Full Judgment Text
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PETITIONER:
BUDHWA ALIAS RAMCHARAN AND ORS
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT05/10/1990
BENCH:
FATHIMA BEEVI, M. (J)
BENCH:
FATHIMA BEEVI, M. (J)
KULDIP SINGH (J)
CITATION:
1991 AIR 4 1990 SCR Supl. (2) 101
1991 SCC Supl. (1) 9 JT 1990 (4) 64
1990 SCALE (2)689
ACT:
Indian Penal Code, 1860: ss. 147, 149 & 302: Conviction
under--Melee--Particularization of blows given
impossible--Nature of injuries received by victim impor-
tant--Need for observance of utmost care and caution in
sifting evidence.
HEADNOTE:
The appellants were convicted for offence under Ss. 147,
149 and 302 IPC for murdering a villager. The prosecution
case was that motivated by group rivalry the accused persons
numbering over fifteen attacked the deceased with tabbals
and lathis while he accompanied by his mother, PW 1, and
sister, PW 5, was on his way to a nearby village to supply
milk. As a result of the injuries sustained the deceased
died on the spot. When PW 1 tried to intervene, site too was
assaulted. She lodged the FIR thereafter the same day
against the appellants others.
At the trial PW 4 and PW 6 deposed to having seen appel-
lants Baran, Bhagau, Karan and Parsadi armed with lathis and
tabbals hurriedly going towards the place of occurrence
ahead of the deceased at a short distance. The medical
evidence disclosed that the deceased had sustained in all
seven injuries, two incised wounds on the scalp, two contu-
sions and three bruises.
The trial court found that the appellants were members
of an unlawful assembly and death of the deceased was caused
by them in prosecution of a common object. The High Court on
appeal agreed with the findings of the trial court.
In the appeal by special leave, it was contended for the
appellants that the courts below had failed to exercise the
necessary care and caution that was required in scrutinising
the evidence of the two eye witnesses who were close rela-
tions of the deceased and deeply interested in involving the
appellants on account of enmity, and that in the absence of
independent corroboration the conviction based on the testi-
mony of these witnesses was unwarranted.
Disposing of the appeal, the Court,
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HELD: 1.1 It is an accepted proposition that in the case
of group rivalries and enmities, there is a general tendency
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to involve as many persons of the opposite faction as possi-
ble by merely naming them as having participated in the
assault. The court, therefore, has in all such cases to sift
the evidence with utmost care and caution and convict only
those persons against whom the prosecution witnesses can be
safely relied upon without raising any element of doubt.
[107C-D]
Baldev Singh v. State of Bihar, AIR 1972 SC 464; Raghu-
bir Singh v. State of U.P., AIR 1971 SC 2156 and Muthu
Naicker v. State of Tamil Nadu, [1978] 4 SCC 385, referred
to.
1.2 The conviction of the appellants was principally
based on the evidence of PW 1 and PW 5, the mother and
sister of the deceased. Though their evidence was not to be
discarded as interested, necessary caution should have been
observed in accepting the same in upholding the conviction
of all the appellants. [104H; 105A]
2.1 In a melee, as in the instant case, where several
people are giving blows at one and the same time it will be
impossible to particularize the blows. If any witness at-
tempts to do it, his veracity is doubtful. But, it is sim-
pler to make an omnibus statement that all the accused
assaulted with their weapons because that obviates close
crossexamination. Therefore, the nature of injuries sus-
tained by the victim assumes importance. [105H; 106A]
2.2 PWs 1 and 5 stated that the accused persons sur-
rounded the victim and each one of them assaulted him with
the weapon they had. PW 1 stated that some of the assailants
had given more than one blow, They did not state who caused
the head injuries. They have not attempted to attribute any
one of the injuries to any particular assailant. The evi-
dence was in general terms. If a group of more than fifteen
persons had encircled the victim and simultaneously attacked
him with tabbals and lathis without any resistance or any
intervention, there would have been certainly corresponding
injuries of the concerted attack on the person of the vic-
tim. The medical evidence shows that besides the two incised
wounds on the scalp which proved fatal the deceased had only
five minor injuries on his person. [105E--G]
2.3 When the several blows with lathis and tabbals
could produce only seven injuries on the person of the
deceased the necessary inference would be that not more than
seven persons might have participated in delivering the
blows. therefore, the presence of more than seven
103
persons is doubtful. This aspect of the case has not been
given due weight by the High Court while appreciating the
evidence. [105H; 106A-C]
3.1 The manner in which the incident happened also makes
it clear that the assailants acted in prosecution of the
common object to cause the death of the victim. There is no
doubt that more than five persons had actually participated
in the crime. There is clear evidence regarding the identity
of only four persons. Appellants Baran, Karan, Bhagau and
Parsadi had been located by PW 4 and PW 6, two independent
witnesses, in the locality just before the incident. This
evidence lends assurance to the testimony of PW 1 and PW 5
regarding their participation in the crime. [107B-C ]
3.2 The conviction of these four persons has, therefore,
been rightly sustained. Regarding the rest of the appellants
there is scope of genuine doubt. Their conviction and sen-
tence are accordingly set aside. [107D]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 168
of 1979.
From the Judgment and Order dated 29.9.1978 of the
Madhya Pradesh High Court in Criminal Appeal No. 1094 of
1976.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K. Satija
for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by
FATHIMA BEEVI, J. This appeal by special leave is di-
rected against the judgment of the High Court of Madhya
Pradesh confirming the conviction of the appellants for the
offences under sections 147 and 302/149, I.P.C., and sen-
tence to undergo imprisonment for life. The appellants and
four persons acquitted by the trial court were tried for the
murder of one Hanuwa. The prosecution alleged that motivated
by group rivalry the accused persons attacked Hanuwa with
tabbals and lathis on July 11, 1975 at about 8..30 A.M. The
occurrence happened on the track across the field leading to
village Mungeli. Hanuwa accompanied by his mother Baiyanbai
and sister Birjhbai was on his way to Mungeli to supply
milk. When he reached Ghotora near Nayagaon village. the
accused persons advanced towards him and mounted attack. As
a result of the injuries sustained, Hanuwa died on the
104
spot. When Baiyanbai tried to intervene, she too was as-
saulted, Baiyanbai lodged the first information report at
12.00 noon the same day against these appellants and others
who were finally chargesheeted.
Baiyanbai (PW- 1) and Birjhbai (PW-5) were the two eye-
witnesses who unfolded the prosecution case. Mangal (PW-4)
and Dilashbai (PW-6) deposed to having seen appellants
Baran, Bhagau, Karan and Parsadi armed with lathis and
tabbals hurriedly going towards the place of occurrence
ahead of the deceased at a short distance. The medical
evidence disclosed that Hanuwa sustained in all seven in-
juries: two incised wound on the scalp resulting in multiple
fracture of the parietal bone and tear of right lobe of the
brain: two confusions and three bruises on the forearm,
right upper arm scapular region and buttock. Injuries sus-
tained by PW- 1 was incised wound in between right thumb and
index finger which could be caused with any sharp object..
The plea of the accused was that they were falsely implicat-
ed due to enmity. The learned Sessions Judge accepted the
prosecution evidence and convicted these appellants finding
that they were members of an unlawful assembly and death of
Hanuwa was caused by the members in prosecution of the
common object of the assembly. Arjun, Bhikam, Nanku and
Parethan were given the benefit of doubt in view of the
discrepancies in mentioning their names and they were ac-
quitted. The High Court on appeal agreed with the findings
of the trial court and confirmed the conviction and sen-
tence.
The conviction of the appellants is assailed before us
mainly on the ground that the two eye-witnesses in the case
are close relations of the deceased deeply interested in
involving the appellants on account of the enmity and their
evidence was required to be scrutinised with great care and
caution and the trial court as well as the High Court failed
to exercise the necessary caution with the result conviction
has been wrongly recorded leading to miscarriage of justice.
According to the appellants’ learned counsel, the evidence
of the eye-witnesses read along with the medical evidence
renders the prosecution case highly improbable and doubtful
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about the presence and participation of the appellants in
the assault. It is submitted that the tendency to involve
innocent persons by merely mentioning their names is dis-
cernible and in the absence of independent corroboration the
conviction based on the testimony of PW- 1 and PW-5 is
unwarranted.
We have considered these arguments in the light of the
material evidence analysed and discussed by the courts
below. We find that the conviction of the appellants is
principally based on the evidence of
105
PW- 1 and PW-5, the mother and sister of the deceased.
Though their evidence is not to be discarded as interested,
the necessary caution has to be observed in accepting the
evidence of these witnesses. It is an accepted proposition
that in the case of group rivalries and enmities. there is a
general tendency to rope in as many persons as possible as
having participated in the assault. "The courts have, there-
fore, to be very careful and if after a close scrutiny of
the evidence, the reasonable doubt arises with regard to the
participation of any of those who have been roped in, the
court would be obliged to give the benefit of doubt to
them", vide Baldev Singh v. State of Bihar, AIR 1972 SC 464.
This Court has in several decisions pointed out that "where
there is enmity between the two factions then there is a
tendency on the part of the aggrieved victim to give an
exaggerated version and to rope in even innocent members of
the opposite faction in a criminal case and that therefore
the Court has in all such cases to sift the evidence with
care and convict only those persons against whom the prose-
cution witnesses can be safely relied upon without raising
any element of doubt", vide Raghubir Singh v. State of U.P.,
AIR 1971 SC 2 156. On a perusal of the judgment of the High
Court, we find that the necessary caution had not been
observed in the approach to the evidence.
The occurrence happened on a narrow track. The deceased
Hanuwa was going ahead of his mother and his sister was
still behind. The witnesses noticed the assailants only when
they approached the deceased. The evidence is not clear that
the assailants were seen by Baiyanbai or Birjhbai hiding
behind the bushes and emerging from the hiding place. Th
witnesses stated that the accused persons surrounded the
victim and each one of them assaulted him with the weapon
they had. PW-1 stated that some of the assailants had given
more than one blow and Parsadi assaulted her when she tried
to intervene. If a group of more than 15 persons encircled
the victim and simultaneously attacked him with tabbals and
lathis without any resistance or any intervention, there
would have been certainly corresponding injuries of the
concerted attack on the person of the victim. We have re-
ferred to the medical evidence which shows that besides the
two incised wounds on the scalp which proved fatal Hanuwa
had only five minor injuries on his person. PWs 1 and 5 did
not state who caused the head injuries. They have not at-
tempted to attribute any one of the injuries to any particu-
lar assailant. The evidence is in general terms. Even in the
first information report, PW- 1 only stated that the persons
named therein attacked Hanuwa with tabbals and lathis and
caused his death. In a melee where several people are giving
blows at one and the same time it will be impossible to
particularize the blows. If any wit-
106
ness attempts to do it, his veracity is doubtful. But it
cannot be forgotten that it is simpler to make an omnibus
statement that all the accused assaulted with their weapons
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because that obviates close cross-examination. Therefore,
the nature of the injuries sustained by the victim assumes
importance. The nature of the injury sustained in spite of
the assertion of the concerted attack with lathis and tab-
bals by several assailants numbering over 15 renders the
evidence doubtful about the participation of such a large
number of persons. When the several blows with lathis and
tabbals could produce only seven injuries on the person of
the deceased, Hanuwa, the necessary inference is that not
more than seven persons might have participated in deliver-
ing the blows. Therefore, the presence of more than seven
persons is doubtful. This aspect of the case has not been
given due weight by the High Court while appreciating the
evidence in the case.
"Where an occurrence takes place involving rival fac-
tions it is but inevitable that the evidence would be of a
partisan nature. In such a situation to reject the entire
evidence on the sole ground that it is interested is to shut
one’s eyes to the realities of the rural life in our coun-
try. It has to be borne in mind that in such situation easy
tendency to involve as many persons of the opposite faction
as possible by merely naming them as having been seen in the
melee is a tendency which is more often discernible and has
to be eschewed and, therefore, the evidence has to be exam-
ined with utmost care and caution and the Court has to adopt
a workable test for being assured about the role attributed
to every accused" vide Muthu Naicker v. State of Tamil Nadu,
[1978] 4 SCC 385.
We have therefore to see whether the testimony of PW-I
and PW-5 as against all or any of the appellants before us
finds corroboration with the material on record. The trial
court had acquitted four persons for the reason that their
names had been left out in the narration at some stage or
the other. PW- 1 before giving the first information had
deliberations with her son PW-3. The finding of the trial
court is that in narrating the incidence to him, PW- 1 had
omitted to mention the names of Arjun and Bhikam. Before
Court, PW-1 did not implicate Nanku. The name of Parethan
does not find a place in the F.I.R. It is for these reasons
the trial court acquitted them. On such acquittal, it is
clear that there had been conscious effort to rope in inno-
cent persons by merely naming them. Therefore, the apparent
conflict between the medical evidence and the eye-witness’s
account could not have been overlooked. We are of the opin-
ion that the High Court has not observed the necessary
caution in accepting the evidence in
107
general terms to uphold the conviction of all the appel-
lants.
We are thus constrained to consider whether there is any
evidence from independent sources to lend assurance to the
version of PWs I and 5 regarding the participation of any of
these appellants. We have indicated that the presence of at
least seven persons at the scene is probable having regard
to the nature of the injuries and the manner of the attack.
It is also clear from the manner in which the incident
happened that the assailants acted in prosecution of the
common object to cause the death of the victim. We have no
doubt in our mind that more than five persons have actually
participated in the crime. We have clear evidence regarding
the identity of only four persons. Appellants Baran, Karan,
Bhagau and Parsadi had been located by PW-4 and PW-6, two
independent witnesses, in the locality just before the
incident. This evidence lends assurance to the testimony of
PW- I and PW-5 regarding their participation in the crime.
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We are of the view that the conviction of these four persons
i.e. Baran, Karan, Bhagau and Parsadi has been rightly
sustained. However, regarding the rest of the appellants,
there is scope of genuine doubt and we are obliged to give
the benefit of doubt to them.
We accordingly set aside the conviction and sentence of
the appellants. namely, Budhwa, Chandu. Kushwa, Bhuwan,
Rajaram. Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram
and they are acquitted of the charges. Their bail bonds
stand cancelled.
The appeal is dismissed so far as Parsadi, Baran, Bhagau
and Karan are concerned. These appellants shall surrender to
suffer the unexpired portion of the sentence.
The appeal is disposed of as above.
P.S.S. Appeal dis-
posed of.
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