State of Haryana Vs. Shakuntla
[Criminal Appeal No.
658 of 2008]
[With Criminal Appeal
No. 1005 of 2008]
[And Criminal Appeal
No. 1707 of 2008]
J U D G M E N T
Swatanter Kumar, J.
may notice the case of the prosecution in brief at the very outset of this
judgment. On 3rd July, 1994, Manohar Lal (deceased) who had retired from
service as Subedar in the Indian Army, had taken his wife, Smt. Sushila
(deceased) to Delhi for her treatment as she was complaining of pain in the
chest. Naresh Kumar, PW-4 is the eldest son of Manohar Lal. All were residents
of Village Nandrampurbas, Haryana.
the evening, when PW-4 was putting earth on a ditch in front of his house, accused
Matadin and Rajender came there and abused and beat him. However, PW-4 did not
lodge any police report in this regard. On5th July, 1994, Manohar Lal and his
wife Sushila returned from Delhi at about 9 AM. At that time PW-4, his sister
Rajesh, PW-5 and their brother Suresh were sitting at the gate of their house. When
Manohar Lal and Sushila were enquiring about the incident that had taken place
on 3rd July,1994, all the nine accused, namely, Matadin, Rajender, Krishan, Bhim
Singh, Shakuntla, Premwati, Kailash, Sarjeeta and Laxmi came there armed with
lathis and other deadly weapons. Laxmi opened the assault by giving an iron rod
blow which hit Sushila at her leg.
Thereafter, Matadin gave
a Jaily blow on the head of Manohar Lal but Manohar Lal took it at his hand. To
save themselves, Manohar Lal and Sushila started running towards the house of
Guwarias but the accused chased them. Then Krishan gave a Jaily blow which hit
Manohar Lal at his back as a result of which Manohar Lal fell down. Bhim Singh
gave a Kasola blow at his head and then they all started beating Manohar Lal.
Thereafter, all the
accused opened attack on Sushila and beat her mercilessly. Ultimately, considering
both of them dead, all the accused persons ran away towards village Silarpur. When
the children of Manohar Lal went near their parents, they found that Manohar Lal
had died on the spot, but Sushila was still alive and un conscious. Krishan,
son of Richpal, took Sushila to the Civil Hospital, Rewari in aMaruti Van, but
she was declared brought dead by the doctors there.
who had left for the Police Station, Dharuhera, leaving behindPW-5 and his
younger brother near the body of Manohar Lal. On the way near village
Alawarpur, he met Subey Singh, Sub-Inspector who recorded the statement of PW-4
vide Ext. PH. After making endorsement to the Police Station, an FIR vide Exh. PH/1,
was registered in the Police Station, Dharuhera. The process of criminal law
was set into motion against the accused persons on the basis of the statement,
has come on record that the deceased Manohar Lal had, after retirement, been
working in the Indian Army in the Defence Supply Corps(DSC) at Defence Colony,
Delhi. As afore-noted, he had taken his wife for medical treatment to Delhi. In
the evening, the accused Matadin and Rajender had beaten up PW-4. Moreover, in
the year 1986 also, Rajender and Matadin had beaten up Manohar Lal and his wife
Sushila, for which they were also facing criminal trial.
furtherance to registration of the above-mentioned FIR, on 10thJuly, 1994, all
the accused were produced before the Investigating Officer and were arrested. Upon
interrogation, they made disclosure statements on the basis of which weapons of
offence were recovered. Then, the investigation was handed over to Udai Singh, SHO
(PW-17), who after completion of investigation submitted the report to the
court of competent jurisdiction under Section 173 of the Code of Criminal
Procedure, 1973 (for short the CrPC). Having been committed to the Court of Sessions,
the accused were charged with the offences punishable under Sections 148, 302 read
with Section 149, of the Indian Penal Code, 1860 (for short the IPC) and
Section 325 read with Section 149 IPC, to which they pleaded not guilty and
They were tried in accordance
with law and, finally, vide judgment of the Trial Court dated 22nd August,
1997, all the nine accused were held guilty for commission of the offence punishable
under Sections 148 as well as the offence punishable under Section 325/302both
read with Section 149 IPC. The accused were awarded the following sentences,
which were to run concurrently:
2. After going
through the statements of the accused persons and also the submissions made by their
counsel and also the submissions made by the learned PP for the State, I
sentence all the accused persons to undergo rigorous imprisonment for a period
of one year also to pay a fine of Rs. 500/- each and in default of payment of
fine the accused shall undergo RI for a period of three months, for the
commission of offence punishable under section 148 Indian Penal Code. I again
sentence all the accused persons to undergo rigorous imprisonment for a period
of two years and also to pay a fine of Rs. 500/- each and in default of payment
of fine, the accused shall undergo further rigorous imprisonment for a period of
three months, for the commission of offence punishable under section 325 read with
section 149 Indian Penal Code.
I also sentence all
the accused persons to imprisonment for life and also to pay a fine of Rs. 10,000/-
each in default of payment of fine, the accused shall undergo rigorous
imprisonment for a period of 2 years, for the commission of offence punishable
under section 302 read with section 149 Indian Penal Code. All the sentences to
run concurrently. Case property stands confiscated to the State and be disposed
of after the period of limitation. File be consigned to records.
from the judgment of the Trial Court, the accused preferred an appeal before
the High Court. The High Court, vide its judgment dated26th July, 2007, upheld
the conviction and sentence of accused Nos. 1 to 4and 9 while acquitting the
accused Nos. 5, 6 and 8 i.e. Shakuntla, Premwatiand Sarjeeta. It also upheld the
conviction and order of sentence in relation to the accused no. 7 Kailash.
present three appeals have been filed against the said judgment of the High
Appeal No. 658 of 2008 has been preferred by the State of Haryana against the
order of acquittal of three accused namely Shakuntla,Premwati and Sarjeeta,
Criminal Appeal No. 1005 of 2008 has been preferred by five convicted accused
namely, Matadin, Rajender, Krishan, Bhim Singhand Laxmi and Criminal Appeal No.
1707 of 2008 has been preferred by the accused, Kailash against dismissal of
their respective appeals by the High Court. As all the three appeals are from one
and the same judgment, therefore, these appeals shall be disposed of by a
contentions raised on behalf of the accused/ appellant before this Court are :
a. Taking the facts and circumstances
of the case and the evidence cumulatively, an offence under Part I or Part II
of Section 304, IPC is made out and not an offence punishable under Section 302
of the IPC.
b. There was neither common
intention amongst the members of the assembly to cause death of the deceased
persons nor any common object.
c. The witnesses
examined by the prosecution are witnesses related to the deceased and, as such,
the Court could not have relied upon the testimony of such interested witnesses
in convicting the accused.
d. In fact, there was no
assembly, much less an unlawful assembly, so as to attract the provisions of
Section 149 IPC and the accused persons have been incorrectly charged and
convicted for the said offences.
e. The Courts have erred
in law in not giving the same weightage and significance to the defence witnesses
as has been given to the prosecution witnesses. Relying upon the defence
witnesses, the Court ought to have accepted the plea of alibi put forward by the
accused. Upon the correct application of principles of appreciation of evidence,
the accused should have been given the benefit of doubt keeping in view the fact
that the other three accused had been acquitted by the High Court.
f. In Criminal Appeal
No. 1707 of 2008, accused No. 7, Kailash was neither named in the FIR nor was
alleged to have caused any injury. There existed no common object and the
material witnesses had not been examined. Being young boy of 23 years, he had
been falsely involved in the crime and, thus, was entitled to acquittal.
refuting these contentions, the State has made the following contentions in the
appeal preferred by it against the acquittal of three accused :
a. There was no
provocation, but still, the accused persons together assaulted the deceased
persons and continued to assault them till they were certain that the victims
b. In fact, Manohar Lal
had died on the spot while Sushila died on the way to the hospital. The number
of injuries found upon the bodies of the deceased i.e. 30 and 33, respectively,
clearly show that the intention was to kill and not to merely hurt or cause injury
to the deceased persons.
c. From the evidence of
PW-4 and PW-5, it is clear that the accused persons constituted an unlawful assembly
and they had the common intention and object of killing the deceased.
a proper appreciation of the evidence placed on record, it is clear that in the
circumstances, one could hardly expect any other evidence to be available. It
would only be the family members who would be present at the place of occurrence
of the crime and only such interested persons could depose with regard to
commission of the crime. The statements of these witnesses are trustworthy and
offer the graphic eye account of the exact events, during the course of
occurrence. Clearly, there was common object among the members of the unlawful
assembly to somehow do away with Manohar Lal and his wife Sushila.
is a settled principle of the law of evidence that it is not thequantity, but the
quality of evidence that has to be taken into consideration by the Court while deciding
such matters. As already noticed, even in the year 1986, Rajender and Matadin
had beaten Manohar Laland his wife, for which they were also facing criminal
trial. Again, they had abused and beaten Naresh, PW-4 on 3rd July, 1994, when he
was putting earth in the street in front of his house.
Thereafter, on 5th
July, 1994,this unfortunate incident had taken place. When on 5th July, 1994,Manohar
Lal and his wife returned from Delhi, even before they entered their house and
when they were discussing the incident that took place on3rd July, 1994 with
their teenage children, the accused persons, armed with weapons, came there and
started assaulting Manohar Lal and his wife. This clearly shows that Matadin
and the other accused had been looking for an opportunity to fight with Manohar
Lal and his family members, on one pretext or the other. Matadin exhorted the
others to finish them, upon which the accused persons started assaulting the
victims and continued till both Manohar Lal and his wife Sushila died.
The circumstance deserving
the attention of this Court is that, even when Manohar Lal fell on theground as
a result of a blow on his spine, still none of the accused person showed any mercy,
they instead continued with the assault. The statements of Dr. G.S. Yadav, PW-1
and Dr. Kamal Mehra, PW2, and the postmortem reports of the deceased, Ext. PA
and Ext. PC clearly demonstrate the intentional brutality and intent of the
accused to kill the victims. They caused as many as 30 injuries on the person
of Manohar Lal and 33 in jurieson the person of Sushila, resulting in the death
of both of them.
the deceased had tried to run away, but were chased by the accused. While
Manohar Lal exhorted the others, all accused persons, particularly accused No.
7, Kailash, effectively participated in inflicting injuries on the bodies of
the deceased. Thus, a common intention came into existence at the spur of the
moment, even if the same was not pre-existing. The existence of common object
and intent is not only reflected from the circumstantial evidence, but is also
clearly demonstrated in the statement of PW-4 and PW-5, respectively. The offenders,
if have nocommon intention or object to kill the victim, they would normally stop
assaulting the victim and leave him in the injured condition when he fallsdown
on the ground.
On the contrary, in
the case in hand, all the accused, except those acquitted by the High Court,
had participated with a common mind to cause fatal injuries upon both Manohar
Lal and Sushila. PW-4, inhis statement, has clearly and definitely explained the
occurrence, byattributing specific role to each one of the accused. According to
him, Rajender inflicted Jaily blow on the legs of Manohar Lal. Matadin gave Jaily
blow on the head of Manohar Lal, which the deceased deflected with his hands. Krishan
gave Jaily blow on the back of Manohar Lal, where after the victim fell on the
ground. Thereafter, Bhim inflicted Kasola blow on the head of the deceased
Manohar Lal and finally, all the other accused started mercilessly inflicting
blows on the person of the deceased ManoharLal.
statement of PW-4 also shows that the accused persons had also inflicted
injuries on the body of Sushila, with an intention to kill her. The version put
forward by this witness is fully supported by that of PW-5and from other
documentary evidence placed on record. The medical evidence completely corroborates
the story advanced by this witness for the prosecution.
Once, the statement
of a witness is found trustworthy and is duly corroborated by other evidence,
there is no reason for the Court to reject the statement of such witness,
merely on the ground that it was a statement of a related or interested witness.
The learned counsel appearing for the accused relied upon the judgments of this
Court in the case of Waman & Ors. v. State of Maharashtra [(2011) 7 SCC
295], Jalpat Rai& Ors. v. State of Haryana [JT 2011 8 SC 55] and State of Haryana
v. Ram Singh [(2002) 2 SCC 426], to contend that the statement of a related or interested
witnesses should not be relied upon and made the sole basis of conviction by
none of these judgments state this principle as an absolute proposition of law.
Each judgment deals with its own facts. In the case of Waman (supra), the Court
clearly held that if the evidence of the related witnesses is found to be
consistent and true, the same cannot be discarded. Similarly, in the case of Jalpat
Rai (supra), the Court noticed that the presence of the witnesses at the time of
incident would not guarantee their truthfulness. The question to be examined by
the Court is whether their testimony is trustworthy and reliable insofar as complicity
of the appellants in the crime is concerned, or whether they have tried to
implicate the innocent along with the guilty.
the case of Ram Singhs (supra), the circumstances were totally different. In
that case, the interested and related witnesses were not only examined as
witnesses to the incident but they were also witnesses to the arrests and in
view of these facts, the Court felt that there existed a doubt about the
trustworthiness of these witnesses, which must go to the benefit of the
these cases, in fact, would have no application to the present case. In the
present case, it is more than clear that PW-4 and PW-5 were both present at the
time of the incident. The prior animosity and clashes between the two families
has come on record. In the cross-examination, no material was brought out to
the contrary. On the other hand, there seems to be no challenge to vital facts.
The facts of the cited cases being different and there being hardly any
challenge to the vital aspects of the present case, ratio decidend of those
judgments would hardly further the case of the accused.
Bench of this Court in the case of Mano Dutt & Anr. v. State of U.P.
[(2012) 4 SCC 79], (to which one of us, Hon. Swatanter Kumar, J. was a member),
while dealing with the issue of credibility of testimony by interested
witnesses, held as under :
contention raised on behalf of the accused/appellants is that only family
members of the deceased were examined as witnesses and they being interested witnesses
cannot be relied upon. Furthermore, the prosecution did not examine any independent
witnesses and, therefore, the prosecution has failed to establish its case beyond
reasonable doubt. This argument is again without much substance.
Firstly, there is no
bar in law in examining family members, or any other person, as witnesses. More
often than not, in such cases involving family members of both sides, it is a member
of the family or a friend who comes to rescue the injured. Those alone are the
people who take the risk of sustaining injuries by jumping into such a quarrel
and trying to defuse the crisis. Besides, when the statement of witnesses, who
are relatives, or are parties known to the affected party, is credible, reliable,
trustworthy, admissible in accordance with the law and corroborated by other
witnesses or documentary evidence of the prosecution, there would hardly be any
reason for the Court to reject such evidence merely on the ground that the witness
was family member or interested witness or person known to the affected party.
There can be cases where
it would be but inevitable to examine such witnesses, because, as the events occurred,
they were the natural or the only eye witness available to give the complete
version of the incident. In this regard, we may refer to the judgments of this
Court, in the case of Namdeo v. State of Maharashtra, [(2007) 14 SCC 150]. This
Court drew a clear distinction between a chance witness and a natural witness. Both
these witnesses have to be relied upon subject to their evidence being
trustworthy and admissible in accordance with the law.
This Court, in the
said judgment, held as under: 28. From the aforesaid discussion, it is clear
that Indian legal system does not insist on plurality of witnesses. Neither the
legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that
there must be particular number of witnesses to record an order of conviction
against the accused. Our legal system has always laid emphasis on value, weight
and quality of evidence rather than on quantity, multiplicity or plurality of witnesses.
It is, therefore,
open to a competent court to fully and completely rely on a solitary witness
and record conviction. Conversely, it may acquit the accused in spite of
testimony of several witnesses if it is not satisfied about the quality of evidence.
The bald contention that no conviction can be recorded in case of a solitary eyewitness,
therefore, has no force and must be negatived. 29. It was then contended that
the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He
was, therefore, highly interested witness and his deposition should, therefore,
be discarded as it has not been corroborated in material particulars by other
We are unable to
uphold the contention. In our judgment, a witness who is a relative of the
deceased or victim of a crime cannot be characterised as interested. The term interested
postulates that the witness has some direct or indirect interest in having the
accused somehow or the other convicted due to animus or for some other oblique motive.
will be useful to make a reference of another judgment of this Court, in the
case of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790],
where this Court held as under: 26. It is now a well-settled principle of law that
only because the witnesses are not independent ones may not by itself be a
ground to discard the prosecution case. If the prosecution case has been
supported by the witnesses and no cogent reason has been shown to discredit
their statements, a judgment of conviction can certainly be based thereupon. Furthermore,
as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness.
He had no animus against the accused. False implication of the accused at his hand
had not been suggested, far less established.
in a very recent judgment in the case of Balraje @ Trimbak v. State of
Maharashtra [(2010) 6 SCC 673], this Court stated that when the eye-witnesses
are stated to be interested and inimically disposed towards the accused, it has
to be noted that it would not be proper to conclude that they would shield the
real culprit and rope in innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically.
The Court would be
required to analyse the evidence of related witnesses and those witnesses who are
inimically disposed towards the accused. But if after careful analysis and scrutiny
of their evidence, the version given by the witnesses appears to be clear,
cogent and credible, there is no reason to discard the same. 19. When we examine
the facts of the present case in light of the above principles, it is clear
that the presence of PW-4 and PW-5 at the place of occurrence was natural and
their statements, are trustworthy, corroborated by other evidence and do not suffer
from the vice of suspicion or uncertainty. The Court has to give credence to their
statement as they have lost their close relations and have no reason to falsely
implicate the accused persons, who are also their relations.
Thus, we find no merit
in this contention of the learned counsel for the accused.20. Again, while
relying on the judgment of Waman (supra) the learned counsel has contended that
the accused persons were not members of unlawful assembly and they had neither
knowledge nor intention to commit any crime in prosecution of a common object. 40.
Even otherwise, A-12 was also charged under Section 149 IPC as a member of unlawful
assembly with the requisite common object and knowledge. Inasmuch as the prosecution
evidence insofar as women accused is not cogent, their acquittal cannot be
applied to A-12 who was in the company of A-1 to A-6.
As mentioned above,
apart from conviction under Section 302 Dilip, A-12 was convicted under Section
149. Section 149 creates a specific offence and deals with punishment of the offence.
The only thing is that whenever the court convicts any person or persons of any
offence with the aid of Section 149, a clear finding regarding the common
object of the assembly must be given and the evidence disclosed must show not
only the nature of the common object but also that the object was unlawful. In order
to attract Section 149 it must be shown that the incriminating act was done to
accomplish the common object of unlawful assembly. It must be within the
knowledge of the other members as one likely to be committed in prosecution of common
If members of the
assembly knew or were aware of the likelihood of a particular offence being committed
in prosecution of a common object, they would be liable for the same under Section
14921. To bring out this distinction somewhat more clearly, the learned counsel
has relied upon the meaning given to the expression assembly and assemble in
Blacks Law Dictionary and Law Lexicon which reads as under:- Blacks Law
Dictionary, Sixth Edition: Assembly The concourse or meeting together of a considerable
number of persons at the same place. Also the persons so gathered.
Assembly, unlawful The
congregating of people which results in antisocial bahavior of the group, i.e. blocking
a sidewalk, obstructing traffic, littering streets; but, a law which makes such
congregating a crime because people may be annoyed is violative of the right of
free assembly. Advanced Law Lexicon, 3rdEdition : Assemble To bring together;
to collect in one place or as one body; to convene; to congregate. Assembly A
company of persons assembled together in one place usually for a common purpose
generally, for deliberation, legislation, worship of social entertainment.
relying on para 40 of the judgment of this Court in Waman (supra), reliance has
also been placed on Sarman & Ors. v. State of M.P.[1993 Supp. (2) SCC 356]
to argue that as all the appellants were armed with la this, it was not clear
from the statements of witnesses as to which injury had been inflicted by which
accused. All the members of the unlawful assembly cannot be charged with
offences under Sections 302 read with 149, IPC.
the outset, we may notice that in the case of Sarman (supra), the Court had
clearly noticed that on facts, the statement of PW-12 could not be accepted as
it was not reliable. Secondly, it was not stated as to which of the accused had
caused injuries to the deceased. In that case,only 17 injuries had been
inflicted upon the body of the deceased. In contra-distinction thereto, in the
present case, 30 and 33 injuries have respectively had been caused on the
bodies of the deceased, but still, PW-4and PW-5 have attributed specific role to
each individual accused, particularly with regard to the grievous injuries
caused by them.
the case of Ramchandran & Ors. v. State of Kerala [(2011) 9 SCC257], a
Bench of this Court dealt, at some length, with the scope and object of Section
149 IPC. It was held that Section 149 IPC essentially has two ingredients, one,
that the offence must be committed by any member of unlawful assembly
consisting of five or more members and second, such offence must be committed
in prosecution of the common object under Section141 IPC of that assembly or
such as the members of that assembly knew was likely to be committed in
prosecution of the common object. Clarifying the expression common object, the Bench
further said that it is not necessary that there should be a prior concert in
the sense of a meeting of minds of the members of the unlawful assembly. The
common object may form on the spur of the moment. It is enough if it is then
adopted by all the members and is shared by all of them.
the case of Waman (supra), the Court also stated that in order to attract
Section 149 IPC, it must be shown that the incriminating act was one to
accomplish the common object of the unlawful assembly. It must be within the
knowledge of other members that the offence is likely to be committed in
prosecution of the common object, and if such requirement is satisfied, then
they would be held liable under Section 149 IPC.
is not possible to define the constituents or dimensions of an offence under
Section 149 simplicit or with regard to dictionary meaning of the words unlawful
assembly or assembly An assembly is a company of persons assembled together in
a place, usually for a common purpose. This Court is concerned with an unlawful
assembly. Wherever five or more persons commit a crime with a common object and
intent, then each of them would be liable for commission of such offence, in terms
of Sections141 and 149 IPC. The ingredients which need to be satisfied have already
been spelt out unambiguously by us. Reverting back to the present case, it is
clear that, as per the case of the prosecution, there were more than five
persons assembled at the incident. All these nine persons were also convicted
by the Trial Court and the conviction and sentence of six of them has been
affirmed by the High Court. The members of this assembly had acted in
furtherance to the common object and the same object was made absolutely clear
by the words of accused Matadin, when he exhorted all the others to finish the
other words, the intention and object on the part of this group was clear. They
had come with the express object of killing Manohar Laland his family members. It
might have been possible for one to say that they had come there not with the
intention to commit murder, but only with the object of beating and abusing
Manohar Lal and others, but in view of the manner in which Matadin exhorted all
the others and the manner in which they acted thereafter, clearly establishes
that their intention was not to inflict injuries simplicitor. Manohar Lal,
admittedly, had fallen on the ground. However, the accused still continued inflicting
heavy blows on him and kept on doing so till he breathed his last.
They did not even spare
his wife Sushila and inflicted as many as 33 injuries on her body. Where a
person has the intention to cause injuries simplicitor to another, he/she would
certainly not inflict 30/33 injuries on the different parts of the body of the victim,
including the spine. The spine is a very delicate and vital part of the human body.
It, along with the ribs protects all the vital organs of the body, the heart and
Powerful blows on
these parts of the body can, in normal course, result in the death of a person,
as has happened in the case before us. The way in which the crime has been
committed reflects nothing but sheer brutality. The members of the assembly,
therefore, were aware that their acts were going to result in the death of the deceased.
Therefore, we find no merit in this contention of the accused also.
the next argument advanced on behalf of the accused is that accused Kailash has
neither been named in the FIR nor has been attributed responsibility for any injury
and also, no material witness has been examined to attribute any role to
Kailash in the commission of the crime. Thus, he is entitled to acquittal. Kailash
is also related to the deceased as well as to PW-4 and PW-5. PW-4, in his
statement, had clearly stated that accused Matadin, Rajender, Krishan and one of
their other relations, who was later on identified to be Kailash, had reached there,
armed with jailies. Even in the FIR, PW4 had made a similar statement that one
other relative of his, whose name he did not know, had also come there.
Thus, it was a case
where PW-4 had duly identified that person, but did not know the exact name of
that person. Further, it is true that the witnesses have not attributed any
specific role to Kailash, but their statement is clear that all the accused persons
had started inflicting injuries upon the body of the deceased. In other words,
being members of the unlawful assembly, Kailash, along with others, had also inflicted
injuries upon the deceased, in furtherance to the common object and thus, would
also be liable to be held guilty accordingly. Another important feature is that
recovery of Ext. 11 Jaili was made at the behest of accused, Kailash and was
taken into possession vide Ext. PUA/1.
it is not a case based on mere statements by the interested witnesses, but is also
supported by other evidence. Further, if weexamine this case from another point
of view, i.e, if three persons whose plea of alibi has been accepted by the
High Court were indeed absent and as per plea of alibi of other accused,
namely, Krishan and Rajender along with Kailash, they were also not present
there, then it could hardly have been possible for the remaining three persons to
inflict 63 injuries on the bodies of the deceased in a short spam. Not that
this is a determinative factor, but this is a rational manner of looking at the
events, as they appear to have happened in the present case.
prosecution also has examined other witnesses who have deposed unambiguously
involving Kailash also in the crime
the learned counsel appearing for the appellant has contended that the plea of
alibi of Rajender, Krishan and Kailash should have been accepted by the High Court.
The accused have led their defence and produced defence witnesses to prove
their plea of alibi. It is also their contention that the evidence of the
defence witnesses should be appreciated at par with the prosecution witnesses.
this regard, reliance is also placed upon the judgment of this Court in Munshi
Prasad & Ors. v. State of Bihar [(2002) 1 SCC 351].
Trial Court as well as the High Court have disbelieved the plea of alibi of
accused Rajender, Krishan and Kailash.
paragraphs 62 to 67 of the judgment, the Trial Court has discussed, at some
length, the reasons for disbelieving the pleas of alibiraised by the accused. In
fact, the Trial Court noticed the contradictions appearing in the statement of DW-2
and DW-3. It also noticed that either Ext. DB, the certificate, was not correct
or DW-3 Khem Chand was deposing falsely before the Court. The Trial Court also examined
the possibility that keeping in view the distance between the factory and the
place of occurrence, which was nearly 5 kilometers or so, the possibility of
the accused going to the factory after the occurrence could not be ruled out.
recorded by the Trial Court have been accepted by the High Court. The High Court,
keeping in view the evidence led by the defence witnesses accepted the plea of
alibi as far as Shakuntla, Premwati and Sarjeeta are concerned. In respect of the
other three accused, we see no reason to interfere with these concurrent findings,
as they neither suffer from any perversity in law nor any error in appreciation
of evidence. Thus, we also reject the plea of alibi of all these three accused.
learned counsel appearing for the State has not been able to bring to our
notice any rationale as to why this appreciation of evidence was improper. In
order to disturb the findings of fact arrived at by the High Court, this Court
has to have certain compelling reasons.
High Court has acquitted some accused while accepting the plea of alibi taken
by them. Against the judgment of acquittal, onus is on the prosecution to show
that the finding recorded by the High Court is perverse and requires correction
by this Court, in exercise of its powers under Article 136 of the Constitution
of India. This Court has repeatedly held that an appellate Court must bear in
mind that in case of acquittal, there is a double presumption in favour of the
accused. Firstly, the presumption of innocence is available to such accused
under the fundamental principles of criminal jurisprudence, i.e., that every
person shall be presumed tobe innocent unless proved guilty before the court and
secondly, that a lower court, upon due appreciation of all evidence has found in
favour of his innocence. Merely because another view is possible, it would be no
reason for this Court to interfere with the order of acquittal.
Girja Prasad (Dead) By Lrs. v. State of M.P. [(2007) 7 SCC 625],this Court held
as under:- 28. Regarding setting aside acquittal by the High Court, the learned
Counsel for the appellant relied upon Kunju Muhammed v. State of Kerala (2004)
9 SCC 193, Kashi Ram v. State of M.P. AIR 2001 SC 2902 and Meena v. State of
Maharashtra 2000 Cri LJ 2273. In our opinion, the law is well settled. An appeal
against acquittal is also an appeal under the Code and an Appellate Court has
every power to re appreciate, review and reconsider the evidence as a whole
before it. It is, no doubt, true that there is presumption of innocence in
favour of the accused and that presumption is reinforced by an order of
acquittal recorded by the Trial Court. But that is not the end of the matter. It
is for the Appellate Court to keep in view the relevant principles of law, to
reappreciate and reweigh the evidence as a whole and to come to its own conclusion
on such evidence in consonance with the principles of criminal jurisprudence.
Chandrappa v. State of Karnataka [(2007) 4 SCC 415], this Courtheld as under:- 42.
From the above decisions, in our considered view, the following general
principles regarding powers of the appellate court while dealing with an appeal
against an order of acquittal emerge: (1) An appellate court has full power to review,
re appreciate and reconsider the evidence upon which the order of acquittal is
founded. (2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate court on
the evidence before it may reach its own conclusion, both on questions of fact
and of law. (3) Various expressions, such as, substantial and compelling
reasons, good and sufficient grounds, very strong circumstances, distorted conclusions,
glaring mistakes, etc. are not intended to curtail extensive powers of an appellate
court in an appeal against acquittal. Such phraseologies are more in the nature
of flourishes of language to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to review the
evidence and to come to its own conclusion. (4) An appellate court, however,
must bear in mind that in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of innocence is available to him
under the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a competent court
of law. Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
court. (5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.
C. Antony v. K.G. Raghavan Nair [(2003) 1 SCC 1], this Court held:- 6. This
Court in a number of cases has held that though the appellate court has full
power to review the evidence upon which the order of acquittal is founded,
still while exercising such an appellate power in a case of acquittal, the appellate
court, should not only consider every matter on record having a bearing on the
question of fact and the reasons given by the courts below in support of its
order of acquittal, it must express its reasons in the judgment which led it to
hold that the acquittal is not justified. In those line of cases this Court has
also held that the appellate court must also bear in mind the fact that the trial
court had the benefit of seeing the witnesses in the witness box and the
presumption of innocence is not weakened by the order of acquittal, and in such
cases if two reasonable conclusions can be reached on the basis of the evidence
on record, the appellate court should not disturb the finding of the trial court.
(See Bhim Singh Rup Singh v. State of Maharashtra1 and Dharamdeo Singh v. State
State has not been able to make out a case of exception to the above settled
principles. It was for the State to show that the High Court has completely fallen
in error of law or that judgment in relation to these accused was palpably erroneous,
perverse or untenable. None of these parameters are satisfied in the appeal
preferred by the State against the acquittal of three accused.
in these circumstances, we are of the considered view that this is not a case
where the offence with which the accused have been charged and punished can be
converted to an offence under Section 304 Part I or Part II of the IPC.
the reasons afore-recorded, we are unable to find any error of law or error in
appreciation of evidence and therefore, we decline to interfere with the
judgment of the High Court.
appeals filed by the accused, as well as the appeal filed by the State, against
the judgment of conviction/acquittal are hereby dismissed.