State Of Rajasthan Th.Secy. Home Dept vs Abdul Mannan

STATE OF RAJASTHAN ... Appellant

TH. SECY. HOME DEPT.

Versus

ABDUL MANNAN ... Respondent

WITH

CRIMINAL APPEAL NO. 30 OF 2008

STATE OF RAJASTHAN ... Appellant

Versus

ABDUL ZABBAR & ANR. ... Respondents

1

J U D G M E N T

Swatanter Kumar J.

These appeals are directed against the judgment of the

High Court of Rajasthan, Bench at Jaipur dated 15th March,

2005 in a case of communal violence. The trial court vide its

judgment dated 7th September, 1999 returned a finding that

charge against three accused namely Abdul Mannan, Afzal

and Abdul Zabbar under Sections 302/149, 148, 324/149

and 449 of the Indian Penal Code (for short `IPC') was fully

established beyond reasonable doubt and sentenced them as

follows:

2 a For committing an offence under Section 302/149 IPC,

all three accused were awarded rigorous

imprisonment for life along with fine of Rs.5,000/-

each and in default of payment of fine to suffer six

months' simple imprisonment.

b Under Section 148 IPC, all the three accused were

awarded one year's rigorous imprisonment.

c Under Section 324/149 IPC, all the accused were

awarded one year's rigorous imprisonment each and

d Lastly, under Section 449 IPC, they were awarded three

years' of rigorous imprisonment each along with fine of

3

Rs.1,000/- each, in default of payment of fine, to undergo

simple imprisonment for three months.

Aggrieved by the judgment of the trial court, all the three

accused preferred an appeal before the High Court, raising

various issues in relation to the appreciation of evidence, false

implications, contradiction in statements of witnesses and

that no evidence had been led against them. On these

premises, they prayed for setting aside of the judgment of the

trial court and claimed acquittal. The High Court vide its

judgment dated 15th March, 2005, acquitted all the accused

and passed the following order:

4

"9. That takes us to the evidence of the

eye witnesses examined at the trial.

Coming to the testimony of Mahesh (PW-

4) we notice that in his examination in

chief he deposed that a mob of around 70

persons of muslim (sic) attacked the

house of Govind Narayan, but he could

identify only Mehboob, Hanif and Zabbar.

He however, could not identify Afzal and

Mannan. In his cross-examination

Mahesh stated that he did not narrate

the incident to anybody for 5-7 days. He

did not go to jail or other place for the

purpose of identification of accused

Kanhaiya Lal (PW5) deposed that mob of

60-70 persons belonging to Muslim

community entered the house of Govind

Narayan. He could identify Afzal, Kadir,

Islam, Bada Bhaiya, two brother of Noor

Tractorwala, Zabbar Tractorwala,

Mannan, Hanif and Mehboob. In the

cross examination he however stated that

5

he did not narrat the names of these

persons to police. Satya Narayan (PW-7)

in his deposition stated that a mob of 60

persons attacked the house. Afzal, Motal,

Lakhara, Hanif, Mehboob, Zabbar Ahmad

Tractorwala were the members of the

mob. He could not say as to who inflicted

the injury on his person. This witness

was declared hostile by the prosecution.

He could not identify Abdul Mannan in

the court. Having closely scrutinized the

evidence of Mahes, Kanhaiya Lal and

Satya Narayan we are of the opinion that

element of consistency is missing from

their testimony. A through and

scrupulous examination of the facts and

circumstances of the case leads to an

irresistible and inexplicable conclusion

that the prosecution has not established

the charge leveled against all the three

accused by producing cogent, reliable

and trustworthy evidence. Testimony of

6

Mahesh (PW-4), Kanhaiya Lal (PW5) and

Satya Narayan (PW7) is ambulatory and

vacillating and it is not safe to reply

upon. Variations, infirmities, additions,

and embellishments in the evidence of

these witnesses are of such nature that

could undermine the substratum of the

prosecution case. The prosecution could

only able to establish that an unruly mob

of Muslims attacked the house of

deceased but could not prove beyond

reasonable doubt that the three

appellants were the members of unruly

mob and they inflicted injuries. On

examination of testimony of these three

witnesses Mahesh (PW4), Kanhaiya Lal

(PW5) and Satya Narayan (PW-7) from the

point of view of trustworthiness we find it

untruthful. Learned trial judge in our

opinion did not properly appreciate the

prosecution the evidence and committed

7

illegality in convicting and sentencing the

appellants.

10. For these reasons we allow the

instant appeals and set aside the

judgment dated September 7, 1999 of the

learned Special Judge Shri G.C. Sharma,

Communal Riots and Man Singh Murder

Case, Jaipur in Sessions Case

No.1/1997. We acquit the appellants

Abdul Zabbar, Afzal and Abdul Mannan

of the charges under Sections 148,

302/149, 324/149 and 449 IPC. The

appellants Abdul is on bail, he need not

surrender and his bail bonds stand

discharged. The appellants Abdul Zabbar

and Afzal, who are in jail, shall be set at

liberty forthwith, if not required to be

detained in any other case."

8 State of Rajasthan aggrieved by the said judgment of

acquittal, preferred the present appeal before this Court.

Let us briefly examine the case of the prosecution. As

per the submission of the State, this Court should set aside

the judgment of acquittal and punish the accused in

accordance with law.

Satyanarain Baheti made a report to the S.H.O., Police

Station, Malpura in front of the hospital at Malpura on 9th

December, 1992 to the effect that, at about 11.15 a.m. that

morning the complainant had been standing outside his house

9

in Bahetiyon-ke-Mohalle in Ward No.6 of Kasba Malpura.

Hearing the noise of the stampede and uproar, he entered his

house and closed the door. After a while a crowd came from

the side of Hathai and started pelting stones at his house.

Two or three persons came inside the house after breaking the

bolt of the door. Satyanarain ran to stop them but those

persons started beating him. Thereafter, 8-10 persons

including Afzal son of Mota, Mahboob son of Jumma, two

brothers of tractorwala, Syyed Jabbar Ahmad tractorwala,

Abdul Manjan son of Jabbar, Hanif son of Iqbal and Qadir

Islam came inside by climbing the back wall. These persons

were duly armed with knife, pharsi, sword and lathies. They

10

gave two or three blows with swords on the head of Govind

Narain father of Satyanarain. The remaining persons also

inflicted injuries on the head of Govind Narian. Hari Narain,

kakaji of Satyanarain, was also standing there and these

persons also inflicted injuries with sword and pharsi on his

head. Govind Narain fell down, even then these persons did

not stop inflicting injuries on his arms and shoulders with

lathies. Besides Kanhaiya Lal Baheti, Babulal Aggarwal and

Mahesh Mukar Kacholiya had also witnessed the occurrence.

These persons, who had witnessed the occurrence, along with

the complainant, brought Govind Narain and Hari Narain to

hospital at Malpura. At the hospital, doctor after examining

11

them declared both of them dead. Resultantly, FIR was

registered on 9th December, 1992 at about 12.45 p.m. The

case was investigated. On completion of the investigation, the

charge-sheet was filed before the court of competent

jurisdiction. The case was committed only with regard to two

accused namely Hanif and Mehboob. Vide its judgment dated

12th August, 1997, the trial court acquitted both the accused

persons. The case in relation to other accused was then

committed to the trial court. Two other accused, namely,

Firoze and Anwar were discharged by the court vide judgment

dated 21st March, 1998. Thus, the subject matter of the

judgment of the trial court dated 7th September, 1999 relates

12

only to the three accused namely Abdul Zabbar, Afzal and

Abdul Mannan.

The prosecution had examined seven witnesses including

three eye-witnesses (namely, PW7 and complainant

Satyanarain, PW4 Mahesh and PW5 Kanhiyalal) as well as

PW2 medical examiner Dr. Chandra Prakash, and the

investigating officer, PW3 Shri Rajendra Ojha. The

incriminating evidence against the accused was put to the

accused while recording their statement under Section 313 of

the Cr.P.C. The plea taken by the accused was that these

witnesses are deposing falsely, and have implicated them in

13

commission of the crime at the instance of the police. Abdul

Mannan took the plea of false implication, and claimed that he

was in a school at a distance of 18 km away from the Malpura.

Accused Afzal also took the plea of false implication, and

stated that there were two or three persons by the name of

Afzal Lakhara and he had not been present at the place of

occurrence. Similar stand was taken by Zabbar.

The learned trial court discussed the prosecution

evidence as well as the defence at great length. While holding

the statements of above eye-witnesses trustworthy and finding

14

the witnesses led by the defence as not credible, the court held

as under:

"In the opinion of the court, the

evidence of witnesses Ramnarain and

Nathu Lal does not inspire confidence.

When this court could not ignore the

evidence of witnesses - Mahesh,

Kanhaiyalal and Satyanarain in any

manner, which is the reliable evidence of

eye-witnesses to the occurrence, under

such circumstances, the evidence of

witnesses - Ramnarain, Nathu Lal, Satya

Narain and Ratan Singh does not inspire

confidence of the court that at the time of

occurrence, at the three accused persons

were not present at the place of

occurrence, rather they were present at

the place told by the defence witnesses.

Such type of defence evidence, appears to

15

be absolutely fabricated, because such

type of evidence can be prepared easily."

The trial court had specifically recorded the finding that

the prosecution has been able to establish its case that the

role of the accused in inflicting injuries upon the body of the

deceased persons had fully been established and therefore,

they were liable to be punished in accordance with law.

However, the High Court while upsetting the said finding

noticed that PW4, PW5 and PW7 were untruthful witnesses

and that the trial court had not properly appreciated the

prosecution evidence, and therefore, committed an illegality in

convicting and sentencing the accused.

16 As is evident from the above recorded findings, the

judgment of conviction was converted to a judgment of

acquittal by the High Court. Thus, the first and foremost

question that we need to consider is, in what circumstances

this Court should interfere with the judgment of acquittal.

Against an order of acquittal, an appeal by the State is

maintainable to this Court only with the leave of the Court.

On the contrary, if the judgment of acquittal passed by the

trial court is set aside by the High Court, and the accused is

sentenced to death, or life imprisonment, or imprisonment of

more than 10 years, then the right of appeal of the accused is

17

treated as an absolute right subject to the provisions of

Articles 134 91) (a) and 134 (1) (b) of the Constitution of India

and Section 379 of the Code of Criminal Procedure, 1973. In

light of this, it is obvious that appeal against acquittal is

considered on slightly different parameters compared to an

ordinary appeal preferred to this Court. When an accused is

acquitted of a criminal charge, a right vests in him to be a free

citizen and this Court is very cautious in taking away that

right. The presumption of innocence of the accused is further

strengthened by the fact of acquittal of the accused under our

criminal jurisprudence. The courts have held that if two views

are possible on the evidence adduced in the case, then the one

18

favourable to the accused, may be adopted by the Court.

However, this principle must be applied keeping in view the

facts and circumstances of a case and the thumb rule is

whether the prosecution has proved its case beyond

reasonable doubt. If the prosecution has succeeded in

discharging its onus, and the error in appreciation of evidence

is apparent on the face of the record then the Court can

interfere in the judgment of acquittal to ensure that the ends

of justice are met. This is the linchpin around which the

administration of criminal justice revolves. It is a settled

principle of criminal jurisprudence that the burden of proof

lies on the prosecution and it has to prove a charge beyond

19

reasonable doubt. The presumption of innocence and the

right to fair trail are twin safeguards available to the accused

under our criminal justice system but once the prosecution

has proved its case and the evidence led by the prosecution, in

conjunction with the chain of events as are stated to have

occurred, if, points irresistibly to the conclusion that accused

is guilty then the Court can interfere even with the judgment

of acquittal. The judgment of acquittal might be based upon

misappreciation of evidence or apparent violation of settled

canons of criminal jurisprudence.

20 We may now refer to some judgments of this Court on

this issue. In State of Madhya Pradesh v. Bacchudas [(2007)

9 SCC 135], the Court was concerned with a case where the

accused had been found guilty of an offence punishable under

Section 304 (Part II) read with Section 34 IPC by the trial

court; but had been acquitted by the High Court of Madhya

Pradesh. The appeal was dismissed by this Court, stating that

the Supreme Court's interference was called for only when

there were substantial and compelling reasons for doing so.

After referring to earlier judgments, this Court held as under:

"9.There is no embargo on the appellate

court reviewing the evidence upon which

21

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

22

purpose of ascertaining as to whether any

of the accused really committed any

offence or not. (See Bhagwan Singh v.

State of M.P.[(2003) 3 SCC 21] 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 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, Ramesh Babulal

Doshi v. State of Gujarat, Jaswant Singh

v. State of Haryana, Raj Kishore Jha v.

State of Bihar, State of Punjab v. Karnail

Singh, State of Punjab v. Phola Singh,

23

Suchand Pal v. Phani Pal and Sachchey

Lal Tiwari v. State of U.P.

10. When the conclusions of the High

Court in the background of the evidence

on record are tested on the touchstone of

the principles set out above, the

inevitable conclusion is that the High

Court's judgment does not suffer from

any infirmity to warrant interference.

In a very recent judgment, a Bench of this Court in

Criminal Appeal No. 1098 of 2006 titled State of Kerala and

Anr. v. C.P. Rao decided on 16.05.2011, discussed the scope of

interference by this Court in an order of acquittal and while

reiterating the view of a three Judge Bench of this Court in the

24

case of Sanwat Singh & Ors. v. State of Rajasthan [AIR 1961

SC 715], the Court held as under:

"14. In coming to its conclusion, we are

reminded of the well settled principle that

when the court has to exercise its

discretion in an appeal arising against an

order of acquittal, the Court must

remember that the innocence of the

accused is further re-established by the

judgment of acquittal rendered by the

High Court. Against such decision of the

High Court, the scope of interference by

this Court in order of acquittal has been

very succinctly laid down by a Three-

Judge bench of this Court in the case of

Sanwat Singh and Ors. v. State of

Rajasthan [1961 (3) SCR 120]. At page

129, Justice Subba Rao (as His Lordship

25

then was) culled out the principles as

follows:

The foregoing discussion yields the

following results: (1) an appellate court

has full power to review the evidence

upon which the order of acquittal is

founded; (2) the principles laid down in

Sheo Swarup's case [1934 L.R. 61 I.A.

398] afford a correct guide for the

appellate court's approach to a case in

disposing of such an appeal; and (3) the

different phraseology used in the

judgments of this Court, such as (i)

"substantial and compelling reasons", (ii)

"good and sufficiently cogent reasons",

and (iii) "strong reasons" are not intended

to curtail the undoubted power of an

appellate court in an appeal against

acquittal to review the entire evidence

and to come to its own conclusion; but in

doing so it should not only consider every

26

matter on record having a bearing on the

questions of fact and the reasons given by

the court below in support of its order of

acquittal in its arriving at a conclusion on

those facts, but should also express those

reasons in its judgment, which lead it to

hold that the acquittal was not justified."

Reference can also be usefully made to the judgment of

this Court in the case of Suman Sood v. State of Rajasthan,

[(2007) 5 SCC 634] where this Court reiterated with approval

the principles stated by the Court in earlier cases, particularly,

Chandrappa v. State of Karnataka, [(2007) 4 SCC 415].

Emphasizing that expressions like `substantial and compelling

reasons', `good and sufficient grounds', `very strong

circumstances', `distorted conclusions', `glaring mistakes', etc

27

are not intended to curtail the extensive powers of an appellate

court in an appeal against acquittal, the court stated that

such phraseologies are more in the nature of `flourishes of

language' to emphasize the reluctance of an appellate court to

interfere with the acquittal. Thus, where it is possible to take

only one view i.e. the prosecution evidence points to the guilt

of the accused and the judgment is on the face of it perverse,

then the Court may interfere with an order of acquittal.

In light of the above stated principles, we revert to the

facts of the present case. As already noticed, three eye

witnesses PWs.4, 5 and 7 were found to be truthful and

28

reliable witnesses by the trial court whereas those very

witnesses were held to be untrustworthy witnesses by the

High Court. We shall shortly proceed to discuss the

statements of these three witnesses in some detail, as it is

necessary for us to practically re-appreciate the entire

evidence in view of the serious conflict, on findings of fact, in

the two judgments under consideration in the present appeal.

One must notice another very significant error in the judgment

of the High Court. Though the High Court has made a

reference to the injuries inflicted upon the body of the

deceased as detailed by Dr. Chandra Prakash (PW2) in his

report, there is no discussion of his statement, in regard to

29

nature of injuries inflicted and the weapon used for inflicting

such injuries. There is also no discussion in the judgment of

the High Court on the comparative evaluation of medical

evidence, ocular evidence and the documentary evidence

produced by the prosecution on record. These are certainly

material evidence which have either been completely ignored,

or not appropriately appreciated by the High Court. This

renders the judgment of the High Court perverse, and provides

strong reasons for this Court to interfere with the judgment of

acquittal. In our considered view, the order of acquittal can

hardly be sustained where it is based just on some

contradiction in the statements of the while completely

30

ignoring the entire case of the prosecution particularly when

the prosecution has been able to prove its case beyond

reasonable doubt. Dr. Chandra Prakash (PW2), who on 9th

December, 1992 was posted as SMO at medical centre,

Malpura had conducted the postmortem on the body of both

the deceased persons. The injuries on the body of the

deceased Hari Narain, aged 70 years, were recorded by this

witness in his report (Ex.P4) which reads as under:

"I. Lacerated wound in size 3 inch x

2/10 inch till penetrating up to the bones

on the left side of the head which was up

to parietal region. This injury was having

depressed fracture. The blood was oozing

out from the wound.

31 II. Lacerated wound in the size 3.5

inch x 2/10 inch penetrating up to the

bones. In this injury also there was

depressed fracture on the right parietal

region of the (sic). The blood was oozing

out from this injury also. And the brain

matter was coming out.

III. Incised wound in the size of 3 inch x

2/10 into = inch on the upper arm

behind the shoulder and the blood was

oozing out from it.

On the dead body aforesaid external

injuries were found. In my opinion the

death of Hari Narayan was cause (sic)

due to Neutrogena (sic) shock that is

injury of the brain caused by injury Nos.1

and 2.

All the aforesaid injuries were of before

death. The injury Nos. 1 and 2 on the

32

head of Hari Narayan were in general

nature sufficient to cause the death. The

death of Hari Narayan was caused within

2 to 3 hours of (sic) the postmortem. I

prepared the postmortem report which is

exhibit P-4 which is in my hand writing

and it is signed. It bears my signature

from A to B and I have entered the cause

of death at C to D.

On the same date in the day time at 1.30

P.M. I conducted the post mortem on the

dead body of Govind Mahajan son of

Lachh Raj age 72 years, resident of

Malpura and found following injuries on

the dead body which were caused before

death:

1 A wound of cut in size 4 inch x 2/10

inch x penetrating up to bone and

even up to the brain. And the brain

Metter (sic) was coming out this

33

injury was on the center of the head

from where the blood was oozing.

Both the edges of the wound were

sharp.

2 Lacerated wound in size of 3 inch x <

inch deep up to the bones on the

center with depressed fracture. And

obtuse injury all around right eyes

(sic).

3 The blood was coming out from the right

ear.

In my opinion the death of Govind was

caused due to Neutrogena (sic) shock

which was caused by injury no.1 and due

to hemorrhage which was caused by

injury no.2. All the 3 injuries were

caused before the death and in general

nature were sufficient to cause the death

of Govind. The death of Govind was

34

caused within 2 to 3 hours from (sic)

conducting the post mortem I have

prepared the post mortem report which is

exhibit and is verified. It bears my

signature at A to B and I have entered the

cause of death at C to D."

Mahesh (PW 4) in his statement in Court had stated that

he saw a mob of persons belonging to the Muslim community

approaching when he was standing outside his house. Some

of them held swords in their hands, some of them lathies and

some held pharsi and once they reached the house of Govind

Narain, they forcibly opened the door. He went onto the roof

of Premchand Mehru's house, from where he could see that

some persons were pushing the door of Gopal Narain's house.

35 He identified the persons who jumped inside the house, as

Mahboob, Haneef and Abdul Zabbar. Even in the Court, he

rightly identified one person Abdul Zabbar. This witness

stated the he knew Zabbar even prior to the occurrence. He

had also taken Kanhaiya Lal, who was injured, to the hospital.

He had seen the accused persons at the place of incidence. He

was subjected to lengthy cross examination. In his cross

examination, he gave a few vague answers like he does not

remember whether he had discussed the identity of the

accused persons with Satyanarain, whether 4, 5 or 50 police

officers were present at the funeral etc.

36

Corroborating the statement of PW4, Kanhaiya Lal (PW5)

stated that after seeing the mob, he shut the door of his house

called the Malpura police station and climbed to the roof. He

could see persons climbing the roof of Govind Narain's house

and he could recognize Afzal Kadir Islam, Bada Bahaiya, two

brothers of tractorwala namely Jabbar tractorwala and

Mannan, Hanif and Mahboob. According to him these persons

went inside the house of Govind Narain and created nuisance.

This witness, according to the trial court, rightly identified the

persons named by him. This witness also stated that he knew

these persons even before the incident. All the three accused

were identified by the witness in Court. Later on, when the

37

police came and the persons from the mob fled away, he went

to the house of Govind Narain, the door was broken and he

noticed that both Govind Narain and Hari Narain were lying in

a pool of blood and were unconscious. Satyanarain had

sustained injuries. Thereafter he took all of them to the

hospital where two deceased persons were declared `brought

dead'. In his cross examination also nothing material was

brought out by the defence. He did admit that he could not

identify all the persons, who had come there.

PW 6-Radhey Shyam is the Investigating Officer and was

the SHO of police Station, Malpura. According to him, he was

38

busy in maintaining law and order situation when he received

the information that assailants had entered the house of one

Govind Narain Waheti and had beaten those inside; and that

the latter had been taken to the hospital. Satyanarain (PW7),

who is the most material witness of the prosecution, had made

the report (Ex.P7) to PW6. He is the injured witness. He

stated that a mob of 50-60 persons had come towards that

area shouting, "Maro! Maro!". He went inside his house and

closed the door but in a short while stones were thrown at the

house. Some members of the mob started pushing the door

and eventually broke the door and PW7 ran away for safety.

Afzal Mota Lakhara, Mahboob, Hanif tractorwala, Jabbar

39

Ahmad Tractorwala came inside and some other persons who

he could not identify started assaulting Govind Narain and

Hari Narain with lathi and pharsi which he witnessed from his

room. According to PW7, the injuries were caused on the

head. He came out of his room and tried to save them, and in

the process, he also suffered injuries. In the meantime, the

police siren blew and upon hearing the same, these persons

ran away. The witness correctly identified Zabbar and Afzal in

Court and stated that these persons had caused injuries to the

deceased. This witness referred to the place of occurrence,

preparation of site plan and medical report by the doctor, he

admitted his signature on all these documents including Exh.

40 P-8. It appears from the record that during recording of

statement of this witness, the public prosecutor sought

permission to declare the witness hostile. Without declaring

him hostile, the Court had permitted him to be cross-

examined by the public prosecutor. This related to the fact

that after hearing portion C to D, part of Exh. P-9, the witness

has stated that after identifying the accused, he had stated the

name of the accused as Abdul Mannan to the police. He then

stated that Abdul was also there, however he could not

identify him definitely. At that stage, this witness was

declared hostile. Cross examination of these witnesses by the

public prosecutor as well as by the defence counsel did not

41

have an adverse impact on the main case of the prosecution.

In his cross examination, he said that he had forgotten and

therefore he had stated that he did not go to the police station

for lodging the report. In fact he wrote the report in his own

hand (Exh.P7). According to him, the persons who had

assaulted him were the same persons who had assaulted his

father and uncle. He also tried to wriggle out of his earlier

statement that he could identify the accused. It needs to be

noticed that his statement, which was recorded in the Court

on 17th March, 1999, was completely in consonance with the

case of the prosecution but when he appeared in the Court for

further cross-examination on 18th March, 1999, he tried to

42

wriggle out of his main statement. Thus, it is not very difficult

to understand the variation in his statement resulting in the

further cross examination. This entire evidence has to be read

along with the statement of the Investigating Officer (PW6).

Establishment of a complete chain of events and clear

identification of the persons assailing the deceased lead to the

irresistible conclusion that the prosecution has been able to

bring home the guilt of the accused. Undoubtedly, emphasis

on the second half of the statement of PW7 cannot completely

demolish the case of the prosecution which otherwise stands

proved by the statements of PW4, PW5, PW6 and PW2.

43 The strain on the witness due to the incident cannot be

ruled out inasmuch as he had lost his father, uncle and was

himself injured. All the basic facts that supported the case of

the prosecution were stated by him on 17th March, 1999 when

the case was adjourned for further cross-examination on 18th

March, 1999 when he made a statement at variance with his

earlier statement in Court as well as his statement recorded

under Section 161 of the Cr.P.C. Another fact which the Court

cannot lose sight of is that Exh. P2 was not a document

written by the police but was written in his own hand and duly

signed by him which he admitted even in his statement in

Court.

44 Satyanarain (PW 7) has also made statements which fully

aid the case of the prosecution and his statement recorded on

the adjourned date before the trial court i.e. 18th March, 1999

which is at variance cannot be treated as gospel truth. In fact

the bare reading of the statement clearly shows this fact.

Even if we exclude the statement of PW7 from consideration,

then identity of the accused is still fully established by the

statements of PW3, PW4, PW5 and PW6. There is no reason,

whatsoever advanced, as to why PW4 and PW5 (neighbours of

the deceased) who are otherwise independent witnesses, and

the doctor would involve the accused falsely. There is no

animosity between the parties, and in fact according to these

45

witnesses, they knew the accused particularly Abdul Zabbar,

Afzal and Mannan for quite some time. There is no reason for

the Court to hold that PWs 4 and 5 are not trustworthy. Their

statements describe the occurrence in its proper course and

are compelling evidence of the same. We do not find it

appropriate to discard their statements as not inspiring

confidence. The statement of these witnesses must be

appreciated in the proper perspective. It was an incident

involving a mob but only few persons had entered the house of

the deceased, out of which 7 to 8 persons could be identified

including the three accused as having inflicted injuries on the

body of the deceased and were duly identified by the

46

prosecution witnesses. The injury on the head duly finds

corroboration from the statement of the Doctor i.e. Ex.P4. It

is not a case where the medical evidence does not support or

corroborate the ocular evidence. Some discrepancies or some

variations in minor details of the incident would not demolish

the case of the prosecution unless it affects the core of the

prosecution case. Unless the discrepancy in the statement of

witness or the entire statement of the witness is such that it

erodes the credibility of the witness himself, it may not be

appropriate for the Court to completely discard such evidence.

The core of the prosecution case is that when the mob came,

PWs 4 and 5 ran to their houses, locked their doors, went to

47

the roof of the houses which were adjacent to the house of the

deceased and watched some members of the mob, of whom

they could identify a few, assault the deceased. This

statement clearly shows the trustworthiness of these

witnesses as they have stated that there were some other

persons whom they could not identify. However both these

witnesses and complainant Satyanarain clearly identified the

persons who had entered and assaulted the deceased persons.

Though Satyanarain (PW 7) fully supported the case of the

prosecution that he was also assaulted by these persons, he

did speak in a different voice the next day before the Court. In

our considered opinion the cumulative effect of the ocular

48

evidence and documentary evidence is that the prosecution

has been able to establish its case beyond reasonable doubt.

We may also refer to a very recent judgment of this

Court, given by us in Crl. Appeal Nos. 1693-1994/2005, State

of U.P. v. Mohd. Ikram & Ors. decided on 13th June, 2011

where by upsetting the judgment of acquittal passed by the

High Court, this Court held as under:

"15.....Once the prosecution had brought

home the evidence of the presence of the

accused at the scene of the crime, then

the onus stood shifted on the defence to

have brought forth suggestions as to

what could have brought them to the spot

at that dead of night. The accused were

49

apprehended and therefore, they were

under an obligation to rebut this burden

discharged by the prosecution, and

having failed to do so, the trial court was

justified in recording its findings on this

issue. The High Court committed an error

by concluding that the prosecution had

failed to discharge its burden. Thus, the

judgment proceeds on a surmise that

renders it unsustainable.

The trial court did not find evidence

of Bhugan (DW.1), examined by Mohd.

Iqram, one of the respondents , worth

acceptance.

16. The High Court did not even make

any reference to him. It is a settled legal

proposition that in exceptional cases

where there are compelling

circumstances, and the judgment under

appeal is found to be perverse i.e. the

conclusions of the courts below are

50

contrary to the evidence on record or its

entire approach in dealing with the

evidence is patently illegal, leading to

miscarriage of justice or its judgment is

unreasonable based on erroneous law

and facts on the record of the case, the

appellate court should interfere with the

order of acquittal. While doing so, the

appellate court should bear in mind the

presumption of innocence of the accused

and further that the acquittal by the

courts below bolsters the presumption of

his innocence. Interference in a routine

manner where the other view is possible

should be avoided, unless there are good

reasons for interference.

17. In the instant case, the circumstantial

evidence is so strong that it points

unmistakably to the guilt of the

respondents and is incapable of

explanation of any other hypothesis that

51

of their guilt. Therefore, findings of fact

recorded by the High Court are perverse,

being based on irrelevant considerations

and inadmissible material."

Learned counsel for the accused had placed reliance

upon the judgment of this Court in Shivalingappa

Kallayanappa v. State of Karnataka [1994 Supp 3 SCC 235] to

contend that there was no common object to commit murder.

The appellants cannot derive much advantage from the

judgment of this Court in that case: First, the facts of that

case are entirely different from those of the case in hand. In

that case, it was established by the prosecution that A-1 to A-

5 formed an unlawful assembly wherein A1 and A2 were

52

armed with axes and A3, A4 and A5 with sticks in order to

assault the two deceased persons amongst others. While A3

did not participate, A4 and A5 only dealt blows on legs and

arms with their sticks but A1 and A2 dealt blows to the head

with the butt end of their axes which proved to be fatal.

Convicting A1 and A2 under S. 302/149, IPC and A3-5 under

S. 326/149, the Court held that taking all the circumstances

of the case into consideration, the common object can be held

to be to cause grievous hurt only and not to commit murder.

However, in the present case, common object to commit

murder has been fully proved. Second, the case of the

prosecution is not that the entire mob had entered the house

53

of the deceased. Out of the mob of 50-60 persons only 7 to 10

persons had broken the door of the house and some of them

had climbed the wall to enter the house of the deceased.

These persons had raised the slogan `maro! maro!' and

thereafter had inflicted the injuries upon the body of the

deceased. The common intention could even develop at the

spur of the moment when the three accused, as duly

identified, were actively inflicting injuries on the body of the

deceased. They, therefore, not only caused injuries to the vital

body parts of the deceased, including head injury, but kept on

inflicting injuries even after the deceased had fallen to the

ground. The efforts of Satyanarain to save them were in vain

54

and he himself suffered certain injuries. Thus, in the present

case, it has been established that more than five persons

constituted an unlawful assembly and in furtherance to their

common object and intent, assaulted and caused injuries to

vital parts of the bodies of the deceased, ultimately resulting in

their death. We, therefore, have no hesitation in holding that

there is no merit in this contention of the accused and the trial

Court applied the law correctly.

Section 149 consists of two parts; the first deals with the

commission of an offence by any member of an unlawful

assembly in prosecution of the common object of that

55

assembly; the second part deals with commission of an offence

by any member of an unlawful assembly in a situation where

other members of that assembly know the likelihood of the

offence being committed in prosecution of that object. In

either case, every member of that assembly is guilty of the

same offence, which other members have committed in

prosecution of the common object.

The final point is the common object. The case of

Lokeman Shah v. State of W.B. [(2001)5 SCC 235] on this point

would further substantiate the case of the State and diminish

the worth of the defence. Accused have inflicted the injuries

56

after raising slogan and have commonly participated in

committing offence which resulted in the death of the

deceased.

For the reasons afore-recorded, we find the present case

a fit case for interference in the judgment of acquittal recorded

by the High Court. Consequently, the appeals of the State are

allowed, the judgment of the High Court is set aside and that

of the trial court is restored. We concur with the finding of

guilt and the quantum of punishment awarded by the trial

court.

57 The bail bonds of the accused, if any, who are on bail, are

cancelled. They are directed to surrender within four weeks

from today failing which the Chief Judicial Magistrate, District

Tonk, Rajasthan shall ensure to take them into custody and

they shall undergo the remaining part of their sentence in

terms of the judgment of conviction and punishment awarded

by the trial court.

A copy of the judgment be sent to the concerned CJM for

information and action.

....................................J.

[Dr. B.S. Chauhan]

58

....................................J.

[Swatanter Kumar]

New Delhi;

July 7, 2011

59