BHAGWAN JAGANNATH MARKAD & ORS. versus STATE OF MAHARASHTRA
[2016] 5 S.C.R. 452, Supreme Court of India, 2016
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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[2016] 5 S.C.R. 452 
BHAGWAN JAGANNATH MARKAD & ORS. 
v. 
STATE OF MAHARASHTRA 
(Crimina1Appea1No.1516of2011) 
OCTOBER 04, 2016 
[V. GOPALA GOWD.A AND ADARSH KUMAR GOEL, JJ.] 
· .. ·. 
Penal Code, 1860: 
ss.147, 149, 302 rlw ss.149, 324 and 326 - Political enmity -
Murder of one and injuries to six persons - Acquittal of all accused 
by trial court on the ground that material witnesses were related or 
otherwise interested; that there was improvement in the version 
initially given to police and version put forward before the court; 
and inconsistency in the evidence of the witnesses in the manner of 
assault and the weapon used - High court reversed the order of 
acquittal in case of appellants - On appeal. held: Trial court had 
adopted perverse approach in mechanically rejecting the entire 
evidence comprising of injured eye witnesses by finding one or the 
·other contradiction - The occurrence took place in broad day light 
- One of the accused mentioned about the enmity on account of the 
panchayat election - The said accused himself was injured which 
proved his presence at the scene of the occurrence -
All the five 
eye witnesses consistently named appellants (A-1 toA-7)- Appellants 
(A-1 to A-7) were assigned specific role in assaulting the deceased 
- Therefore, their conviction and sentence ulss.3021149 is not 
interfered with - However, in case of A-JO and A-ll. benefit of 
doubt is granted and they are acquitted since they were not
named 
by PW-11 and PW-18 and also PW-JO attributed specific role to A-
l to A-7 only. 
s.149 - Vicarious liability of member of an unlawful assembly 
- Held: An offence committed in prosecution of common object of 
an unlawful assembly by one person renders members of unlawful 
assembly sharing the common object vicariously liable for the 
offence - When a crowd of assailants are members of an unlawful 
assembly, it may not be possible for witnesses to accurately describe 
the part played by each one of the assailants -
The common object 
has to be ascertained from the acts and language of the members of 
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BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
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MAHARASHTRA 
the assembly and all the surrounding circumstances . 
Evidence: Discrepancies and contradictions in evidence of 
witnesses - Held: Discrepancies may arise due to error of 
observations, loss of memory due to lapse of time, mental disposition 
such as shock at the time of occurrence -Normal discrepancy does 
not affect the credibility of a witness - Only when discrepancies are 
so incompatible as to affect the credibility of the version of a witness, 
the Court may reject the evidence - The discrepancies of trivial 
nature could not be the basis of rejecting the evidence of eye 
witnesses nor non-examination of some of the witnesses be a ground 
to reject the prosecution case when injured eye witnesses were 
examined. 
Appeal: Appellate authority - Scope of interference -
Discussed. 
Partly allowing the appeal, the Court 
HELD: 1. It is accepted principle of criminal jurisprudence 
that the burden of proof is always on the prosecution and the 
accused is presumed to be innocent unless proved guilty. The 
prosecution has to prove its case beyond reasonable doubt and 
the accused is entitled to the benefit of the reasonable doubt. 
The reasonable doubt is one which occurs to a prudent and 
reasonable man. Section 3 of the Evidence Act refers to two 
conditions - (i) when a person feels absolutely certain of a fact ..:. 
"believe it to exist" and (ii) when he is not absolutely certain and 
thinks it so extremely
probable that a prudent man would, under 
the circumstances, act on the assumption of its existence. The 
doubt which the law contemplates is not of a confused mind but 
of prudent man who is assumed to possess the capacity to 
"separate the chaff from the grain". The degree of proof need 
not reach certainty but must carry a high degree of probability. 
[Para 18) [465-C-E) 
2. While appreciating the evidence of a witness, the court 
has to assess whether. read as a whole, it is truthful. In doing so, 
the court has to keep in mind the deficiencies, drawbacks and 
infirmities to find out whether such discrepancies shake the 
truthfulness. Some discrepancies not touching the core of the 
case are not enough to reject the evidence as a whole. No true 
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SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
witness can escape from giving some discrepant details. Only 
when discrepancies are so incompatible as to affect the credibility 
of the version of a witness, the court may reject the evidence. 
Section 155 of the Evidence Act enables the doubt to impeach 
the credibility of the witness by proof of former inconsistent 
statement. Section 145 of the Evidence Act lays down the 
procedure for contradicting a witness by drawing his attention to 
the part of the previous statement which is to be used for 
contradiction. The former statement should have the effect of 
discrediting the present statement but merely because the latter 
statement is at variance to. the former to some extent, it is not 
enough to be treated as a contradiction. It is not every discrepancy 
which affects creditworthiness and trustworthiness of a witness. 
A witness being a close relative is not enough to reject his 
testimony if it is otherwise credible. A relation may not conceal 
the actual culprit. The evidence may be closely scrutinized to 
assess whether an innocent person is falsely implicated. 
Mechanical rejection of evidence even of a 'partisan' or 
'interested' witness may lead to failure of justice. It is well known 
that principle "falsus in uno, falsus in omnibus" has no general 
acceptability. On the same evidence, some accused persons may 
be acquitted while others may be convicted, depending upon the 
nature of the
offence. The court can differentiate the accused 
who is acquitted from those who are convicted. A witness may be 
untruthful in some aspects but the other ·part of the evidence 
may be worthy of acceptance. [Para 19] [465-F-H; 466-A-D] 
3. An offence committed in prosecution of common object 
of an unlawful assembly by one person renders members of 
unlawful assembly sharing the common object vicariously liable 
for the offence. The common object has to be ascertained from 
the acts and language of the members of the assembly and all the 
surrounding circumstances. It is to be assessed keeping in view 
the nature of the assembly, arms carried by the members and the 
behavior of the members at or near the scene of incident. Sharing 
of common object is a mental attitude which is to be gathered 
from the act of a person and result thereof. [Para 21] [466-G; 
467-A] 
4. The trial court has adopted perverse approach in
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
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MAHARASHTRA 
rejecting the entire evidence comprising of injured eye witnesses 
when one person has been killed and six others have been injured. 
Except for some contradictions, the version of eye witnesses PWs 
10, 11, 15, 12 and 18 is consistent. There is rio reason to reject 
their evidence. Of course, the court has to be cautious in 
appreciating evidence and rule out exaggeration. The version of 
AS is not probable and mere fact that injury on him is not 
explained is not enough to reject the prosecution version. In 
such a case, the Court is to examine whether evidence is 
trustworthy, Non-explanation of injuries on accused is an 
important circumstance which requires the court to satisfy itself 
that true version is not suppressed and whether defence version 
is probable. This by itself is not enough to reject the prosecution 
case. -~ince rejection of eye witness account is uncalled for, other 
reasons given by trial court are not sufficient to reject the 
prosecution case. Even if recoveries or Chemical Analyzer's 
report are disregardedly the same have only corroborative value, 
prosecution case is established by credible eye witness account. 
Mere fact that some of the witnesses have not been examined is 
also of no consequence when credible evidence to prove the case 
has been produced. Thus, the High Court rightly reversed the 
trial Court judgment. [Paras 22, 23, 25) [467-H; 468-A, C-E; 469-
D-E] 
5. If the
appellate court is to reverse th~ judgment of the 
trial court, the reasoning of the trial court has to be adverted to 
and reversal of acquittal is permissible only if the view of the trial 
court is not only erroneous but also unreasonable and perverse. 
At the same time, the appellate court has full power to review 
the evidence and to reach at its own conclusion. The appellate 
court can set aside the acquittal if the acquittal is not justified. Of 
course, the appellate court has to consider the fact that the trial 
court has the benefit of seeing the witnesses in the witness box 
and the presumption of innocence is not weakened by the 
acquittal. If two reasonable conclusions can be reached, the 
appellate court should not disturb the finding of the trial court. 
In the present case, the High Court has followed the above 
principles. [Para 28] [470-F-H; 471-A) 
6. When a crowd of unlawful assembly commits an offence, 
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SUPREME COURT REPORTS 
[2016) 5 S.C.R. 
it is often not possible to accurately describe the part played by 
each of the assailants. Though the appreciation of evidence in 
such cases may be a difficult task, the court has to perform its 
duty of sifting the evidence carefully. In the instant case, all the 
five eye witnesses have named Al to A7. Other accused have 
not been named by PWll and PW18. Benefit of doubt is granted 
to AlO and All for the reason that they have not been named by 
PWll and PW18 and also for the reason that PWlO has attributed 
specific role only to Al to A 7. But as far as Al to A 7 are concerned 
(A2 has already died) all the five witnesses have consiste.ntly 
named them. Al to A 7 have been assigned specific role in 
assaulting the deceased. Their conviction and. sentence under 
Section 302/149 of the IPC has to be upheld. [Paras 31, 32] [472-
A·D] 
Masalti _v. State qf U.P. (1964) 8 SCR 133 - relied on. 
Padam Singh v. State of U.P. 1999 (5) Suppl. SCR 59 : 
(2000) 1 SCC 621; Devatha Venkataswamy v. Public 
Prosecutor, High Court of A.P. (2003) 10 SCC 700; 
Narendra Singh v. State of MP. 2004 (3) SCR 1148 : 
(2004) 10 SCC 699; Prasanna Das v. State q( Orissa 
(2004) 13 SCC 30; Majjal v. State of Haryana (2013) 
6 SCC 798; Lalita Kumari v. Govt. qf U.P. 2013 (14) 
SCR 713 : (2014) 2 SCC l; Baby alias Sebastian v. 
Central Inspector of Police (2016) 7 Scale 444; 
Damodar v. State qf Rqjasthan 2003 (3) Suppl. SCR 
904 :
(2004) 12 SCC 336; Mano Dutt & Am: v. State 
of Uttar Pradesh 2012 (3) SCR 686 : (2012) 4 SCC 
79; Sm1jeev v. State qf Haryana 2015 (2) SCR 210 : 
(2015) 4 SCC 387; A. Shankar v. State qf Karnataka 
2011 (6) SCR 999 : (2011) 6 SSC 279; State of 
Karnataka v. Suvarnamma & Am: 2014 (10) SCR 778 
: (2015) 1 SCC 323; Bava Hqjee Hamsa v. State qf 
Kera/a (1974) 4 SCC 479; Patai Alias Krishna Kumar 
v. State U.P. 2010 (3) SCR1135 : (2010) 4 SCC 429; 
Ravishwar ManJ.hi v. State of Jharkhand 2008 (17) SCR 
420 : (2008) 16 SCC 561; T.T. Antony v. State c!( Kera/a 
2001 (3) SCR 942 : (2001) 6 SCC 181; Vijayee Singh 
v. State of U.P. 1990 (2) SCR 573 : (1990) 3 SCC 190; 
Leela Ram v. State of Haryana 1999 (3) Suppl. SCR
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
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MAHARASHTRA 
435 : (1999) 9 SCC 525; GanJ?adhar Behera vs. State 
of Orissa 2002 (3) Suppl. SCR 183 : (2002) 8 SCC 
"381; Takhaji Hiraji v. Thakore Kubersing Chamansing 
(2001) 6 SCC 145; Mano Dutt v. State qf U.P. 2012 (3) 
SCR 686 : (2012) 4 SCC 79; Anand Mohan v. State of 
Bihar 2012 (10) SCR 1: (2012) 7 SCC 225·_ referred 
to. 
Case Law Reference 
1999 (5) Suppl. SCR 59 
referred to 
(2003) 10 sec 700 
referred to 
2004 (3) SCR 1148 
referred to 
(2004) 13 sec 30 
(2013) 6 sec 798 
2013 (14) SCR 713 
(2016) 7 Scale 444 
2003 (3 ) Suppl. SCR 904 
2012 (3) SCR 686 
2015 (2) SCR 210 
2011 (6) SCR 999 
2014 (10) SCR 778 
(1974) 4 sec 479 
2010 (3) SCR1135 
2008 (17) SCR 420 
20Ql. (3) SCR 942 
19~Q (2) SCR 573 
1999 (3) Suppl. SCR 435 
2002 (3) Suppl. SCR 183 
(2901) 6 sec 145 
20lZ (3) SCR 686 
2012 (10) SCR 1 
referred to 
referred to 
referred to 
referred to 
referred to 
'referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
referred to 
Para 14 
Para 14 
Para 14 
Para 14 
Para 14 
· Para 14 
Para 14 
Para 15 
Para 15 
Para 15 
Para 15 
Para 15 
Para 15 
Para 15 
Para 15 
Para 15 
Para 18 
Para 19 
Para 19 
Para23 
Para 23 
Para26 
(1?64) 8 SCR 133 
relied on 
Para 31 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 
No.1516of2011. 
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From the Judgment and Order dated 20.04.2007 of the
High Court 
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SUPREME COURT REPORTS 
[2016] 5 S.C.R. 
of Judicature of Bombay in Criminal Appeal No. 533 ofl 990. 
H. N. Nagamohan Das, Sushil Kumar Jain, Sr. Advs., Shirish K. 
Deshpande, Mohit Gautam, D. M. Nargolkar, Shivaji M. Jadhav, 
Anshuman Animesh, Ms. Saksfii Kaushik, Abhinav Gupta, Nishaiit 
Ramakantrao Katneshwarkar,-Sushil Karanjkar, Dharmendra Kishor, K. 
N. Rai, Advs.for the appearing parties. 
The Judgments of the Court was delivered by 
ADARSH KUMAR GOEL, J. 1. The appellants are aggrieved 
by the judgment and order dated 20'h April, 2007 passed by the High 
Court of Judicature at Bombay in Criminal Appeal No.533 of 1990 
whereby they have been convicted under Sections 147, 149, 302 read 
with Sections 149, 324and 326 of the Indian Penal Code and sentenced 
to undergo imprisonment for life, apart from other lesser sentences which 
are to run concurrently and payment of fine, setting aside their acquittal 
by the trial court. 
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2. 
Originally there were 16 accused namely:-
!) 
Bhagwan Jagannath Markad, 
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2) 
Janardhan Rambhau Tate, 
3) 
Dada Sayyednoor Mulani, 
4) 
Sayyed Sayyadnoor Mulani, 
5) 
Sandi pan Sakhara Koyale, 
6) 
Nivrutti Sakharam Koyale, 
7) 
Krishna Sakharam Koyale, 
8) 
Shailendra Sandi pan Koyale, 
9) 
Chandrakant Shankar Markad, 
I 0) 
Babu Rama Berad, 
I I) 
Balu Naradeo Berad, 
12) 
Manik Rama Berad, 
13) 
Pandurang Babu Arade, 
14) 
Sadashiv Shahu Arade, 
15) 
Kisan Rama Berad, and 
16) 
Appa Shabu Arade. 
3. The trial court
acquitted all the accused. The High Court upheld 
acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16. 
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4. Accused No.2 is reported to have died. Thus, eight appellants
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
are before this Court. They are Al Bhagwan Jagannath Markad; A3 
Dada Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; AS Sandipan 
Sakhara Koyale; A6 Nivrutti Sakharam Koyale; A 7 Krishna Sakharam 
Koyale; AlO Babu Rama Berad and All Batu Naradeo Berad 
respectively. 
5. According to the prosecution, one Bibhishan Vithoba Khadle 
has been murdered and six persons have been injured being Indubai, 
PWI I Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PWIS 
Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath 
Koyale in the attack by the accused. 
6. As per the prosecution version recorded in the FIR lodged by 
PW 10 Satyabhama, her husband PW 11 Dagadu Gopinath Koyale, father-
in-law Gopinath Koyale, deceased Bibhishan Vithoba Khadle, PW18 
Chaturbhuj Khade, PW 15 Bibhis)lan Kshirsagar along with others were 
present in their house on the date of the occurrence on J31h November, 
1988 at 12.00 noon when all the accused came there to attack her husband. 
Accused No.3 Dada Sayyednoor Mulani put the house on fire on account 
of which everyone came out. Accused Nos. I and 2 Bhagwan Jagannath 
Markad and Janardhan Rambhau Tate attacked Dagadu with swords 
on hands, legs and knees. Accused No.3 Dada Sayyednoor had barchi. 
Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5 
Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti 
Sakharam Koyale had barchi. Accused No. 7
Krishna Sakharam Koyale 
had axe. Accused No. I 0 and 11 Babu Rama Berad and Batu Naradeo 
Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks. 
·PW 11 Dagadu fell down on account of beating and became unconscious. 
Accused No.3 Dada Sayyednoor, accused No.4 S~yyed Sayyadnoo.r 
Mulani, accused No.5 Sandipan Sakharam Koyale, accused No.6 Nivrutti 
Sakharam Koyale, accused No.7 Krishna Sakharam Koyale caused 
beating to the deceased Bibhishan Vithoba Khade. Accused Nos. I and 
2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also 
attacJ<ed deceased Bibhishan Vithoba Khadle. The accused then beat 
PW 11 Dagadu Gopinath Koyale and PWI 8 Chaturbhuj Khade with sticks 
and swords. The occurrence was a result of the enmity on account of 
party faction in Panchayat and Co-operative Society elections. 
7. In the statement before the court, apart from repeating above 
version, PW 10 Satyabhama further stated that a bullock cart was arranged 
to carry injured Dagadu and the deceased Bibhishan Vithoba Khade 
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[2016] 5 S.C.R. 
upto the main road and thereafter they were carried in a jeep. On the 
way, the FIR was lodged at 5.30 p.m. and thereafter the injured and the 
deceased were taken to the PHC and then to the civil hospital. PWI 1 
Dagadu remained in the hospital for three to four months and thereafter 
in private hospital for two to three months. 
8. After registering the FIR, investigation was carried out and 
charge-sheet was submitted before the Court. The accused qenied the 
charge. Accused No.5 Sandipan Sakharam, however, stated that he 
was called by Dagadu through deceased Bibhishan Vithoba Khade to 
his place where PW!8 Chaturbhuj Khade and PW12 Kemath Koyale 
were also present. PWl 1 Dagadu told him that he should not contest 
the election. The said accused, however, replied that PWI 1 Dagadu 
had been Sarpanch for I 0-12 years and thus, accused should be allowed 
to become Sarpanch. This led to inter se assault between PW 11 Dagadu 
and deceased Bibhishan Vithoba Khade and the said accused was also 
assaulted by PW 11 Dagadu. 
9. The prosecution led evidence comprising of medical evidence, 
recovery of material objects, eye-witnesses and the investigation. We 
will make reference only to the relevan.t evidence on record. PW4 Dr. 
Shravan Gavhane conducted the post mortem on the body of the 
deceased and found seven injuries. Injury No. I was on the head which 
was found to be fatal. Injuries Nos. 2 to 7 were
said to be with hard and 
blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined 
the injured PW! I Dagadu and found 10 injuries which included eight 
incised wounds, two injuries on Gopinath Mahadev Koyale, one contused 
wound on PWI 8 Chaturbhuj Khade, three injuries on Murlidhar Yeshu 
Kshirsagar. He also found one incised wound on the right forearm of 
accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan 
PWl5. 
I 0. The prosecution relied upon the eye witness account rendered 
by PWIO Satyabhama, PW!! Dagadu, PW15 Bibhishan Kshirsagar, 
PW18 Chaturbhuj Khade, PWl2 Kernath Koyale. PW2 Shivaji Fuge, 
PW3 Yuvraj Koyale, PW7 Bhimrao and PW9 Bhimrao Dhavale are 
witnesses to the recovery in pursuance of the statements under Section 
27 of the Evidence Act. The Chemical Analyser's report was also 
produced about the blood group on some of the recovered articles. 
11. The trial Court rejected the prosecution version inter alia for 
following reasons :
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
461 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
(i) 
Recovery was not admissible as the location of the articles 
recovered was already known; 
(ii) 
There was inordinate delay in sending the case property to 
the Chemical Analyser and possibility of tempering was not 
ruled out; 
(iii) 
There was inconsistency in the evidence of PW s Kernath 
Koyale, Bibhishan Vithoba Khadle and Chaturbhuj Khade 
in the manner of assault and the weapon used; 
(iv) 
The prosecution did not examine Indubai and Gopinath; 
(v) 
Motive was not established as there was no immediate 
election of the Panchayat or of the Cooperative Society; 
(vi) 
There was improvement in the version initially given to the 
police and the version put forward before the Court; and 
(vii) 
All the material witnesses arr. either related or otherwise 
interested and their testimony could not be accepted in 
absence of corroboration in material particulars. 
12. The High Court observed that acquittal by the trial court was 
based on omissions and contradictions which were not material and did 
not affect the veracity of the prosecution case. Thus, the trial Court 
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adopted a "totally perverse approach". It was observed : 
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'"32, It is true that there are contradictions and omissions but 
none of them. according to us, is vital or material. They are 
regarding the particulars. When 718 persons are injured and 
assailants are about 16, then these omissions are bound to
be 
there. They are natural omissions and contradictions and the 
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most important fact that wipes out the effect of these 
contradictions and omissions is that many persons from the 
side of complainant had received injuries, so also accused 
No.5. 
33. This is not a case of exercising the right of self defence of 
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the accused. No such plea was raised before us nor from the 
case of the prosecution any such plea can be permitted to be 
raised directly or indirectly by the accused. The accused are 
aggressors. They have launched attack while persons from 
the complainant's side had assembled to celebrate their Diwali. 
Vasti was set to fire. Bibhishan Khade died in the said attack 
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and many persons from the side of complainant had received 
injuries. The assault was by deadly weapons like sword, barchi, 
knife, gupti and sticks. This was, therefore, not a case of clear 
cut acquittal of all the 16 accused. 
No farther corroboration 
is necessary. investigation is prompt and swift and even if 
other evidence regarding recovery of incriminating articles 
is not considered, the oral evidence and ocular evidence of 
the aforesaid witnesses i.e. P. W. JO, 11, 12, 13, 15 and 18 and 
others discussed by us including those two doctors folly prove 
the prosecution case. The findings of the trial Court are totally 
perverse and therefore this appeal is required to be allowed, 
but to what extent and against which of the accused is the 
question. The close scrutiny of the evidence of eye witnesses 
particularly P. W.10, 11, 15 and 18 shows that P. W. JO has 
implicated accused Nos.1,2,3,5,6,7, JO and 11. P.W.11 has 
implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11, 
accused No.3 set fire to the Vasti. P. W.15 has implicated 
accused Nos.1,2,3,4,5,6, JO and 11. P.W. 18 has implicated 
accused Nos.J,2,3,5,6, 7 and according to him, accused No.3 
set fire to the Vasti. Presence of accused No.5 Sandipan at 
the spot is fully proved, apart from other evidence, because 
of the injuries suffered by him. There are in all 16 accused. 
Considering the aforesaid evidence, this appeal against
ac;quittal has to be allowed in respect of accused 
Nos.J,2,3,4,5,6,7, JO and 11, and their acquittal is required 
to be set aside. So far as accused Nos.8,9,12,13,14,15 and 
16 are concerned, their acquittal is required to be upheld. 
Undoubtedly, the accused Nos.1 to 7 and 10 and 11 had 
"'P formed an unlawful assembly with a common object qf 
launching an assault. The house or vasti of Dagadu was set 
to fire. In the attack Bibhishan Khade died and P. W.11, 15 
and 18 and others received injuries by deadly weapons. 
Therefore, for causing death of Bibhishan Khade the accused 
are required to be held guilty under Section 302 read with 
Section 149 of the Indian Penal Code and for causing severe 
injuries to the aforesaid prosecution witnesses and others, 
they are required to be held guilty under Sections 324 and 
326 rlw 149 of the Indian Penal Code. So far as offence 
under Section 436 of the Indian Penal Code is concerned,
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
463 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
the evidence of the prosecution witnesses is not consistent 
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and, therefore, nobody can be convicted under that section. " 
13. We have heard learned counsel for the appellants on the one 
hand as also learned counsel for the State and the complainant on the 
other and with their assistance, gone through the material on record. 
14. Main contention raised on behalf of the appellants is that the 
judgment of acquittal rendered by the trial Court was certainly a possible 
view on appreciation of evidence and the High Court could not reverse 
the same as there was no perversity. The High Court has not fully 
discussed the evidence nor dealt with the reasons recorded by the trial 
Court for rejecting the prosecution version. There was no explanation 
for the injury suffered by accused No.5. There are omissions and 
contradictions in the version of the prosecution witnesses. In the first 
version given by PW 12, the accused have not been named and instead 
ofrecording the said version as FIR, it was on belated statement of PW 
I 0 which was an improved version that the FIR was registered. The 
-omissions in the statement made to the police amount to contradictions 
as per explanation to Section 162 Cr.P.C. Thus, the evidence of eye 
witnesses PWs I 0, 11, 12, 15 and 18 has been rightly rejected by the trial 
court and could not be relied upon by the High Court. Since there was 
enmity
between the parties, there was possibility of exaggeration and 
false implication and it was not safe to convict the appellants. It was 
also submitted that since the incident was 28 years old, some of the 
appellants have become very old and ought not to be convicted-at this 
stage. Reliance has been placed on the judgments of this Court in Padam 
Singh versus State of U.P.1, Deval/ta Venkatasw"my versus Public 
Prosecutor, High Court of A.P.1, Narendm Singh versus State of 
M.P. 3, Prasanna Das versus State of Orissa', Majja/ versus State of 
Haryana5, Lalita Kumari versus Govt. of U.P. 6, and Baby alias 
Sebastian versus Central Inspector of Police7• 
15. On the other hand, learned counsel for the State and the 
complainant, supported the judgment of the High Court and pointed out 
1 (2000) 1 sec 62 t 
2 (2003) 1 o sec 100 
3 (2004) IOSCC 699 • 
4(2004) 13 sec 30 
'(2013) 6 sec 798 
'(2014)2sec1 
7 (2016) 7 Scale 444 
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that the reasons for acquittal by the trial court were perverse and the 
High Court has duly dealt with the said reasons and found them to be 
perverse. There is consistent evidence of injured eye witnesses which 
could not be altogether brushed aside. Contradictions and omissions 
which are not vital or material are bound to be there in every case. The 
B 
same did not affect the credibility of the main version that the accused 
. caused the death of the deceased and injuries to six persons on the 
complainant side. The accused formed unlawful assembly and action of 
even one accused in prosecution of common object of the unlawful 
assembly or which was known to likely to be so committed was action 
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ofall the accused in law. It was not necessary to prove individual role of 
different accused. The information by PW 12 on telephone was cryptic 
and could not be treated as FIR. Therein though name of accused No.5 
was mentioned and it was further stated that he was accompanied by 
others also, other details were not mentioned. This was not at par with 
the statement to be recorded by the officer in charge of the Police Station 
under Section 154 CrPC which can be treated as FIR. Thus, the 
telephonic message could not be treated as FIR. The statement of PW 
I 0 made in the Police Station has rightly been treated as FIR. The said 
statement was prompt and could not be treated as an improved version. 
The
statement was corroborated by sworn testimony of the author of 
the FIR before the Court which has been corroborated in all material 
particulars by fourother injured witnesses. Thus, the evidence on record 
fully warranted conviction of the appellants and no interference was 
called for by this Court. Reliance has been placed on the judgments of 
this Court in Damodar versus State of Rajastlran8, Mano Dutt & 
Anr. Versus State of Uttar Pradesh 9, Sanjeev versus State of 
Haryana10, A. Slrnnkar versus State of Karnataka 11, State of 
Karnataka versus Suvarnamma & Anr. 11, Bava Hajee Hamsa 
versus State of Kerala 13, Patai Alias Krishna Kumar versus State 
U.P. 14, Ravis/1war Manjlti versus State of Jharkhand15, T.T. Antony 
versus State of Kerala16• 
• (2004) 12 sec 336 
• <2012) 4 sec 79 
'" <2015) 4 sec 387 
II (2011) 6 SSC 279 
12 (2015) 1sec323 
"(1974) 4 sec 479 
"(20 IO) 4 sec 429 
"(2008) 16 sec 561 
16 (2001)6SCC 181
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
16. We have given due consideration to the rival submissions. 
The question for consideration is whether the High Court was justified 
in reversing the acquittal of the appellants on the basis of evidence 
available on record. 
17. Before considering this aspect with reference to the evidence 
on record, we may advert to the settled principles of law dealing with 
the issues arising in the present case. The approach to be adopted by 
the court generally in appreciating the evidence in a criminal case as 
also the approach of the appellate court is discussed in several decisions 
of this Court, some of which have been cited by learned counsel for the 
parties. 
18. It is accepted principle of criminal jurisprudence that the burden 
of proof is always on the prosecution and the accused is presumed to be 
innocent unless proved guilty. The prosecution has to prove its case 
beyond reasonable doubt and the accused is entitled to the benefit of the 
reasonable doubt. The reasonable doubt is one which occurs to a prudent 
and reasonable man. Section 3 of the Evidence Act refers to two 
conditions -(i) when a person feels absolutely certain of a fact-"believe 
it to exist" and (ii) when he is not absolutely certain and thinks it so 
extremely probable that a prudent man would, under the circumstances, 
act on the assumption of its existence. The doubt which the law 
contemplates is not of a confused
mind but efprudent man who is 
assumed to possess the capacity to "separate the chaff from the grain". 
The degree of proof need not reach certainty but must carry a high · 
degree ofprobability17• 
19. While.appreciating the evidence of a witness, the court has to 
assess whether read as a whole, it is truthful. In doing so, the court has 
to keep in mind the deficiencies, drawbacks and infirmittes to find out 
whether such discrepancies shake the truthfulness. Some discrepancies 
not touching the core of the case are not enough to reject the evidence 
as a whole. No true witness can escape from giving some discrepant 
details. Only when discrepancies are so incompatible as to affect'the 
credibility of the version of a witness, the court may reject the evidence. 
Section 155 of the Evidence Act enables the doubt to impeach the 
credibility of the witness by proof of former inconsistent statement. 
Section 145 of the Evidence Act lays down the procedure for contradicting 
a witness by drawing his attention to the part of the previous statement 
"Vijayee Singh vs. State ofU.P.- (1990) 3 SCC 190, Parasl8, 28-30 
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which is to be used for contradiction. The former statement should 
have the effect of discrediting the present statement but merely because 
the latter statement is at variance to the former to some extent, it is not 
enough to be treated as a contradiction. It is not every discrepancy which 
affects creditworthiness and trustworthiness of a witness. There may 
at times be exaggeration or embellishment not affecting credibility. The 
court has to sift the chaff from the grain and find out the truth. A 
'statement may be partly ·rejected or partly accepted 18 • Want of 
independent witnesses or unusual behavior of witnesses of a crime is 
not enough to reject evidence. A witness being a close relative is not 
enough to reject his testimony ifit is otherwise credible. A relation may 
not conceal the actual culprit. The evidence may be closely scrutinized 
to assess whether an innocent person is falsely implicated. Mechanical 
rejection of evidence even of a 'partisan' or 'interested' witness may 
lead to failure of justice. It is well known that principle "falsus in uno, 
falsus in omnibus" has no general acceptability19• On the same evidence, 
some accused persons may be acquitted while others may be convicted, 
depending upon the nature of the offence. The court can differentiate 
the accused who is acquitted from those who are convicted. A witness 
may be untruthful in some aspects but the other part of the
evidence 
may be worthy of acceptance. Discrepancies may arise due to error of 
observations, loss of memory due to lapse of time, mental disposition 
such as shock at the time of occurrence and as such the normal 
discrepancy does not affect the credibility of a witness. 
20. Exaggerated to the rule of benefit of doubt can result in 
miscarriage of justice. Letting the guilty escape is not doingjustice. A 
Judge presides over the trial not only to ensure that no innocent is punished 
but also to see that guilty does not escape.20 
21. An offence committed in prosecution of common object of an 
unlawful assembly by one person renders members ofunlawful assembly 
sharing the common object vicariously liable forthe offence. The common 
object has to be ascertained from the acts and language of the members 
of the assembly and all the surrounding circumstances. It can be gathered 
from the course of conduct of the members. It is to be assessed keeping 
in view the nature of the assembly, arms carried by the members and 
18 Leela Ram vs. State of Haryana ( 1999) 9 SCC 525, paras 9 - 13 
"Gangadhar Behera vs. State ofOrissa (2002) 8 SCC 381-para15 
H 
''' Gangadhar Behera (supra), para 17
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
467 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
the behavior of the members at or near the scene ofincident. Sharing of 
common object is a mental attitude which is to be gathered from the act 
of a person and result thereof. No hard and fast rule can be laid down 
as to when common object can be inferred. When a crowd of assailants 
are members of an unlawful assembly, it may not be possible for witnesses 
to accurately describe the part played by each one of the assailants. It 
may not be necessary that all members take part in the actual assault~
1
• 
In Gangadliar Beliera (supra), this Court observed : 
"25. The other plea that definite roles have not been ascribed 
to the accused and therefore Section 149 is not applicable, is 
untenable. A four-Judge Bench of this Court in Masalti case 
[AIR 1965 SC 202} observed as follows: 
"15. Then it is urged that the evidence given by the witnesses 
conforms to the same uniform pattern and since no specific 
part is assigned to all the assailants, that evidence should 
A 
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not have been accepted. This criticism again is not well 
founded. Where a crowd of assailants who are members of D 
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 
E 
of them have to take part in the actual assault. Jn the present 
case, for instance, several weapons were carried by different 
members of the unlawful assembly, but it appears that the 
guns were used and that was enough to kill 5 persons. Jn 
such a case, it would be unreasonable to contend that because 
the other weapons carried by the members of the unlawful 
assembly were not used, the story in regard to the said weapons 
itself should be rejected. Appreciation of evidence in such a 
complex case is no doubt a difficult task; but criminal courts 
have to do their best in dealing with such cases and it is their 
duty to sift the evidence carefully and decide which part of it 
is true and which is not. " 
22. We have referred to the above settled principles as the trial 
court has adopted perverse approach in rejecting the entire evidence 
21 Gangadhar Behera (supra), paras 22-24 
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comprising of injured eye witnesses when one person has been killed 
and six others have been injured. The trial court ignored the above 
principles by mechanically rejecting the evidence ofall the witnesses by 
finding one or the other contradiction. The occurrence has taken place 
in broad day light. One of the accused himself mentioned about the 
enmity on account of the panchayat election. The said accused himself 
is injured which proves his presence at the scene of the occurrence. 
This version further shows the presence of deceased and the injured. 
But his version fails to explain as to why the deceased would have been 
killed by PW! I when the deceased was the messenger of PW! I himself. 
Except for some contradictions, the version of eye witnesses PW s I 0, .· 
11, 15, 12 and 18 is consistent. There is no reason to reject the said 
version. Of course, the court has to be cautious in appreciating evidence 
and rule out exaggeration. 
23. We may also note that version of AS is not probable and mere 
fact that injury on him is not explained is not enough to reject the 
prosecution version. In such a case, the Court is to examine whether 
evidence is trustworthy. This aspect has been repeatedly examined by 
this Court and settled law is that non explanation of injuries on accused 
is an important circumstance which requires the court to satisfy itself 
that true version is not suppressed and whether
defence version is 
probable~
2
· 23· 
2~. This by itself is not enough to reject the prosecution 
case. 
24. To demonstrate that the approach of the trial court is outrightly 
perverse, some of the observations are put in : 
" But in general terms she has stated that accused came with 
weapons. Similarly it is admitted by her during the cross-
examination that she has not stated assault by particular 
accused on the person of Bibhishan Khade. But she has stated 
in general terms that Bibhishan was assaulted by the accused. 
Moreover it is to be noted that she has admitted that Dagadu 
and Bibhishan were assaulted by said weapons like cutting a 
wood by an axe, sword and barchi. But there is 110 piercing 
wound or cut injury on the person of deceased Bibhishan as 
well as Dagadu. 
22 Vijayee Singh (supra), para 9 
23(200 I) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing 
,. (2012) 4 sec 79-Mano Dutt VS. State of U.P.
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
Moreover it is in her complaint that she had been to the vasti 
of Murlidhar and Bibhishan Kshirsagar to hand over the 
break fast to Dagadu. But the evidence of PWs and Dagadu 
and other eye witnesses disclose that they all had been to the 
house of Murlidhar Kshirsagar for Diwali snacks and there 
Dagadu invited for meals in the noon time. Hence, all the 
eye-witnesses mentioned above had been to the vasti of 
Dagadu. 
But P. W. Dagadu, Kernath, P. W. Bibhishan 
Kshirsagar and P. W. Chaturbhuj disclose that they were called 
for the Diwali snacks and not for meals in the house of 
Dagadu. It is to noted that if Dagadu was invited for Diwali 
snacks in the house of Murlidhar kshirsagar then there was 
no necessity to take breakfast for Dagadu to the house of 
Murlidhar Kshirsagar. Considering all the aspects the 
evidence of the complaint cannot be accepted. " 
25. Similar is the appreciation by the trial court of other witnesses. 
Since rejection of eye witness account is uncalled for, other reasons 
given by trial court are not sufficient to reject the prosecution case. 
Even if recoveries or Chemical Analyzer's report are disregardedly the 
same have only corroborative value, prosecution case is established by 
credible eye witness account. Mere fact that some of the witnesses 
have not been examined is also of no consequence when credible evidence 
to prove the case has been produced. We
thus, find that the High C9urt 
rightly reversed the trial Court judgment. 
26. One of the submission oflearned counsel for the appellants is 
that telephonic message by PW 12 recorded at the police station should 
have been treated as FIR. We have been taken through the said message 
which is to the effect that AS and other accused assaulted the complainant 
party. Learned counsel relied upon the observation in Lulita Kun1<1ri 
(supra) to the effect that a GD Entry can also be treated as FIR in an 
appropriate case. From the said observation, it cannot be laid down that 
every GD Entry or every cryptic infonnation must be treated as FIR. In 
Anand Mohan versus State of Bihai25 while referring to Section 154 
Cr.P.C., this Court observed that every cryptic information, even if not 
signed by the person giving the information, cannot be treated as FIR. 
The infonnation should sufficiently disclose the nature of the offence 
and the manner in which the offence was committed. It was observed : 
" (2012i 7 sec 22s 
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"50. In Sk. Ishaque v. State of Bihar [( 1995) 3 SCC 392] Gula bi 
Paswan gave a cryptic information at the police station to 
the effect that there was a commotion at the village as firing 
and brickbatting was going on and this Court held that this 
cryptic information did not e~en disclose the commission of a 
cognizable offence nor did it disclose who were the assailants 
and such a cryptic statement of Gulabi Paswan cannot be 
treated to be an FIR within the meaning of Section I 54 CrPC: 
51. Similarly, in Binay Kumar Singh v. State of Bihar [(1997) 
I SCC 283) information was furnished to the police in Ext. 
1013 by Rabindra Bhagat that the sons of late Ram Niranjan 
Sharma along with large number of persons in his village 
had set fire to the houses and piles of straws and had also 
resorted to firing. This Court held that Ext. 1013 is evidently a 
cryptic information and is hardly sufficient to discern the 
co111mission of any cognizable offence therefro111." 
27. Similar view has been taken by this Com1 in Damodar (supra), 
T. T. Antony (supra), Patai Alias Krishna Kumar (supra) and 
Ravislnvar Manjhi (supra). 
28. Learned counsel forthe appellants also criticized the judgment 
of the High Court by submitting that the principles laid down by this 
Court in Padam Singh (supra), Devatlw Venkataswamy (supra), 
Narendra Singh (supra), Prasanna Das (supra), Majja/ (supra), 
Lalita Kumari (supra), and
Baby (supra) for exercise of appellate 
jurisdiction have not been followed. The appellate court should deal 
with reasons for acquittal and interfere only ifacquittal is perverse. There 
is no doubt about the proposition that the appellate court has to arrive at 
an independent conclusion about the credibility of the evidence and to 
re-appreciate the evidence to arrive at a just conclusion. If the appellate 
court is to reverse the judgment of the trial court, the reasoning of the 
trial court has to be adverted to and reversal of acquittal is permissible 
only if the view of the trial court is not only erroneous but also 
unreasonable and perverse. At the same time, the appellate court has 
full power to review the evidence and to reach at its own conclusion. 
The appellate court can set aside the acquittal if the acquittal is not 
justified. Of course, the appellate court has to consider the fact that the 
trial court has the benefit of seeing the witnesses in the witness box and 
the presumption of innocence is not weakened by the acquittal. lftwo
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 
MAHARASHTRA [ADARSH KUMAR GOEL, J.] 
reasonable conclusions can be reached, the appellate court should not 
disturb the finding of the trial court. In the present case, the High Court 
has followed the above principles. 
29. Jn Bava Hajee Hamsa (supra) while approving the reversal 
of acquittal by the High Court, it was held that erroneous approach of 
the trial Court led to misdirection in appraising the evidence and the 
High Court was justified in rejecting the approach of the trial court and 
in analyzing the evidence in its own way. This Court observed : 
"30. We agree with the High Court that the very "scheme of 
approach" adopted by the trial Judge was faulty and 
misleading. It led to aberration and misdirection in appraising 
evidence, and vitiated his conclusions. The learned trial Judge 
started correctly when on a broad look of the evidence, he 
found the evidence of PWs J, 8 and 9 prima facie acceptable. 
But after the second lap of discussion, he became sceptical; 
and reversed his mind at the end of the third round of 
circumgyratory discussion. In such cases where large number 
of persons are involved and in the commotion some persons 
cause injuries to others and the evidence is of a par/ is an 
character, it is often safer for the Judge of fact to be guided 
by the compass of probabilities along the rock-ribbed 
contours of the case converging on the heart of the matter. 
Once the court goes astray from the basic
features of the 
case, it is apt to lose itself in the labyrinths of immaterial 
details, desultory discussion and vacillation arising from 
unfounded suspicions. This is exactly what has happened in 
the instant case. Despite the pains taken and the conscentious 
effort put in to write an elaborate judgment, the trial Judge 
had, as it were, missed the wood for the trees. The learned 
Judges of the High Court were, therefore, right in discarding 
altogether the basically wrong "scheme of approach" adopted 
by the trial court, and in analysing the evidence in their own 
way." 
30. As already observed, the discrepancies of trivial nature could 
not be the basis of rejecting the evidence of injured eye witnesses nor 
non-examination of some of the witnesses be a ground to reject the 
prosecution case when injured eye witnesses were examined. 
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31. We may also refer to the judgment of this Court in Musa/ti 
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[2016] 5 S.C.R. 
versus State of U.P.~
6 to the effect thatthe evidence of interested partisan 
witnesses though required to be carefully weighed, the same could not 
be discredited mechanically. When a crowd of unlawful assembly 
commits an offence, it is often not possible to accurately describe the 
part played by each of the assailants. Though the appreciation of evidence 
in such cases may be a difficult task, the court has to perform its duty of 
sifting the evidence carefully. 
32. Applying the above principles to the present case, it is clear 
that all the five eye witnesses have named A I to A 7. Other accused 
have not been named by PWI I and PWI 8. By way ofabundant caution, 
we give benefit of doubt to A I 0 and A 11 for the reason that they have 
not been named by PW 11 and PW 18 and also for the reason that PW I 0 
has attributed specific role only to A I to A 7. But as far as A I to A 7 are 
concerned (A2 has already died) all the five witnesses have consistently 
named them. A I to A 7 have been assigned specific role in assaulting 
the deceased. Their conviction and sentence under Section 302/149 of 
the !PC has to be upheld. 
33. For the above reasons, this appeal is partly allowed to the 
extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo 
Berad) are given benefit of doubt and are acquitted. They be released 
from custody, ifnot required in any other case. Appeal ofother appellants 
is
dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale 
and Krishna Sakharam Koyale) will continue to remain on bail for one 
month and if they make an application for remission of the remaining 
sentence on the ground of advanced age within one month, they will 
continue to remain on bail thereafter ti II the decision of the said application 
by the appropriate authority. If their application for remission is not 
accepted, they will surrender to serve out the remaining sentence. 
Devika Gujral 
·Appeal partly allowed. 
'(1964)8SCR 133