[2016] 5 S.C.R. 452

BHAGWAN JAGANNATH MARKAD & ORS.

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 Al 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 452

BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF 453

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

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 455

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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,

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-

AD]

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 457

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.

From the Judgment and Order dated 20.04.2007 of the High Court H

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.

D 2.

Originally there were 16 accused namely:-

!) Bhagwan Jagannath Markad,

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.

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, fatherin-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 Syyed 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

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

adopted a "totally perverse approach". It was observed :

E ,

'"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 f 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 G 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 H

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,

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MAHARASHTRA [ADARSH KUMAR GOEL, J.]

the evidence of the prosecution witnesses is not consistent A 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

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

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

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

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

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 crossexamination 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

"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 een 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.

31. We may also refer to the judgment of this Court in Musa/ti H

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