State Of Madhya Pradesh vs Baboolal & Ors

The appellant-State has challenged the judgment dated 30.06.1994 passed by 4th Additional Sessions Judge, Sagar in Sessions Trial No.19/1994,

whereby the respondents were acquitted from the charges under Sections 148, 302 read with Section 149 of Indian Penal Code.

Brief facts of the prosecution case is that on 15-09-1993 at about 09:00 am, Rajesh went towards his field at village Sarrabeet. He heard noise of

Dwarika (maternal father-in-law) and saw that at the precinct (medh) of Sunderlal Choubey's field all the respondents were beating Dwarka. They

were armed with Ballam, Kush and Lathis. Due to fear of the respondents, Rajesh and neighboring farmer Rameshwar both were standing away

from the respondents. They tried to stop the respondents to assault Dwarka, but they failed to do so. Thereafter, Rajesh ran away towards village

and informed about the incident to his uncle Sunder Lal. They came to the spot with Rajesh and asked Dwarika about the incident. He narrated

names of the respondents as assailants to them. They were bringing Dwarka to Police Station, Deori, but he died on the way. Hence, Rajesh lodged

FIR against all the respondents. After investigation, charge sheet was filed against them under Sections 147, 148, 302/149 of IPC.

The respondents were charged by the trial Court under Sections 148 and 302 read with Section 149 of IPC. They abjured guilt and pleadedÂ

innocence and claimed to be tried. After considering testimony of eye witness Rajesh and other evidence, learned trial Court held that the prosecution

has failed to prove the aforesaid charges, hence acquitted the respondents from the charges levelled against them.

The State has challenged the aforesaid findings on the ground that the trial Court erred in acquitting the respondents from the charges under

Sections 148, 149 and 302 of IPC. The trial Court ought to have relied upon the testimony of Rajesh. He is an eye witness and supported the

prosecution case. Prosecution also examined Sunderlal (PW-2) in support of his testimony and oral dying declaration of the deceased. He clearly

deposed that deceased Dwarka had stated to him that accused persons assaulted him. Deceased had received 36 injuries, which were duly proved

by the medical evidence. The trial Court misappreciated the evidence on record and wrongly acquitted the respondents. It is alleged by the appellant

that findings of trial Court are perverse and contrary to law. Hence, the impugned judgment be set aside and the respondents be convicted for

committing offence punishable under Sections 148 and 302/149 of IPC.

Learned counsel for the respondents supported the findings of trial Court and submitted that the trial Court has rightly acquitted the

respondents.

We have considered the rival contentions of the learned counsel for the parties. Perused the record.

Now the question arises is that “whether the findings of learned trial Court are liable to be reversed?â€​

It is settled law that High Court has appellate jurisdiction to reverse the judgment of the acquittal into the conviction. The power of appellate Court

in an appeal against the acquittal was formulated by the Judicial Committee of Privy Counsel in Privy Council in Sheo Swarup v. King Emperor (AIR

1934 PC 227). The Apex Court has a settled view that the High Court has full power to review at large all the evidence and to reach the conclusion

upon that evidence the order of acquittal should be reversed.

The Apex Court further held that no doubt it is true that there is a presumption of innocence in favour of the accused and that presumption is

reinforced by an order of acquittal recorded by the trial court, but that is not the end of the matter, for it is for the appellate court to keep in view the

relevant principles of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion in accord with the principles of

criminal jurisprudence.

Keeping in view the above principles laid down by the Supreme Court, we can scan the approach of the learned trial Court and scrutinize the

correctness of the impugned judgment.

Learned counsel for the respondents have not challenged the postmortem report and the testimony of Dr. B.C. Jain (PW1) before us.Â

Dr. B.C. Jain (PW1) deposed that on 15.9.1993 he conducted autopsy of the dead body of deceased and found 38 injuries on the body of the

deceased. There were incised wounds, lacerated wounds, contusions on almost every parts of the body of the deceased. He opined that all the

injuries were antemortem and homicidal in nature. Injuries No. 24, 27, 28, 33 and 34 were caused by sharp object. Other injuries were caused by hard

and blunt object. Injury No.1 (lacerated wound) caused on the parietal region of the deceased was sufficient to cause the death of deceased in

ordinary course of nature. All the injuries were caused within 6 hours of the postmortem. We do not find any reason to disbelieve the testimony

of Dr. B.C. Jain (PW1). It clearly established that the assailants asaaulted the deceased with intention and knowledge to cause his death by using

hard and blunt object and also by sharp objects. The number of injuries and nature of injuries further indicated that there were more than one

assailants, who caused the aforesaid injuries to the deceased by different objects at vital body parts also.

In this regard the prosecution examined Rajesh Choubey (PW8) as main eye witness. Learned trial Court has not relied on his testimony and held

that from the place where Rajesh Choubey was present, it was impossible for him to witness the incident. The prosecution also examined some other

witnesses Sunder Lal (PW2), Nanhe Bhai (PW3) and Nirpad Singh (PW6). Nanhe Bhai (PW3)Â deposed that 5-6 persons had been beating

Dwarka Tiwari then they ran away from the spot. Thereafter Narupad Singh went to the village Sarra for informing the incident to other persons.

Kalyan (PW5) is the Village Kotwar corroborated the testimony of Sunder Lal (PW2) and Nanhe Bhai (PW3) even then Kalyan (PW5) and

Nirpad (PW6) turned hostile. The testimony of Sunder Lal (PW2), Nanhebhai (PW3) and Kalyan (PW5) also supported the testimony of Rajesh

Coubey (PW8).

We have carefully considered the testimony of Sunder Lal (PW2). He is also close relative of the deceased. He supported the testimony of

Rajesh. He came to know about the incident from Rajesh (PW8). Then he reached at the spot. He further stated that Dwarka Tiwari-deceased

was lying on the field and he sustained number of injuries. He and Kalyan put some water in his mouth. Dwarka Tiwari (since deceased) narrated

him that he was assaulted by Radhe, Arun, Babu, Mukesh, Ghanse, Sannu, Jagge, Mannu, Kanchedi, Ruppu, Tulsi and Latori by ballam, sabbal and

lathi. He also deposed that deceased narrated that respondents inflicted blows by ballam, lathi and sabbal to him. Babu assaulted him by Ballam and

other persons inflicted blows by lathi. Sunder Lal (PW2) further deposed that at the spot Ashok, Rajesh, Rameshwar and Kamal were present. They

all brought Dwarka Tiwari to police station at that time Dwarka Tiwari was alive, but on the way he died. Hence FIR was lodged by Rajesh Choubey

at Police Station, Deori.

Rajesh Choubey (PW8) also stated that he saw the incident from the precinct of Patwari’s field. He witnessed that all the respondents had

been assaulting Dwarka Tiwari by lathi, ballam and Kush then he called Rameshwar Choubey and went to village to inform the incident to his uncle

Sunder Lal.Rameshwar went to the Kalyan’s house to inform the incident. Thereafter Kalyan and Sunder both reached at the spot, at that

time Dwarka Tiwari was in very critical condition.

Rajesh Choubey (PW8) not supported the testimony of Sunder Lal (PW2) about the oral dying declaration of the deceased. A.K. Mishra (PW13)

in para 10 of his crossexamination   denied that Sunder Lal (PW2) told him about oral dying declaration of the deceased. Therefore, only with

regard to the oral dying declaration of the deceased the statement of Sunder Lal (PW2) is found unreliable.

As per the statement of Rajesh (PW8), Rameshwar Choubey (PW14) was also present on the spot, but Rameshwar has been declared hostile and

did not support the entire prosecution case. After aforesaid discussion, we are of the view that the testimony of Rajesh (PW8) is cogent and

trustworthy.. Because from the testimony of other witnesses i.e. Sunder (PW2)Â it is established that firstly Rajesh (PW8) informed about the

incident to him. It means Rajesh (PW8) saw that Dwarka was assaulted by the respondents at the scene of occurrence. Spot map also discloses

presence of Rajesh (PW8) at the place of incident. The trial court discarded his testimony on the ground that place of incident was covered with

grass, but no where it was mentioned by any of prosecution witness that grass was at the height of a person. In broad day light the person can

easily witness the incident from the precinct (medh) which was made with soil at some height.

It is important to note that Rajesh has not admitted the suggestion that he was not able to see the incident due to high grass on the spot. He further

stated that firstly he heard hue and cry of Dwarka then he moved toward the place of incident and witnessed the incident. In our conclusive view the

presence of Rajesh is quite natural nearby the spot, he can easily witness the incident.

Rameshwar (PW14) was also grazing his cattle near the place of occurrence also establishes presence of Rajesh there. He heard the voice of

Rajesh at the place of incident, then he went to Rajesh, just after the incident, Rajesh (PW8) disclosed him that the appellants-Radheyam, Babulal,

Mukesh, Arun, Ghanse, Sannu, Jagge, Roopsingh, Tulsiram, Kanchedi, Latori and Manohar assaulted Dwarka by lathi and other objects. This

version is relevant under Sections 6Â and 8Â of the Indian Evidence Act and partly corroborated the testimony of Rajesh. He also establishesÂ

presence of Rajesh near the spot. We are not inclined to disbelieve the testimony of Rajesh (PW8) which is duly supported by the evidence and

material evidence also. Learned counsel for the respondents submitted that there were many contradiction and omissions present in their testimony,

hence their testimony cannot be relied on.

The maxim falsus in uno, falsus in omnibus is not applicable in criminal trial. The Hon’ble Supreme Court in the case of Chandrappa and

Ors. Vs. State of Karnataka (2008) 11 SCC 328 has laid down that it is unreasonable to expect from a witness to give a picture perfect report of

the incident and minor discrepencies in their statement have to be ignored.

Para 17 of the judgment is extracted as below :-

“17. It has been contended by the learned Counsel for the appellants that the discrepancies between the statements of the eyewitnesses inter se

would go to show that they had not seen the incident and no reliance could thus be placed on their testimony. It has been pointed out that their

statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the deceased and to PW3, the

injured eyewitness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture perfect report of the

injuries caused by each accused to the deceased or the injured more particularly where it has been proved on record that the injuries had been caused

by several accused armed with different kinds of weapons.â€​

In the case of Pawan Kumar Vs. State of Himachal Pradesh (2017) 7 SCC 780 the Apex Court has broadly discussed all the reported judgments

with regard to appellate power of the High Court against the acquittal of accused and in para 16 has held as under :-

“….The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all

acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating

crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt

which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive

solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable

doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of

acquitting a guilty person light heartedly as a learned Author[12] has sapiently observed, goes much beyond the simple fact that just one guilty person

has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public

demand for harsher legal presumptions against indicted “persons†and more severe punishment of those who are found guilty. Thus, too frequent

acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless.

For all these reasons it is true to say, with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from

the conviction of the innocent .…†In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to

make criminal justice potent and realistic.â€​

Now-a-days it is a normal practice that witnesses keep mum due to fear of the accused persons. Sometimes they belong to the same village hence

do not want to create enmity with the accused.

The Hon’ble Supreme Court in the case of Ranukaiah Vs. State of A.P. [ 2017 (2) Crimes 397] has held as under :-

“(i) Appreciation of evidence â€" When ocular evidence supported by medical evidence, it cannot be discarded.

(ii) Reversal of acquittal in appeal â€" When two views are reasonably possible, one indicating conviction and other acquittal, the Court will not

interfere with the order of acquittal but Court shall never hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would

have come to that conclusion, or if the acquittal is manifestly illegal or grossly unjust. [State of U.P. V. Anil Singh, (1988) (Supp). SCC 686 relied

on]â€​

In the light of the principles laid down by the Supreme Court we hold the findings of acquittal of the respondents are illegal and perverse, hence

are liable to be set aside. The appeal filed by the State is hereby allowed. Thus, the impugned judgment is set aside. Respondents are convicted for

the offence under Sections 148 & 302/149 of IPC. They are awarded sentence under Section 148 of IPCÂ R.I. for 3 years. They are alsoÂ

awarded sentence under Section 302/149 of IPC R.I. for life with fine of Rs.3000/-, in default of payment of fine further RI for six months. Both the

sentences shall run concurrently.

Respondents are on bail. Their bail bonds are cancelled and they are directed to surrender before the concerned trial Court within 15 days to

undergo the jail sentence, failing which the trial Court shall take appropriate action against aforesaid respondents for suffering the jail sentence.

A copy of this judgment be sent to the trial Court forinformation and compliance alongwith the record immediately.