Criminal Appeal No 168 of 1979
From the Judgment and Order dated 2991978 of the Madhya Pradesh High Court in Criminal Appeal No 1094 of 1976
UR Lalit SS Khanduja YP Dhingra and BK 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 302149 IPC 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 AM
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 1200 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 vs 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 vs State of UP 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 vs State of Tamil Nadu 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 FIR 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 ie 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
PSS Appeal dis posed of


Summary:
The agitation that started in February 1985 against government policy of reservation in the State of Gujarat turned into communal riots of shocking magnitude between Hindus and Muslims in March 1985 and resulted in mass exodus of Dabgars a Hindu community from their houses in the affected locality
When calm was partially restored some of them returned
Maniben one of the deceased however continued to live in her house with other members of her family
On 9th June 1985 due to absence of military which had been stationed there members of minority community con verged from two sides and indulged in most cowardly and shameful act of pushing open the door of Maniben s house setting fire to it and then chaining it from outside re sulting in death of the lady her two daughters four grand children and son of a neighbour
Next house set ablaze was of Navin and then many others
Charge was framed against sixty three under Terrorist and Disruptive Activities Prevention Act 1985 and various offences including section 302 Indian Penal Code
Fifty six were acquitted by the Trial Judge
Those convicted have come up in appeal
At the same time a reference has been made for confirmation of death sentence
Allowing the appeals and acquitting the accused and discharging reference
this Court HELD 1 Sentiments or emotions howsoever strong are neither 109 relevant nor have any place in a court of law
Acquittal or conviction depends on proof or otherwise of the criminologi cal chain which invariably comprises of why where when how and who
Each knot of the chain has to be proved beyond shadow of doubt to bring home the guilt
Any crack or loos ening in it weakens the prosecution
Each link must be so consistent that the only conclusion which must follow is that the accused is guilty
Heinousness of crime or cruelty in its execution howsoever abhorring and hateful cannot reflect in deciding the guilt
110H 111A B 2 Credibility of witnesses has to be measured with same yardstick whether it is an ordinary crime or a crime emanating due to communal frenzy
Law does not make any distinction either in leading of evidence or in its assess ment
111C 3 To bring home the guilt the prosecution was required to prove the presence of witnesses possibility of seeing the incident by them and identification of the appellants
115C 4 From the location of Ambalal s house it is clear that one could see front of Maniben s house only if he stood in front of it with face towards west south
But that is not the prosecution case
In fact prosecution is silent on this aspect
There is no whisper of the place from where the incident was seen by the witnesses
Was it front of house of Ambalal or inside or roof This was very relevant as every witness admitted that from interior of Ambalal s house the front of neither Maniben s nor Navin s house could be seen
Evidence thus regarding possibility of seeing the appellants from house of Ambalal is very shaky
The prosecution left an important lacuna
116A C 5 Indentification of accused from out of the mob even if they were known from before becomes highly doubtful
116G 6 The finding of the Judge that even though the house of Ambalal is slightly obliquely situated as compared to the house of Maniben it would not at all be difficult for the witnesses who had hid themselves in the house of Ambalal to have correctly identified the accused is not based on appreciation of evidence but on imagination
117G H 7 The prosecution version suffered from serious in firmity
Its failure to bring on record evidence which could establish the possibility or even probability of the witness seeing the occurrence demolishes the whole structure
118A 110