State Of M.P. vs Dwarka Prasad

NEUTRAL CITATION NO. 2026:MPHC-GWL:33856 1
Cr.A. No. 92/2006

IN THE HIGH COURT OF MADHYA PRADESH
A T G W A L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA

nd
ON THE 2 OF NOVEMBER, 2026

CRIMINAL APPEAL No. 92 of 2006
CNR No.: MPHC030016972006
STATE OF M.P.
Versus
DWARKA PRASAD AND OTHERS

Appearance:
Shri C.P.Singh, Public Prosecutor for appellant/State.
Shri Ajay Singh Rathore, Advocate for respondents.

JUDGMENT
Per : Justice Gurpal Singh Ahluwalia
This State Appeal, under section 378 of Cr.P.C., has been filed
against the acquittal of respondent Nos. 1,2 and 4 namely Dwarka Prasad,
Radharaman and Sant Kumar by common judgment dated 22/6/2005
passed by I Additional Sessions Judge, Shivpuri in S.T. No. 175/2001 and
S.T. No.207/2001 from offences under sections 148 and 302/149 of IPC.
This State Appeal was also filed against acquittal of Bharat who has
expired during the pendency of appeal, therefore, by order dated
27/6/2011, his name has been deleted from the array of cause title and this
State appeal, so far as it relates to acquittal of Bharat has been dismissed
as abated.
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2. For the purposes of clarity, it is pointed out that Lakhan,
Chokharmal, Vijay, Devendra, Mukesh, Kali alias Kalicharan, and
Nathuram were tried in S.T. No. 177/2000, whereas the chargesheet in
respect of other 10 accused persons was not filed on the ground of
pendency of CID investigation. Later on, a supplementary chargesheet
was filed against Narhari Prasad Sharma, Dwaraka Prasad, Awadh, Radha
Raman, Bharat, Giltu alias Ajay, Sant Kumar, and Rishi Upadhyay. These
persons were tried separately, and the witnesses were examined afresh.
Therefore, S.T. No. 177/2000 was held in respect of co-accused Lakhan,
Chokharmal, Vijay, Devendra, Mukesh, Kali alias Kalicharan, and
Nathuram, which was also decided by a separate judgment and sentence
dated 22/6/2005. During the pendency of that trial, Lakhan expired,
whereas Chokharmal, Vijay, Mukesh, Kali alias Kalicharan, and
Nathuram were acquitted. However, the acquittal of these persons was
never challenged.
Co-accused Devendra was convicted for offence under sections 148
and 302/ 149 of IPC. Devendra has filed separate appeal, which has been
registered as Criminal Appeal No. 398/ 2005. In view of judgment passed
by Supreme Court in the case of A.T. Mydeen and Another Vs. The
Assistant Commissioner, Customs Department decided on 29.10.2021
in Criminal Appeal No.1306/2021 , said appeal shall be decided by a
separate judgment, although that appeal has also been taken up for
analogous hearing.
Narhari Prasad Sharma was tried in S.T. No. 29/2002. Dwarka
Prasad was tried in S.T. No. 175/2001, whereas Awadh, Radharaman,
Bharat, Giltu alias Ajay, Sant Kumar and Rishi Upadhyay were tried in
S.T. No. 207/2001. The evidences were recorded jointly in the presence of
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all the accused persons. By the impugned judgment and sentence dated
22/06/2005, I Additional Session Judge, Shivpuri convicted Narhari
Prasad Sharma in S.T. No. 29/2002 and convicted Rishi Upadhyay,
Awadh, and Giltu alias Ajay in S.T. No. 207/2001 for offences under
Sections 148, 302/149 of the Indian Penal Code and sentenced them as
aforesaid. However, Dwarka was acquitted in S.T. No. 175/2001 and
Bharat, Radharaman, and Sant Kumar were acquitted in S.T. No.
207/2001.
Similarly, Narhari Prasad Sharma, who has been convicted and has
filed separate Criminal Appeal No. 402/2005, has also died during the
pendency of this appeal, accordingly, by order dated 13/10/2026, the
appeal filed by accused Narhari Prasad Sharma has been dismissed as
abated.
Today this Court, by a separate judgment passed in Cr.A.
Nos.404/2005 and 408/2005 has upheld the conviction of three co-
accused persons namely Rishi Upadhyay, Awadh and Giltu alias Ajay.

3. Prosecution case, in short, is that on 18/05/2000 at around 10:15
AM, deceased Tuntun alias Dinesh, was purchasing a pouch from the Pan
shop of Rajendra Acharya situated in Rannod bus stand. As soon as he
was about to leave the shop, at that time, Awadh Bohre, Narhari Bohre,
Rishi Upadhyay armed with Iron rods, Giltu Bohre, Kalicharan Soni,
Mukesh Soni, Radharaman Bohre, Dwarka Bohre, Devendra Bohre armed
with Lathi and Sant Kumar, Vijay Bohre, Shyam Soni, Lakhan Bohre
armed with Pharsa , Chokharmal Bohre armed with Sword, Narendra
Bohre and Nathuram Kevat armed with gun, came there. Kali Soni and
Mukesh Soni threw deceased Tuntun alias Dinesh on the ground, and all
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the other co-accused persons started assaulting him by their respective
weapons. Since the number of assailants was more, therefore, Banwari Lal
alias Pappi and other witnesses, who were present on the spot, could not
intervene and the accused persons, after realizing that Tuntun alias Dinesh
has expired, left the place of occurrence. Banwari Lal (PW1) lodged FIR
(Ex.P/1), and accordingly, Crime No. 47/2000 was initially registered
under sections 307, 147, 148 and 149 of IPC, and injured Tuntun alias
Dinesh was sent to District Hospital Shivpuri for medical examination.
However, doctor declared him brought dead. The postmortem of the dead
body of Tuntun alias Dinesh was got done, spot map was prepared,
accused persons were arrested, Pharsa , sword, etc. were seized. The
statements of witnesses were recorded, and initially, chargesheet was filed
against Lakhan Bohre, Chhokarmal Kevat, Vijay Bohre, Devendra,
Mukesh Soni, Kali Charan, Nathuram Kevat, who were separately tried
and after the CID investigation, chargesheet was filed against remaining
co-accused persons, including the respondents for offence under sections
147, 148, 149, 302 of IPC. By order dated 24/12/2001, the trial Court
framed charges under sections 148 and 302/149 of IPC.
4. The respondents and co-accused persons abjured their guilt and
pleaded not guilty.
5. The prosecution in order to prove its case examined Banwari Lal
Tiwari alias Pappi (PW1), Rajendra Acharya (PW2), Kishanlal (PW3),
Dr. V. C. Goyal (PW4), Abdul Haq (PW5), Ramgopal Verma (PW6),
Bhagwanlal (PW7), Mukhtyar Ahmad (PW8), Majar Ahmed (PW9),
Pradeep Pandey (PW10), Gopal Krishna Tiwari (PW11), P. S. Yadav
(PW12) and Ajay Bhargava (PW13).
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6. Respondents did not examine any witness in their defence.
7. By the impugned judgment, the respondents have bee acquitted.
8. Challenging the judgment of acquittal it is submitted by counsel for
appellants/State that the trial Court has given undue importance to minor
omissions and contradictions in the ocular and medical evidence.
Respondent Nos. 1,2 and 4 were members of unlawful assembly and,
therefore, even in absence of any specific role they can be convicted with
the aid of sections 148 and 149 of IPC and, accordingly it is submitted
that acquittal of respondent Nos.1, 2 and 4 is bad in law and is liable to be
reversed.
9. Per contra the appeal is vehemently opposed by counsel for
respondents.
10. Heard, learned counsel for the parties.
11. Dr. V. C. Goyal (PW4) had conducted the postmortem of the dead
body of Tuntun alias Dinesh. In the post mortem report, the doctor noted
as under:-
“Body lying supine on P.M. Table. Wear full T-shirt. Coloured
Glubond (Toliya). Full paint greenish Color & Colour Chaddi.
Black thread wear around neck. Black Cotton Patti around right
arm, metal kada in right wrist. Thread kalava right wrist. Rigor
mortis start in neck & both upper limb. Pupil unequal left side
dilated and right side, little constricted. Mouth closed. Following
injuries present over body:
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1. Lacerated wound 2½ inch x 1½ cm x bone deep Rt side occipital
region skull.
2. Contusion 2 inch x 1 inch left temporal region.
3. Contusion one inch x 1/2 inch Rt parietal region skull.
4. Contusion 2 inch x one inch Rt temporal region.
5. Contusion 2½ cm x 1½ cm left side fore head.
6. Contusion 2½ cm x 2 cm left maxillary area.
7. Contusion 3 inch x one inch left side neck.
8. Contusion one inch x one inch round posterior aspect of Rt
upper arm.
9. Contusion three inch x one inch lateral aspect of Rt upper arm.
10. Contusion five inch x 3/4 inch lower border of Rt scapula, back
of chest up to mid axillary line.
11. Contusion 5½ inch x one inch below contusion no. 10 oblique.
12. Contusion 4 inch x 1½ inch right gluetal region below iliac
crest.
Bleeding clots present around nose.
th
Fracture of 7 rib right side, fracture of occipital bone right side,
fracture of temporal bone right side
All injuries are antemortem in nature, caused by hard and blunt
object. Injury Nos. 1,2,3 & 4 sufficient to cause death.
In my opinion, mode of death is coma due to head injury
(Hematoma in occipital region and fracture of occipital bone and
right temporal bone). Duration since death upto time of PM two to
four hours.”
The postmortem report is (Ex.P/9C) as the original postmortem
report was exhibited in the trial of co-accused persons as Ex.P/9.
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This witness was not cross-examined at all. Therefore, it is clear
that deceased Tuntun alias Dinesh Tiwari had died a homicidal death.
12. Now, the only question for consideration is as to whether the
acquittal of respondents Nos. 1, 2, and 4 can be reversed by this Court or
not ?
13. Before considering the evidence which has come on record, this
Court would like to consider the scope of jurisdiction of the High Court in
an appeal against acquittal.
14. The Supreme Court in the case of Suchand Pal v. Phani Pal &
Another , reported in (2003) 11 SCC 527 , has held as under:
"8. The respective stands need careful consideration. There is
no embargo on the appellate court reviewing the evidence upon
which an order of acquittal is based. Generally, the order of
acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal.
The golden thread which runs through the web of
administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. The
paramount consideration of the court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice
which may arise from acquittal of the guilty is no less than from
the conviction of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon the appellate court to
reappreciate the evidence where the accused has been acquitted,
for the purpose of ascertaining as to whether any of the accused
really committed any offence or not. (See Bhagwan Singh v.
State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736 : (2002)
2 Supreme 567] ) The principle to be followed by the appellate
court considering the appeal against the judgment of acquittal is
to interfere only when there are compelling and substantial
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reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been
unjustifiably eliminated in the process, it is a compelling reason
for interference. These aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : AIR 1973 SC 2622] ,
Ramesh Babulal Doshi v. State of Gujarat [(1996) 9 SCC 225 :
1996 SCC (Cri) 972 : (1996) 4 Supreme 167] , Jaswant Singh v.
State of Haryana [(2000) 4 SCC 484 : 2000 SCC (Cri) 991 :
(2000) 3 Supreme 320] , Raj Kishore Jha v. State of Bihar
[(2003) 11 SCC 519 : 2004 SCC (Cri) 212 : (2003) 7 Supreme
152] , State of Punjab v. Karnail Singh [(2003) 11 SCC 271 :
2004 SCC (Cri) 135 : (2003) 5 Supreme 508] and State of
Punjab v. Phola Singh [(2003) 11 SCC 58 : 2004 SCC (Cri) 276
: (2003) 7 Supreme 17] ."

15. The Supreme Court in the case of Muralidhar Alias Gidda &
Anr. v. State of Karnataka , reported in (2014) 5 SCC 730 , has held as
under :
"10. Lord Russell in Sheo Swarup [Sheo Swarup v. King
Emperor, (1933-34) 61 IA 398 : (1934) 40 LW 436 : AIR 1934
PC 227 (2)] , highlighted the approach of the High Court as an
appellate court hearing the appeal against acquittal. Lord
Russell said: (IA p. 404)
“… the High Court should and will always give proper weight
and consideration to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the presumption
of innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at his trial;
(3) the right of the accused to the benefit of any doubt; and (4)
the slowness of an appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing the
witnesses.”
The opinion of Lord Russell has been followed over the years.
11. As early as in 1952, this Court in Surajpal Singh [Surajpal
Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52 : 1952 Cri LJ
331] while dealing with the powers of the High Court in an
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appeal against acquittal under Section 417 of the Criminal
Procedure Code observed: (AIR p. 54, para 7)
“7. … the High Court has full power to review the
evidence upon which the order of acquittal was founded,
but it is equally well settled that the presumption of
innocence of the accused is further reinforced by his
acquittal by the trial court, and the findings of the trial
court which had the advantage of seeing the witnesses
and hearing their evidence can be reversed only for very
substantial and compelling reasons.”
12. The approach of the appellate court in the appeal against
acquittal has been dealt with by this Court in Tulsiram Kanu
[Tulsiram Kanu v. State, 1951 SCC 92 : AIR 1954 SC 1 : 1954
Cri LJ 225] , Madan Mohan Singh [Madan Mohan Singh v.
State of U.P., AIR 1954 SC 637 : 1954 Cri LJ 1656] , Atley
[Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653] ,
Aher Raja Khima [Aher Raja Khima v. State of Saurashtra,
AIR 1956 SC 217 : 1956 Cri LJ 426] , Balbir Singh [Balbir
Singh v. State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] ,
M.G. Agarwal [M.G. Agarwal v. State of Maharashtra, AIR
1963 SC 200 : (1963) 1 Cri LJ 235] , Noor Khan [Noor Khan v.
State of Rajasthan, AIR 1964 SC 286 : (1964) 1 Cri LJ 167] ,
Khedu Mohton [Khedu Mohton v. State of Bihar, (1970) 2 SCC
450 : 1970 SCC (Cri) 479] , Shivaji Sahabrao Bobade [Shivaji
Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 :
1973 SCC (Cri) 1033] , Lekha Yadav [Lekha Yadav v. State of
Bihar, (1973) 2 SCC 424 : 1973 SCC (Cri) 820] , Khem Karan
[Khem Karan v. State of U.P., (1974) 4 SCC 603 : 1974 SCC
(Cri) 639] , Bishan Singh [Bishan Singh v. State of Punjab,
(1974) 3 SCC 288 : 1973 SCC (Cri) 914] , Umedbhai Jadavbhai
[Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 :
1978 SCC (Cri) 108] , K. Gopal Reddy [K. Gopal Reddy v.
State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305] , Tota
Singh [Tota Singh v. State of Punjab, (1987) 2 SCC 529 : 1987
SCC (Cri) 381] , Ram Kumar [Ram Kumar v. State of Haryana,
1995 Supp (1) SCC 248 : 1995 SCC (Cri) 355] , Madan Lal
[Madan Lal v. State of J&K, (1997) 7 SCC 677 : 1997 SCC
(Cri) 1151] , Sambasivan [Sambasivan v. State of Kerala,
(1998) 5 SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh
[Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 : 2002 SCC
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(Cri) 736] , Harijana Thirupala [Harijana Thirupala v. Public
Prosecutor, (2002) 6 SCC 470 : 2002 SCC (Cri) 1370] , C.
Antony [C. Antony v. K.G. Raghavan Nair, (2003) 1 SCC 1 :
2003 SCC (Cri) 161] , K. Gopalakrishna [State of Karnataka v.
K. Gopalakrishna, (2005) 9 SCC 291 : 2005 SCC (Cri) 1237] ,
Sanjay Thakran [State of Goa v. Sanjay Thakran, (2007) 3 SCC
755 : (2007) 2 SCC (Cri) 162] and Chandrappa [Chandrappa v.
State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri)
325] . It is not necessary to deal with these cases individually.
Suffice it to say that this Court has consistently held that in
dealing with appeals against acquittal, the appellate court must
bear in mind the following:
(i) There is presumption of innocence in favour of an
accused person and such presumption is strengthened by
the order of acquittal passed in his favour by the trial
court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the
appeal against acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as extensive
as its powers in appeals against convictions but the
appellate court is generally loath in disturbing the finding
of fact recorded by the trial court. It is so because the trial
court had an advantage of seeing the demeanour of the
witnesses. If the trial court takes a reasonable view of the
facts of the case, interference by the appellate court with
the judgment of acquittal is not justified. Unless, the
conclusions reached by the trial court are palpably wrong
or based on erroneous view of the law or if such
conclusions are allowed to stand, they are likely to result
in grave injustice, the reluctance on the part of the
appellate court in interfering with such conclusions is
fully justified; and
(iv) Merely because the appellate court on reappreciation
and re-evaluation of the evidence is inclined to take a
different view, interference with the judgment of acquittal
is not justified if the view taken by the trial court is a
possible view. The evenly balanced views of the evidence
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must not result in the interference by the appellate court in
the judgment of the trial court.
13. In Ghurey Lal [Ghurey Lal v. State of U.P., (2008) 10 SCC
450 : (2009) 1 SCC (Cri) 60] , the Court has culled out the
principles relating to the appeals from a judgment of acquittal
which are in line with what we have observed above."
16. Thus, it is clear that if two views are possible, then the High Court
should not reverse the judgment of acquittal merely on the ground that
another view should have been taken by the trial Court. The judgment of
acquittal gives strength to the concept of innocence. Unless and until the
judgment passed by the trial Court is perverse or contrary to the record,
the same cannot be interfered with by reversing the judgment of acquittal
into a judgment of conviction.
17. The trial Court, from paragraph 13 onwards, has dealt with the case
of Bharat Bohre against whom the appeal has already been dismissed as
abated, and Dwarka Bohre who is respondent No. 1. Banwarilal Tiwari
alias Pappi (PW1), had alleged that Dwarka Bohre was armed with a
Pharsa . Other witnesses, namely Mukhtiar Ahmed (PW8), and Majar
Ahmad (PW9), have turned hostile and have not supported the
prosecution case in toto. They have not specifically stated that Dwarka
Bohre was one of the assailants. However, Mukhtiar Ahmed (PW8), has
merely stated that the accused persons present in Court are known to him,
and some of them had assaulted deceased Tuntun alias Dinesh, and
thereafter, he went back to his house. Majar (PW9), has turned hostile in
toto .
18. Pradeep Pandey (PW10), has also stated that the accused persons
had assaulted deceased by Pharsa , Lathi, and Iron Rods. However, this
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witness has not clarified that what weapon was being carried or used by
respondent No. 1 Dwarka Prasad. Only Banwarilal Tiwari alias Pappi
(PW1) has specifically alleged that Dwarka Bohre was having a Pharsa
which was used by him. However, no injury which could have been
caused by a sharp-edged weapon has been found on the body of the
deceased.
19. Under these circumstances, if the trial Court has acquitted Dwarka
Bohre, then it cannot be said that it is contrary to law or that such a
finding is perverse.
20. So far as the involvement of Radharaman/respondent No. 2, is
concerned, the trial Court has held that Banwarilal Tiwari alias Pappi
(PW1), has not pointed out that which weapon was being carried by
Radharaman. Even Pradeep Pandey (PW10), has not made any specific
allegation against Radharaman. Although Banwarilal Tiwari alias Pappi
(PW1), in his FIR (Ex.P/1), had alleged that Radharaman was having a
Lathi, but in absence of any specific evidence in Court, coupled with the
fact that FIR is not a substantive piece of evidence, this Court is of the
considered opinion that the trial Court did not commit any mistake by
acquitting Radharaman/respondent No. 2.
21. So far as the acquittal of Sant Kumar/respondent No. 4, is
concerned, Banwarilal Tiwari alias Pappi (PW1), has not made any
specific allegation against Sant Kumar in his examination-in-chief. In
paragraph 1 of his examination-in-chief, he had merely stated that Sant
Kumar was also involved, but has not clarified that what weapon was
being carried by Sant Kumar. Pradeep Pandey (PW10), has also not made
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any specific allegation against Sant Kumar. Although Banwarilal Tiwari
alias Pappi (PW1), in his FIR (Ex.P/1), had alleged that Sant Kumar was
having a Pharsa but in absence of any injury which could have been
caused by a sharp-edged weapon, coupled with the fact that the FIR is not
a substantive piece of evidence, no importance can be given to such
evidence.
22. Under these circumstances, if the trial Court has acquitted Sant
Kumar/respondent No. 4, then it cannot be said that the findings regarding
his acquittal are perverse or contrary to the record.
23. As no perversity could be pointed out by counsel for appellants,
accordingly, this Court is of considered opinion that merely because
another view could have been taken by the trial Court, it would not be a
ground to reverse the judgment of acquittal.
24. Accordingly, the judgment dated 22/6/2005 passed by I Additional
Sessions Judge, Shivpuri in S.T. No. 175/2001 and S.T. No.207/2001 qua
the respondents namely Dwarka Prasad, Radharaman, and Sant Kumar, is
hereby affirmed.
25. Appeal fails and is, hereby, dismissed.

(G. S. AHLUWALIA) (ANURADHA SHUKLA)
JUDGE JUDGE


(and)


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