage of justice, it would not be appropriate for this Court to
interfere with the judgments of the courts below. Both the courts have
painstakingly examined the entire evidence led by the parties.Cogent reasons
have been given in support of the conclusions reached by both the courts. In
such circumstances this Court would be rather reluctant to intervene. Even
though the powers of this Court under article 136 of the Constitution are very
wide, but they are exercised only in exceptional cases where substantial and
grave injustice has been done to the aggrieved party.
The scope and ambit of the power of this Court under Article 136
of the Constitution of India to interfere in findings of acquittal or
conviction recorded by the courts below has been a subject matter of discussion
in a number of decisions of this Court. We may notice here only three of the
earlier judgments. In the case of Arunachalam v. P.S.R. Sadhanantham (1979) 2
SCC 297 this Court has observed as follows:
power is plenary in the sense that there are no words in Article 136 itself
qualifying that power. But, the very nature of the power has led the court to
set limits to itself within which to exercise such power. It is now the
well-established practice of this Court to permit the invocation of the power
under Article 136 only in very exceptional circumstances, as when a question of
law of general public importance arises or a decision shocks the conscience of
the court. But, within the restrictions imposed by itself, this Court has the
undoubted power to interfere even with findings of fact, making no distinction
between judgments of acquittal and conviction, if the High Court, in arriving
at those findings, has acted `perversely or otherwise improperly."
Again in the case of State of U.P. v. Babul Nath (1994) 6 SCC 29
this Court, while considering the scope of Article 136 as to when this Court
may possibly upset the findings of fact, it is observed as follows:
At the very outset we may mention that in an appeal under Article 136 of the
Constitution this Court does not normally reappraise the evidence by itself and
go into the question of credibility of the witnesses and the assessment of the
evidence by the High Court is accepted by the Supreme Court as final unless, of
course, the appreciation of evidence and finding is vitiated by any error of
law of procedure or found contrary to the principles of natural justice, errors
of record and misreading of the evidence, or where the conclusions of the High
Court are manifestly perverse and unsupportable from the evidence on
The aforesaid two judgments along with some other earlier judgments
of this Court were considered by this Court in the case of Ganga Kumar
Srivastava v. State of Bihar (2005) 6 SCC 211. In paragraph 10 of the aforesaid
judgment this Court culled out the principles emerging from the earlier
decisions in the following words:
The powers of this Court under Article 136 of the Constitution are very wide
but in criminal appeals this Court does not interfere with the concurrent
findings of fact save in exceptional circumstances.
is open to this Court to interfere with the findings of fact given by the High
Court, if the High Court has acted perversely or otherwise improperly.
is open to this Court to invoke the power under Article 136 only in very
exceptional circumstances as and when a question of law of general public
importance arises or a decision shocks the conscience of the Court.
the evidence adduced by the prosecution fell short of the test of reliability
and acceptability and as such it is highly unsafe to act upon it.
the appreciation of evidence and finding is vitiated by any error of law of
procedure or found contrary to the principles of natural justice, errors of
record and misreading of the evidence, or where the conclusions of the High
Court are manifestly perverse and unsupportable from the evidence on
We have been taken through the evidence in the present case by the
learned counsel for the parties. We are unable to conclude that the appellants
have been able to establish any exceptional circumstances or any miscarriage of
justice which would shock the conscience of this Court. We are unable to
conclude that the opinion expressed by the courts below was either manifestly
perverse or unsupportable from the evidence on record. It is not possible for
this Court to convert itself into a court to review evidence for a third time.
In spite of the strenuous efforts made by the learned counsel for the
appellants, we are of the considered opinion that the present case neither
raises any exceptional issue nor has resulted in miscarriage of justice.
For the reasons stated above, the appeal is dismissed.
Appeal No. 1540 of 2008 -
have earlier noticed in the judgment rendered in Criminal Appeal No.1540/08
that the evidence of the prime witness, Prabhulal (PW2) in relation to Sangram
Singh was inconsistent and contradictory in nature. There was a direct conflict
in the evidence given by Prabhulal and Shri Lal (PW4). There was also
discrepancies in the statement made in Court and the statements made earlier
during investigation as also in the report Ex.P2.
the High Court has expressed an opinion that the presence and participation of
Sangram Singh in the crime is doubtful. This being a possible and a plausible
view would not call for any interference in exercise of our jurisdiction under
Article 136 of the Constitution of India.
view of the judgment passed in Criminal Appeal No.1348 of 2007, this appeal is
.................................J.[Surinder Singh Nijjar]
March 09, 2010