Manga @ Man Singh v State of Uttarakhand
Supreme Court of India

3  May  2013
Cr.A. No. 1156 of 2008 with Cr.A. No. 1157 of 2008, Cr.A. No. 1158 of 2008, Cr.A. No. 1159 of 2008, Cr.A. No. 1160 of 2008, Cr.A. No. 1161 of 2008, Cr.A. No. 1162 of 2008, Cr.A. No. 1163 of 2008, Cr.A. No. 1164 of 2008, Cr.A. No. 1165 of 2008, Cr.A. No. 1166 of 2008
The Judgment was delivered by : Fakkir Mohamed Ibrahim Kalifulla, J.
1. In these appeals the challenge is to the common judgment of the Division Bench of the High Court of Uttarakhand at Nainital dated 14.6.2007 in Criminal Appeal Nos.17, 18, 19, 21, 22, 23, 24, 25 and 95 of 2005. The High Court by the impugned judgment confirmed the conviction and sentences awarded by the trial Court in its judgment and order dated 01.2.2005, in Sessions Case No.156/2002 State v. Soma and Others. The appellants were all convicted for offences under Section 302, 307 read with S. 149 and Ss. 147 & 148 of Indian Penal Code (IPC). Each of the accused was awarded the punishment of life imprisonment and fine of Rs.5000/- under Sections 302/149 IPC and seven years rigorous imprisonment and fine of Rs.3000/- under Section 307/149 IPC and one year's rigorous imprisonment and Rs.1000/- fine u/s. 148 IPC and six months' rigorous imprisonment and Rs.500/- fine u/s. 147 IPC. All the sentences were directed to run concurrently.
2. Criminal Misc. Petition No.22687 of 2011 in Criminal Appeal No.1160 of 2008 filed by the de facto complainant is allowed. Applicant is impleaded as party-respondent.
3. The genesis of the case was that the complainant Sajjad @ Kala PW-2 was the resident of village Dadoobas, within the jurisdiction of Bhagwanpur police station, district Haridwar. On 21.11.2001 his brother Ayyub (PW- 3) went to his field situated near the river. He was accosted by A1 to A- 4 Soma, Chander, Pyara and Radha and fearing assault at their hands Ayyub (PW-3) escaped and rushed back to the residence and reported the matter to PW-2. PW-3 stated to have gone to his field by around 8.30 to 8.45 a.m. and retuned back by 9 to 9.15 a.m. By 10 a.m. the accused, 15 in number, armed with guns and country made pistols approached the house of the complainant, where all other family members were also present. The accused party stated to have abused the complainant and the family members and that while the complainant and his family members were attempting to pacify the accused party, without heeding to any of their advice, accused party opened fire in which Mehroof s/o Nazir, on sustaining gun shot injuries in his chest, succumbed to the injuries and died on the spot.
That Iqurar Ali, another person was seriously injured and 10 others were also injured in the firing assault at the instance of the appellants. They were all shifted to Roorkee hospital for treatment. The body of the deceased Mehroof, was lying at the place of occurrence. PW-2 stated to have lodged written complaint Ka-1 in the police station at about 11.45 a.m. on the same date, whereafter a case was registered against all the accused persons. Iqurar Ali, the other seriously injured person, died on 24.11.2001 at about 4.30 a.m. Thereafter, PW-2 gave a further report Ka-2 to the police station Bhagwanpur. The post-mortem was conducted on the bodies of Mehroof and Iqurar Ali. The investigating officer, in furtherance of the investigation, recovered the guns, prepared the site plan, recorded the statement of witnesses and on conclusion of the investigation, submitted the charge-sheet before the Court. According to PW-2, two years prior to the incident in connection with Soma's (A-1) daughter, there was a gunshot firing by the appellants Bijendra (A-5) and Tirath (A-15) respectively, which was however, compromised outside the Court. He further informed that a 'marpeet' took place between Pyara (A-3) s/o Soma and one Liyakat s/o Nuruddin four days prior to the date of incident with regard to payment of Metador (vehicle) charges and that two days thereafter, exchange of hot words took place between them.
4. It was in the above stated background that the offence was alleged to have been committed by the appellants. The prosecution examined PWs-1 to 13 of whom, PWs-1 to 4 were injured eye-witnesses, namely, Gayyur, Sajjad @ Kala, Ayyub and Ashraf. PW-5 is Dr. S.S. Lal, who conducted the post- mortem on the body of Mehroof. PW-6 is Dr. D.D. Lumba, who attended on the injured persons numbering ten. PW-7 is Dr. Ajay Aggarwal, who attended on the injured eye-witnesses PWs-1 and 2. PW-8 is Dr. R.K. Pandey, who conducted the post-mortem on the body of Iqurar Ali. PW-9 is Dr. Yogesh Kumar, radiologist, who proved X-ray reports of seven of the injured witnesses. PW-10, Sub Inspector, R.K. Awasthi is the investigating officer.
5. In the questioning u/s. 313 C.r.P.C., all the accused took the plea of 'false implication' and that they have been implicated due to enmity, as well as for political reasons. The injuries on the body of Mehroof as stated in the post-mortem report were as under:
"(1) Fire arm would of entry 1 cm x 1 cm rounded in front of left side of chest. 4 cm away from left nipple at 10 O' Clock position, margins inverted, blackening & tattooing present."
6. According to PW-5, Dr. S.S. Lal, Medical officer, the death was caused due to shock and hemorrhage resulting from the ante-mortem firearm injuries sustained by the deceased.
7. Thus, the death was one of homicidal and was proved beyond doubt. The injuries on the body of Iqurar Ali, as per PW-6 the doctor, who attended on him immediately after he was shifted to Roorkee Civil Hospital were as under:
"(1) Lacerated would 1cm x 0.5 cm x through and through left pinna back middle part. No blackening scorching and tattooing seen around the wound.
(2) Lacerated would 1.0 cm x 0.5 cm x muscle deep tragus of left ear. No blackening, scorching and tattooing seen around the wound.
(3) Lacerated would 1.6 cm x 1.0 cm x depth not probed middle of chin lower part. No blackening, scorching and tattooing seen around the wound. Adv. X-ray and fresh in duration."
8. Considering the precarious condition of the injured Iqurar Ali, he was referred to a higher medical centre for treatment on 21.11.2001 at 12:10 p.m. He was taken to PGI Hospital, Chandigarh from where he was referred to AIIMS, New Delhi. However, considering the health of Iqurar Ali, he was allowed to be taken back to his house. He succumbed to his injuries on 24.11.2001. PW-8 who conducted the post-mortem on the body of Iqurar Ali, noted the following ante-mortem injuries:
"(1) Fire arm wound of entry 0.5 cm x 0.08 cm below in middle part of chin. Margins are incised. No blackening and tattooing seen around the wound, on explanation. Bullet traversed through brain substance, strike at occipital bone. There is fracture of occipital bone rebound through brain substance back of neck and recovered from space between C5 & C6 from muscle, fracture of C5 cervical vertebra.
(ii) Abrasion 1.5 cm x 1 cm on the left pinna of tragus."
9. According to PW-8, the death of Iqurar Ali was due to hemorrhage and coma resulting from the ante-mortem fire-arm injuries sustained by the deceased. Therefore, it was established that the death of Iqurar Ali was also a homicidal death on account of fire-arm injuries sustained by him. PW-6 also examined other injured persons including PW-1 Gayyur, PW-3 Ayyub and PW-4 Ashraf and seven others. According to the report, injuries were all due to fire-arms.
10. In all these appeals, the main submissions were made by Shri S.R. Singh, learned senior counsel for the appellants, in Criminal Appeal Nos.1157/2008, 1158/2008, 1161/2008 and 1164/2008 and by Mr. Ashok Kumar Sharma counsel for the appellant in 1156/2008. The other learned counsel appearing for the appellants in Criminal Appeal Nos.1166, 1159 and 1155 of 2008 adopted the submissions of the above counsel. On behalf of the State, Dr. Abhishek Attrey addressed arguments. Mr. Yunus Malik appeared and made submissions on behalf of the de facto complainant, who was impleaded pursuant to the orders passed in Crl.M.P. 22687/2011 in Crl.A.1160 of 2008.
11. Having heard learned counsel for the appellants, the sum and substance of the submission of learned counsel was that there was delay in lodging of the FIR, that there were serious lacunae in the case of the prosecution framed against the appellants in that the evidence did not establish the offence alleged against the appellants, that there was long delay in sending express report to the Magistrate and thereby, violation of S. 157 Cr.P.C. was committed and consequently, the conviction could not have been ordered.
According to learned counsel, when PW-3 Ayyub was alleged to have been accosted around 8.30 to 8.45 a.m. by four persons in the field, it was hard to believe that within a matter of about an hour, there could have been formation of an unlawful assembly by as many as 15 persons with fire-arm weapons, both licenced and country- made, to cause such gruesome and murderous attacks on the deceased and other injured persons, in order to invoke Ss. 302 and 307 read with S. 149 IPC, along with Ss. 147 & 148 IPC. It was contended that if at all the offence of common object can be attributed to the appellants, it could have been only u/s. 141 'third', which cannot be applied to the nature of offences alleged against the persons, namely, Sections 302, 307 read with 149, as well as 147 & 148 IPC. As far as the first appellant in Cri. Appeal No.1165/2008 was concerned, it was contended that he was totally alien to the village where the occurrence took place as he belonged to a different village and that he had been falsely roped in. It was also contended that there was a communal tension in the village as admitted by PW-13 and that under political pressure the police implicated all the persons in the village who were holding licenced arms. Reliance was placed on Jang Singh 2000 Indlaw SC 3699 and others v. State of Rajasthan - 2001 (9) SCC 704 2000 Indlaw SC 3699 in support of the submission of S. 157 Cr.P.C.
12. As against the above submissions, learned counsel for the State argued that non-recovery of bullets or pellets or not sending the guns for ballistic expert report by itself may not vitiate the case of the prosecution, when there was direct evidence relating to the occurrence and injuries inflicted by the appellants on the deceased and other injured persons.
13. Learned counsel contended that when after PW-3 was accosted between 8.30 and 8.45 a.m. and who escaped from the onslaught of the appellants in the field, the appellants had more than an hour, inasmuch as they reached the place of occurrence only by 10 a.m. and, therefore, they had enough time to gather other assailants and indulge in the gruesome act. As far as the scope of S. 149 was concerned, learned counsel contended that the said submission was satisfactorily met in the judgments of the Court below and the same does not merit any consideration. Learned counsel for PW-2 also adopted the submissions of the learned counsel for the State.
14. Having heard learned counsel for the respective parties and having perused the material papers placed before us including the judgment of the High Court as well as that of the trial Court, we find that the following relevant questions require to be addressed, namely:
(1) What is the interpretation to be placed on S. 141 'third' vis--vis S. 149 IPC,
(2) Whether the so-called delay in forwarding express report to the Magistrate after three days from the date of occurrence, namely, on 24.11.2001 would vitiate the case of the prosecution.
(3) Whether the prevalence of communal riots at the time of occurrence merits acceptance in order to extricate the appellants from the conviction imposed.
(4) Whether there was any lacunae in the case of the prosecution based on various points raised on behalf of the appellants.
15. We wish to deal with the first question in the last.
16. As far as the second question is concerned, it is based on the factum of the time taken in forwarding the express report to the Magistrate. Since in Exhibit Ka-47 namely, the First Information Report, the concerned Court put the date 24.11.2001 after the expression 'seen' and there being no other endorsement prior or subsequent to 21.11.2001 mentioning any other date, there is no doubt that the express report was forwarded to the Magistrate only on 24.11.2001. The question, therefore, for consideration is whether that by itself would vitiate the whole case of the prosecution. The submission is that since there was such a wide time gap as between the alleged date of occurrence, namely, 21.11.2001 and the forwarding of the report to the Magistrate on 24.11.2001, there was every chance of antedating the FIR. In support of the said submission based on S. 157 of Cr.P.C., reliance was placed upon the decision reported in Jang Singh 2000 Indlaw SC 3699 (supra). In the first blush, though the said submission appears to be very sound, on a detailed analysis, we find that it is without any substance for more than one reason.
17. In the first place, it is not shown as to how such a delay caused any prejudice to the accused. Except merely stating that the three days delay in forwarding the express report belies the case of the prosecution as alleged, nothing else was shown in support of the said submission. In fact the trial Court dealt with this very submission. The trial Court has noted that the investigating officer was not questioned at all about the reasons for not sending the report prior to 24.11.2001. It has further noted that in the 'Panchnama' of the deceased Mehroof, the crime was clearly mentioned along with the relevant sequence of crime. The trial Court has therefore, found that without recording the First Information Report on that very day, namely, 21.11.2001, the crime number could not have been mentioned in the 'Panchnama'.
18. In this context, when we refer to the decision relied upon by the learned counsel for the appellants, namely, Jang Singh 2000 Indlaw SC 3699 (supra), we find that this Court has noted the vitiating factors in the entire case of the prosecution, including the delay in sending the First Information Report to the Magistrate for which there was no explanation. By merely referring to the said factor along with the other serious defects noted by this Court, it was concluded that the case of the prosecution was not made out. We, therefore, do not find any scope to apply the said decision as a proposition of law in order to apply the same to the case on hand.
19. Per Contra, it will be appropriate to refer to a reasoned decision of this Court reported in Sandeep v. State of Uttar Pradesh - 2012 (6) SCC 107 2012 Indlaw SC 505, wherein this very Bench dealt with the implication of S. 157 Cr.P.C. and held as under in paragraph 32:
"It was also feebly contended on behalf of the appellants that the express report was not forwarded to the Magistrate as stipulated under S. 157 Cr.P.C. instantaneously. According to the learned counsel FIR which was initially registered on 17-11-2004 was given a number on 19-11-2004 as FIR No. 116 of 2004 and it was altered on 20- 11-2004 and was forwarded only on 25-11-2004 to the Magistrate. As far as the said contention is concerned, we only wish to refer to the reported decision of this Court in Pala Singh v. State of Punjab 1972 Indlaw SC 177 wherein this Court has clearly held that where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court then, however improper or objectionable the delay in receipt of the report by the Magistrate concerned be, in the absence of any prejudice to the accused it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.
Applying the above ratio in Pala Singh to the case on hand, while pointing out the delay in the forwarding of the FIR to the Magistrate, no prejudice was said to have been caused to the appellants by virtue of the said delay. As far as the commencement of the investigation is concerned, our earlier detailed discussion discloses that there was no dearth in that aspect. In such circumstances we do not find any infirmity in the case of the prosecution on that score. In fact the above decision was subsequently followed in Ishwar Singh v. State of U.P. 2007 Indlaw SC 727 and Subash Chander v. Krishan Lal 1999 Indlaw SC 1286."
We can also refer to a recent decision of this Court in Bhajan Singh @ Harbhajansingh and Ors. v. State of Haryana - (2011) 7 SCC 421 2011 Indlaw SC 524. Relevant paras 24 and 25 are as under:
" It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante- dated or investigation is not fair and forthright. Every such delay is not fatal unless prejudice to the accused is shown. The expression "forthwith" mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances.
In view of the above, we are in agreement with the High Court that there was no delay either in lodging the FIR or in sending the copy of the FIR to the Magistrate. It may be pertinent to point out that the defence did not put any question on these issues while cross-examining the investigating officer, providing him an opportunity to explain the delay, if any. Thus, we do not find any force in the submissions made by the learned counsel for the appellants in this regard."
Again in Shivlal & Another v. State of Chhattisgarh- AIR 2012 SC 280 2011 Indlaw SC 663, the significance and relevance relating to sending a copy of FIR to the Illaqa Magistrate has been explained as under in paragraph 15:
".........the Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159, Cr.P.C., if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante- timed or ante-dated or investigation is not fair and forthright. In a given case there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to Illaka Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case."
In the case on hand nothing was put to PW-13(Investigating Officer) as regards the alleged delay in sending the FIR to the Magistrate and or to any prejudice was caused to the appellants on that account. It would have enabled the Investigating Officer to explain the reason for the delay. In any event nothing has been shown as to any prejudice caused to the appellants on the ground of alleged delay in sending a copy of FIR to the Magistrate.
20. When we apply the above principle laid down in the said decision for the reasons to be adduced for the other questions to be dealt with in this judgment, we hold that there was no dearth in the process of investigation based on the factum of the alleged occurrence on 21.11.2001, as reported by the complainant PW-2 and the mere delay in forwarding of the express report to the Magistrate has not caused any dent in the case of the prosecution. In other words, we have no difficulty in stating that the FIR was factually recorded without delay and the investigation started on the basis of the FIR and in the absence of any other infirmity in that respect, the delay in forwarding the report to the Magistrate does not in any way vitiate the case of the prosecution.
21. With this we come to the next question. The submission on behalf of the appellants was that there was communal tension prevailing and, therefore, if in that milieu, someone was injured, those who were possessing licenced arms in the village cannot be held responsible, even if it resulted in the death of two individuals and injuries to several other persons. In support of the said contention, reference was made to the deposition of PW-13, the Investigating Officer. To a stray question put to him, PW-13 answered that;
"there had been gross tension present in the said village which had been communal in nature and scope thereof. I had neither recorded the time of commencement of any proceeding, in the said village nor, had I recorded culmination thereof, in the contents of leaflet No.1 of my Case Diary nor further, had I copied down the contents of the Inquest-Report [Panchaytnama], in the contents thereof."
22. Reference was also made to a suggestion made to the said witness, which was denied and the statement was to the following effect:
"It is also wrong and incorrect, to accordingly allege and consequently suggest, to the effect that, on account of the then prevailing communal tension, in the said village, subsequently in consultation of all licensed weapon-holders of the community of accused of the said village, the present accused, as a matter of fact, had since been implicated, in a belied manner, on account of undue pressure, in the present matter. However, this fact remains true and correct, to the effect that, except the licensed arm- holders belonging, to the community of accused, there was no other licensed arm-holder or, any other member, from their community present, at the said spot of occurrence."
23. Except making the said bald suggestion, which was rightly denied, there was nothing brought out or placed either in the evidence of the prosecution witness or by way of defence evidence before the court, as to what was the nature of communal tension, who were all communally and inimically disposed of and when such communal friction occurred. In fact, what all was stated in the S. 313 statement, was 'false implication' due to enmity and political reasons. Political difference and communal difference are two different factors and, therefore, it is not known why such a specific stand of communal tension was not taken in the S. 313 questioning. If really there was any communal tension in the village, there would have been any number of witnesses who would have come forward and stated the same before the Court, as none would have been prejudiced nor affected by making such a true statement before the Court. When we consider the oral evidence of PW-13, namely, that there had been gross tension present in the village, as there was nothing recorded in the police station, it will be a dangerous proposition if simply based on the said isolated statement, one were to conclude that the present occurrence and its aftermath were solely due to communal tension. It was not even suggested to any of the witnesses that there was communal hatred as between those witnesses examined in support of the prosecution or that it was due to such communal tension they suffered such injuries, as well as casualties in their family. In fact, we are of the view that there are too many incongruities in the said submission, inasmuch as the said submission is made in desperation and does not deserve any consideration. Therefore, the said submission is also liable to be rejected as meritless.
24. With this, we come to the last of the questions as to whether there were any lacunae in the case of the prosecution based on the submissions of the learned counsel. Before dealing with the submissions, we wish to note that though PWs-1 to 4 were closely related to the deceased, they also suffered fire-arm injuries at the hands of the appellants and the injuries sustained by them were duly supported by medical evidence, both documentary as well as oral, namely, through PWs-6, 7, 8 and 9. There was nothing pointed out in the evidence of the above witnesses, namely, PWs-1 to 4, except stating that since because they were closely related, their version about the occurrence was not true in order to discredit their version. Even before the Courts below the only argument made was that the said witnesses were related to the deceased and that they falsely implicated the appellants. In our considered opinion, merely based on such a flimsy submission as regards the credibility of those witnesses, the evidence of those injured eye witnesses cannot be discarded.
25. In fact with regard to the reliance to be placed upon the injured witnesses, this Court has held in very many decisions as to the due credence to be given. The following decisions can be referred to for that purpose:-
(1) State of Maharashtra v. Chandraprakash Kewalchand Jain -1990 (1) SCC 550 1990 Indlaw SC 661
(2) State of U.P. v. Pappu - 2005 (3) SCC 594 2004 Indlaw SC 1500
(3) State of Punjab v. Gurmit Singh - 1996 (2) SCC 384 1996 Indlaw SC 1087
(4) State of Orissa v. Thakara Besra - 2002 (9) SCC 86 2002 Indlaw SC 243
(5) State of H.P. v. Raghubir Singh - 1993 (2) SCC 622 1993 Indlaw SC 365
(6) Wahid Khan v. State of M.P. - 2010 (2) SCC 9 2009 Indlaw SC 1583
(7) Rameshwar v. State of Rajasthan - AIR 1952 SC 54 1951 Indlaw SC 24
Applying the principles laid down in those decisions, we hold that on this ground there is no scope to interfere with the orders impugned in these appeals.
26. It was thus contended that there was delay in filing the FIR. In fact going by the version of PWs-2 and 3 supported by PWs-1 and 4, the occurrence took place at 10 a.m. in the morning. The matter was reported by PW-2 to the police by 11.45 a.m. and it has come in the evidence that the distance between the place of occurrence and the police station was 12 Kms. There was nothing brought out on the defence to contradict the said statement made by the prosecution witnesses. It was also stated that PW-2 had to reach the police station only through a bullock cart. In such circumstances, the lodging of the FIR by 11.45 a.m., cannot be held to be highly delayed. When it is stated that the occurrence took place at 10 a.m., where more than ten persons suffered injuries and one person died on the spot and while another person died after three days, it is quite possible that every member of the injured party would have taken the immediate required time to attend to the injured, by moving them to the hospital and arranging the required transport for them, while also taking stock of the situation in order to proceed further for lodging the complaint with the police. That by itself would have taken not less than an hour for them and only thereafter, a decision might have been taken by PW-2 to go to the police station for lodging the FIR. Therefore, it can never be held that there was any delay at all in reporting the matter to the police, nor in registering the FIR.
27. It was contended that according to the prosecution when the accused party attacked the injured party apart from the family members of the injured party, local villagers were also present but yet, none was examined by way of independent witness. The said submission has been rightly rejected by the High Court by giving reasons. The High Court has rightly held that though the injured witnesses were related to each other, having regard to the nature of evidence tendered by them, there were no good grounds to discard their version. It has found that their evidence was natural and there was nothing to find fault with their version. It has further held rightly that it is the quality of the witness and not the quantity that matters. It has also taken judicial notice of the fact that the public are reluctant to appear and depose before the Court, especially in criminal cases because of many obvious reasons. We fully endorse the said conclusion of the High Court, while dealing with the said submission made on behalf of the appellants.
28. It was then contended that the investigating officer though visited the spot did not detect any empty cartridges or bullets. PW-13 in his evidence has stated that he had neither detected any empty cartridges nor any pellets on the spot of occurrence. If he had not detected it, then the reason is as simple as that. It is not the case of the appellants that pellets were strewn all around the place of occurrence visibly, but yet the investigating officer failed to collect and place even some of them before the Court. When there was enough evidence to support the version of the prosecution that the appellants, some of whom were in possession of licenced arms and others were holding unlicenced pistols and the shooting with those arms was sufficiently established by the version of the injured eye-witnesses, we fail to understand as to how non- detection of pellets or bullets will be of any consequence as a vitiating factor to defeat the case of the prosecution. It is an undisputed fact that both the deceased died of fire-arm injuries and all the injuries suffered by others were also firm-arm injuries. The said contention also therefore, deserves to be rejected.
29. The contention about not noting the route of arrival and route of escape, in our considered opinion, are very flimsy submissions and do not deserve any consideration at all. It was then contended that PW-3 was initially accosted by A1 to A-4 at around 8.30 to 8.45 a.m. and that he reported back at 9.00 to 9.15 a.m. at his house, by escaping from their clutches and that the alleged occurrence took place at 10 a.m. and, therefore, within such a short time, there could have been no scope for the appellants to gather fifteen persons to cause the attack on the injured party. We have concluded in the earlier part of our judgment that a one hour gap in a village was more than sufficient to gather any number of persons, especially when the purpose of such gathering was to cause a physical attack on a weak and unarmed party. It is relevant to note that while thirteen persons were seriously injured, of whom two succumbed to injuries, not even a scratch was reported against any of the appellants. There was not even a suggestion that any of the injured party was in possession of any weapon, like even a stick or a 'lathi'. Therefore, all the above factors only go to show that the plea of lack of sufficient time to gather more number of persons can hardly be a ground of defence, as against the overwhelming direct evidence present before the Courts below.
30. It will be relevant to take note of the alleged motive, which was not seriously disputed on behalf of the appellants. It was unfortunate that in spite of the fact that members of the injured party earnestly attempted to dissuade the situation by pacifying the appellants, no good sense appeared to have prevailed upon the appellants, who seem to have taken an upper hand and caused the onslaught on the unarmed members of the injured party, of whom one was a female. The submissions of the appellants, therefore, do not merit consideration on this ground as well.
31. A feeble submission was made that the FIR does not even reveal that PW- 2 was injured. On the other hand, a reading of the FIR discloses that PW- 2 specifically mentioned that he along with others was injured due to the onslaught of the appellants. Yet another feeble submission was that PW-3 stated that they were all standing outside the house at the time when the accused party approached the place of occurrence, while the case of the prosecution was that only after the arrival of the accused the members of the injured party came out of their house. We see absolutely no substance in the said submission as we do not find that such a silly discrepancy can cause any dent in the case of the prosecution, which is otherwise supported by overwhelming evidence, both oral as well as documentary.
32. On behalf of the first appellant in Criminal Appeal No. 1165 of 2008, it was contended that he belonged to a different village and that he was falsely implicated. In fact, the said contention was dealt with by the trial Court extensively, which has noted that the said accused claimed that he was the resident of the village Manduwala of District Saharanpur and that he was actually present at Saharanpur on that date. In the S. 313 statement, the said accused had admitted that he was 50 years old and at the time of the incident he would have been 46-47 years old, while the family register which was produced at his instance disclosed that his age was 38 years. The trial Court, therefore, held that by relying upon such an age old register, the abode of the said accused at the time of occurrence could not have been arrived at. On the other hand, the evidence of PW-1 disclosed that the father-in-law of the said accused is the resident of the village concerned, that since he had no male child, the said accused was living along with his father-in-law and that in the family register of the year 1999 produced by the prosecution, as well as the copy of the electoral list, the name of the said accused was clearly mentioned. The contention on behalf of the said accused that due to enmity with his father-in-law he was implicated, was rejected by saying that if that was the case, there was no reason for the prosecution to leave out the father-in-law and implicate the son-in-law alone. The said point raised on behalf of the said accused also, therefore, does not merit any consideration. We, therefore, hold that none of the points raised alleging lacunae in the case of the prosecution merit any consideration and the same are, therefore, rejected. The said question is also answered against the appellants.
33. With that we come to the main question as to the interpretation to be given to S. 141 'third', read along with Section 149, IPC. In the forefront, we wish to highlight the extent of power of this Court in the matter of interpretation of words in the provision of a statute. In this context, at the outset, we wish to quote the words of Justice G.P. Singh in the celebrated book on 'Principles of Statutory Interpretation', where the learned author in Chapter II under the caption 'Guiding Rules' in sub- para 1(d) stated as under, under the caption 'Departure from rule':-
"(d) Departure from the rule
In discharging its interpretative function, the Court can correct obvious drafting errors and so in suitable cases "the court will add words, or omit words or substitute words". But "before interpreting a statute in this way the Court must be abundantly sure of three matters : (1) the intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed." Sometimes even when these conditions are satisfied, the court may find itself inhibited from interpreting the statutory provision in accordance with underlying intention of Parliament, e.g. when the alteration in language is too far reaching or too big or when the subject matter calls for strict interpretation such as a penal provision." (See Inco Europe Ltd. v. First Choice Distribution (a firm) (2000) 2 ALL ER 109, p.115 (HL)"
(Emphasis added)
34. In the decision of this Court reported in Surjit Singh Kalra v. Union of India and another - 1991 (2) SCC 87 1991 Indlaw SC 1057, while laying down the principle of purposive construction to be adopted by Courts, it has been held as under in paragraph 20 and 21:-
" True it is not permissible to read words in a statute which are not there, but "where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words" (Craies Statute Law, 7th edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar 1988 Indlaw SC 423 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. (See: Sirajul Haq Khan v. Sunni Central Board of Waqf 1958 Indlaw SC 213.)"
35. The principle statute in Maxwell's Interpretation of Statutes under the Chapter "Exceptional Construction" is also relevant, which was applied in one of the judgments of this Court reported in Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. - 2008 (4) SCC 755 2008 Indlaw SC 415. The said principle has been extracted in para 53 of the said judgment, which reads as under:-
"In the chapter on "Exceptional Construction" in his book on Interpretation of Statutes, Maxwell writes:
"WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning."
36. Keeping the above basic principles in mind, we considered the submission of Shri S.R. Singh, learned senior counsel who appeared for the appellants in Criminal Appeal Nos.1157/2008, 1158/2008, 1161/2008 and 1164/2008. According to the learned counsel, u/s. 141 'third', the expression 'other offence' used therein for the purpose of ascertaining the common object of a person in an unlawful assembly, would only be relatable to offences similar to those such as, mischief or criminal trespass, referred to in the said clause. The learned senior counsel submitted that such an interpretation should be laid by applying the principle of ejusdem generis. The learned counsel, therefore, contended that if that be the legal position, reading Section 141'third' and Sections 147, 148 and 149 together, none of the offences referred to in Ss. 147 and 148 or any of the other grave offences falling under other provisions of the Indian Penal Code will get attracted. The learned counsel, therefore, contended that conviction for offences u/s. 302 read with Ss. 149 and 307 read with S. 149 IPC, as well as Ss. 147 and 148 of IPC with the aid of Section 141, could not have been made. Though the said submission looks quite attractive in the first blush, on a deeper scrutiny of the other provisions contained in the Code, we are afraid that such a narrow interpretation, which is sought to be applied by the learned senior counsel cannot be made.
37. In this context, S. 40 IPC, which defines 'offence' is also required to be noted. In order to appreciate the submission and to arrive at a correct conclusion, we feel that S. 40 IPC, Sections 141, 147, 148 and 149 are required to be extracted which are as under:-
"40. "Offence"- Except in the Chapters and sections mentioned in cls. 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code.
In Chapter IV, [Chapter VA] and in the following section, namely, sections [64,65,67,71], 109,110,112,114,115,116,117, [118,119,120] 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this code, or under any special or local law as hereinafter defined.
And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.
141. Unlawful assembly - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-
First- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
Second- To resist the execution of any law, or of any legal process; or
Third - To commit any mischief or criminal trespass, or other offence; or
Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth - by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
147. Punishment for rioting- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
148. Rioting, armed with deadly weapon- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence"
38. S. 141 'third', clearly mentions that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly as among other offences namely, mischief or criminal trespass or commission of other offence. A literal interpretation, therefore, only means that apart from the offence of mischief and criminal trespass, all other offences would fall within the said clause 'third' mentioned in S. 141. Other related sections falling under the said Chapter VIII are up to S. 160. Reading S. 141 'third' along with Section 149, if the commission of any other offence apart from mischief or criminal trespass and such commission of offence was by a member of an unlawful assembly, the prescription of common object will automatically get satisfied. When we refer to S. 144 in this context, we find that joining an unlawful assembly armed with a deadly weapon, which is likely to cause death, can be inflicted with a punishment prescribed therein. If the interpretation placed by learned senior counsel is accepted, we wonder whether the prescription placed in S. 144 could be held to be in consonance with s. 141 'third'. The definite answer can only be in the negative. If mere possession of a deadly weapon by a member of an unlawful assembly, which is likely to cause death would attract Section 141'third' as a corollary, it will have to be held that the expression 'or other offence' mentioned in S. 141 should without doing any violence to the said provision, include all other offences apart from the offence of mischief or criminal trespass. Similar will be the interpretation that can be made relating to the offence, namely, rioting prescribed u/s. 146 punishable under Ss. 147 as well as 148, namely, rioting, armed with deadly weapons.
39. The principle 'ejusdem generis' means 'where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed'. The learned senior counsel for the appellants, therefore, contended that since the expression "other offence" u/s. 141 'third' has been used along with the offence, mischief or criminal trespass, it can only relate to similar such offences of the same species and not commission of all other offences as in the case on hand, namely, murder or attempt to commit murder.
40. When we test the said submission by making reference to the Chapter, in which the offence of mischief and trespass are specified in the Code, we are able to expose the glaring fallacy in the submission of the learned senior counsel. Mischief and criminal trespass fall under Chapter XVII. The caption of the said Chapter is "of offences against property". The offences dealt with in the said Chapter are governed by Ss. 378 to 462. The offences dealt with apart from mischief and trespass are theft, extortion, robbery, dacoity, dacoity with murder, misappropriation of property, criminal breach of trust, dealing with stolen property and cheating.
41. While referring to the offence of mischief, Ss. 435 to 438 deals with mischief by fire or any explosive substance with the intent to destroy a house or other properties or to destroy or make unsafe a decked vessel etc., for which imprisonment for life or a term which may extend to ten years apart from fine can be imposed. While dealing with the offence of trespass u/ss. 449 and 450, whoever commits house- trespass for committing an offence punishable with death can be punished for imprisonment for life or rigorous imprisonment for a term not exceeding ten years, apart from fine. Similar such provisions for other types of criminal trespass have also been provided for in the said Chapter.
42. We fail to appreciate as to how simply because the offences mischief or criminal trespass are used preceding the expression "other offence" in S. 141 'third', it should be taken that such offence would only relate to a minor offence of mischief or trespass and that the expression "other offence" should be restricted only to that extent. As pointed out by us above, the offence of mischief and trespass could also be as grave as that of an offence of murder, for which the punishment of life imprisonment can be imposed as provided for under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of learned senior counsel for the appellants to import the principle of 'ejusdem generis' to S. 141 'third', cannot be accepted.
43. The submission of the learned senior counsel cannot also be countenanced by applying S. 40 of the Code, which specifically mentions as to how the term 'offence' will have to be construed. In the main clause of the said section it has been clearly set out that the word "offence" denotes a thing made punishable by this Code except the Chapters and Sections mentioned in cls. 2 and 3 of the said section. Therefore, going by the main clause of Section 40, the word "offence" since denotes the thing made punishable under the Code, 'other offence' mentioned in S. 141 'third', can only denote to offences, which are punishable under any of the provisions of the Code. Therefore, by applying the main clause of Section 40, it can be straight away held that all offences referred to in any of the provisions of the Code for which the punishment is provided for would automatically fall within the expression "other offence", which has been used in S. 141 'third'.
44. What has been excepted in the main clause of S. 40 are what has been specifically mentioned in sub-cls. 2 and 3 of the said section. As far as sub-cl. 2 is concerned, while making reference to Chapter IV and Chapter VA, as well as other sections mentioned therein, it states that the word "offence" would denote a thing punishable under the Code, namely, Indian Penal Code or under any special or local law, which have been defined to mean a law applicable to a particular subject or a law applicable only to a particular part of India. When we read sub-cl. 3 of Section 40, S. 141 has been specifically mentioned in the said sub-clause. To understand the purport of the said clause, it will be worthwhile to extract that part of the provision which reads;
"And in sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine".
45. It is quite apparent that the said sub-clause in regard to the offences under any special or local law, wherein punishment of imprisonment for a term of six months or upwards with or without fine is prescribed, the meaning assigned in those special or local laws are to be imported while invoking S. 141 or other sections mentioned in the said sub-cl. 3 of S. 40.
46. Therefore, a conspectus reading of S. 40 makes the position abundantly clear that for all offences punishable under the Indian Penal Code, the main clause of S. 40 would straight away apply in which event the expression "other offence" used in S. 141 'third', will have to be construed as any offence for which punishment is prescribed under the Code. To put it differently, whomsoever is proceeded against for any offence punishable under the provisions of the Indian Penal Code, S. 40 sub-cl. 1 would straight away apply for the purpose of construing what the offence is and when it comes to the question of offence under any other special or local law, the aid of sub-cls. 2 and 3 will have to be applied for the purpose of construing the offence for which the accused is proceeded against.
Therefore, having regard to sub-cl. 1 of S. 40 of the Code read along with S. 141 'third', the argument of learned senior counsel for the appellants will have to be rejected. We are, therefore, of the firm view that only such a construction would be in tune with the purport and intent of the law makers while defining an unlawful assembly for commission of an offence with a common object, as specified u/s. 141 of the Code. In the case on hand, since mo special law or local law was attracted and the accuses were charged only for the offence under the Indian Penal Code, S. 40(1) gets attracted along with S. 141 'third' IPC. Having regard to such a construction of ours on Section 141, read along with S. 40 IPC, the offence found proved against the appellants, namely, falling under Ss. 302 read with 149, 307 read with 149 along with 147 and 148 of the Code for which the conviction and sentence imposed by the Court below cannot be found fault with.
47. In the light of our above conclusions on the various submissions made by the counsel for the appellants, we do not find any merit in these appeals. The appeals, therefore, fail and the same are dismissed. Appellant Soma in Criminal Appeal No.1158/2008 who is on bail is directed to surrender before Magistrate forthwith for serving out the remaining period of sentence, if any, failing which the Chief Judicial Magistrate Haridwar is directed to take him into custody and send him to jail to serve out the sentence, if any. A copy of the judgment be sent to the said CJM by the Registry forthwith.
Appeals dismissed


Shyamal Saha and another v State of West Bengal
Supreme Court of India

24 February 2014
Cr.A. No. 1490 of 2008
The Judgment was delivered by : Madan B. Lokur, J.
1. This appeal questions the limits of interference by the High Court in an appeal against the acquittal of an accused by the Trial Court. In our opinion, the High Court ought not to have interfered in the appeal before it with the acquittal of the appellants by the Trial Court.
Facts:
2. The sequence of events, as it has unfolded from the evidence of the witnesses, is that on 19th May, 1995 a thermal plant of the Calcutta Electric Supply Company had opened across the river Ganges in Mauza Bhabanipur Char, District Hooghly, West Bengal.
3. Paritosh Saha was with his mother Bidyutprava Saha (PW-5) at about 5.00/5.30 p.m. on 19th May, 1995. Thereafter, he and his nephew Animesh Saha (CW-1) aged about 10 years went for a walk on the banks of the river Ganges where they met Gopal Saha, with whom they struck a conversation. At that time, the appellants Shyamal Saha and Prosanta @ Kalu Kabiraj also came there and called Paritosh to go across the river to see the Char (island). Animesh also expressed his desire to go to the Char but Shyamal asked him to return home.
4. When the three of them (Paritosh, Shyamal and Prosanta) were about to board Asit Sarkar's boat, they were joined by Dipak Saha (PW-6) and Panchu Sarkar (PW-11). The five of them then went across the river Ganges and, according to Animesh, when they reached the other side of the river, Dipak and Panchu went towards the thermal plant while Paritosh, Shyamal and Prosanta went in a different direction towards the jungle. Thereafter, Animesh came back to his house.
5. According to Bidyutprava Saha, at about 8.00 or 8.30 p.m. Shyamal and Prosanta came to her house and asked the whereabouts of Paritosh.
6. According to Paritosh's brother Amaresh Saha (PW-1) at about 10.00 p.m. Shyamal and Prosanta came to his house and enquired about Paritosh.
7. Early next morning on 20th May, 1995 Bidyutprava Saha noticed that Paritosh had not eaten his dinner which she had kept for him. She mentioned this to Amaresh and also informed him that Shyamal and Prosanta had come and met her the previous evening at about 8.00 or 8.30 p.m. During the course of this conversation, Animesh revealed to his father Amaresh that he had seen Paritosh cross the river Ganges the previous evening in a boat along with Shyamal and Prosanta.
8. On receiving this information Amaresh enquired from Shyamal and Prosanta the whereabouts of Paritosh but they informed him that they had seen him across the river with some boys. Later in the day, Amaresh was informed by Dipak and Panchu that they had crossed the river along with Paritosh, Shyamal and Prosanta. After crossing the river, Dipak and Panchu had gone to see the thermal plant and the others had gone in another direction towards the jungle. Dipak and Panchu pleaded ignorance of the subsequent movements of Paritosh.
9. Later in the evening at about 7.30 p.m. Amaresh Saha lodged a First Information Report regarding the disappearance of Paritosh.
10. Sometime in the morning of 21st May, 1995 the corpse of Paritosh was found in the river tied to two iron chairs with a napkin around his neck. The police were informed about the recovery of the dead body and an inquest was carried out and the iron chairs and napkin were seized in the presence of some witnesses. It was noticed that a part of Paritosh's skin was burnt perhaps due to pouring of acid.
11. On these broad facts, investigations were carried out and Shyamal and Prosanta were charged with having abducted Paritosh and thereafter having murdered him.
Decision of the Trial Court:
12. In its judgment and order dated 29th July, 1998 the Trial Court held that neither the charge of abduction nor the charge of murder was proved against Shyamal and Prosanta and therefore they were acquitted. Session Trial Case No. 21 of 1997 decided by the Additional Sessions Judge, Hooghly As far as the charge of abduction is concerned, that is not in issue before us and need not detain us any further.
13. The acquittal by the Trial Court was primarily in view of the absence of consistency in the testimony of Amaresh, Bidyutprava Saha, Animesh, Dipak and Panchu. For example, it was observed that if Animesh had in fact informed Amaresh and Bidyutprava Saha that he had gone to the banks of the river with Paritosh, it would have been reflected in their testimony. Similarly, Bidyutprava Saha did not say anything about Paritosh going to the river although she saw him at about 5.00 or 5.30 p.m. on 19 th May, 1995.
The Investigating Officer, Sub-Inspector Debabrata Dubey (PW-16) had yet another version of the events. His testimony indicated that many of the facts stated in the oral testimony of the witnesses were not put across to him at any time, suggesting considerable padding and embellishments in their testimony. As such, it was not possible to lend credence to the testimony of the prosecution witnesses and the accused were entitled to the benefit of doubt. Additionally, the Trial Court noted that it was a case of circumstantial evidence and also that there was no motive for Shyamal and Prosanta to have murdered Paritosh.
Decision of the High Court:
14. Feeling aggrieved by their acquittal, the State preferred an appeal before the Calcutta High Court against Shyamal and Prosanta. The appeal was allowed by a judgment and order dated 11th March, 2008. State of West Bengal v. Shyamal Saha and another, 113 CWN 5052008 Indlaw CAL 413 The decision of the Trial Court was reversed and they were convicted for the murder of Paritosh and sentenced to imprisonment for life and a fine of Rs.5000/- each and in default of payment to undergo rigorous imprisonment of one year each.
15. According to the High Court, the case of the prosecution hinged, essentially, on the evidence of Dipak and Panchu, as well as of Animesh. The High Court considered their evidence and held that all five (Dipak, Panchu, Paritosh, Shyamal and Prosanta) crossed the river in a boat in the evening at about 5.30 p.m. on 19th May, 1995. This was supported by the testimony of Animesh who also wanted to go along with all of them but was prohibited from doing so by Shyamal.
16. It was also held, on the basis of the post mortem report given by Dr. P.G. Bhattacharya (PW-15) and his testimony that Paritosh died soon after 5.30 p.m. on 19th May, 1995. The High Court came to this conclusion on the basis of the doctor's statement that the death took place between 65 and 70 hours before he conducted the post mortem examination. Since the post mortem examination was conducted at about 12.00 noon on 22nd May, 1995 working backwards, it appeared that Paritosh died soon after 5.30 p.m. on 19th May, 1995.
17. Finally, the High Court held that Paritosh was last seen with Shyamal and Prosanta and therefore they had to explain the events that had occurred after they were last seen together. In the absence of any explanation offered by them, the last seen theory would apply and it must be held that Shyamal and Prosanta had murdered Paritosh.
Discussion on the law:
18. Aggrieved by their conviction and sentence, Shyamal and Prosanta have preferred this appeal. The primary submission made on their behalf was to the effect that the High Court ought not to have interfered in the acquittal by the Trial Court particularly, in a case of circumstantial evidence. It was also submitted that the evidence on record points to the fact that they were made scapegoats by the prosecution. Of course, this was opposed by learned counsel for the State.
19. The crucial issue for consideration, therefore, relates to interference by the High Court in an acquittal given by the Trial Court. Recently, in Joginder Singh v. State of Haryana, 2013 Indlaw SC 703 it was held, after referring to Sheo Swarup v. King Emperor, AIR 1934 PC 227 1934 Indlaw PC 30 that
"Before we proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record, it is fruitful to recapitulate the law enunciated by this Court pertaining to an appeal against acquittal. In Sheo Swarup 1934 Indlaw PC 30 (supra), it has been stated that the High Court can exercise the power or jurisdiction to reverse an order of acquittal in cases where it finds that the lower court has "obstinately blundered" or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice" or has in some other way so conducted or misconducted himself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result."
Unfortunately, the paraphrasing of the concerned passage from Sheo Swarup 1934 Indlaw PC 30 gave us an impression that the High Court can reverse an acquittal by a lower court only in limited circumstances. Therefore, we referred to the passage in Sheo Swarup 1934 Indlaw PC 30 and find that what was stated was as follows:
"There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has "obstinately blundered," or has "through incompetence, stupidity or perversity" reached such "distorted conclusions as to produce a positive miscarriage of justice," or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result."
The legal position was reiterated in Nur Mohammad v. Emperor, AIR 1945 PC 151 1945 Indlaw PC 46 after citing Sheo Swarup 1934 Indlaw PC 30 and it was held:
"Their Lordships do not think it necessary to read it all again, but would like to observe that there really is only one principle, in the strict use of the word, laid down there; that is, that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed."
We are mentioning this only to dispel the possibility of anyone else getting an impression similar to the one that we got, though nothing much turns on this as far as this case is concerned.
20. The entire case law on the subject was discussed in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 2007 Indlaw SC 121 beginning with perhaps the first case decided by this Court on the subject being Prandas v. State., AIR 1954 SC 36 1950 Indlaw SC 66 It was held in Chandrappa as follows:
"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. The principles laid down in Chandrappa were generally reiterated but mainly reformulated in Ganpat v. State of Haryana, (2010) 12 SCC 59 2010 Indlaw SC 790 though without reference to Chandrappa and by referring to decisions not considered therein. The reformulation of the principles in Ganpat is as follows:
"(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Madan Lal v. State of J & K (1997) 7 SCC 677 1997 Indlaw SC 1460, Ghurey Lal v. State of U.P. (2008) 10 SCC 450 2008 Indlaw SC 1197, Chandra Mohan Tiwari v. State of M.P. (1992) 2 SCC 105 1992 Indlaw SC 1272 and Jaswant Singh v. State of Haryana (2000) 4 SCC 484 2000 Indlaw SC 254)"
22. Undoubtedly, we are suffering from an overdose of precedents but be that as it may, from the principles laid down, it appears at first blush that the High Court is entitled to virtually step into the shoes of the Trial Court hearing submissions of learned counsel and then decide the case as a court of first instance. Perhaps this is not what is intended, notwithstanding the broad language used in Chandrappa and Ganpat. Otherwise, the decision of the Trial Court would be a meaningless exercise and this Court would become a first appellate court from a decision of the High Court in a case of acquittal by the Trial Court. Realistically speaking, although the principles stated are broad, it is the obligation of the High Court to consider and identify the error in the decision of the Trial Court and then decide whether the error is gross enough to warrant interference.
The High Court is not expected to merely substitute its opinion for that of the Trial Court only because the first two principles in Chandrappa and Ganpat permit it to do so and because it has the power to do so - it has to correct an error of law or fact significant enough to necessitate overturning the verdict of the Trial Court. This is where the High Court has to exercise its discretion very cautiously, keeping in mind the acquittal of the accused and the rights of the victim (who may or may not be before it). This is also where the fifth principle laid down in Chandrappa and Ganpat comes into operation.
Discussion on facts:
23. Looked at from this perspective, it was submitted by learned counsel for the State that there cannot be two reasonable views of the events that took place. It was submitted that there was no doubt that Paritosh crossed the river Ganges with Shyamal and Prosanta and they went to a secluded and uninhabited place across the river. This was witnessed by Dipak, Panchu and Animesh. Paritosh then went missing and his corpse was found a couple of days later. It was submitted that on these facts there can be only one conclusion, namely that Shyamal and Prosanta caused the death of Paritosh.
24. In this context, the evidence of Dipak, Panchu, Animesh and the Investigating Officer assumes significance. Disputing the testimony given by Dipak and Panchu in Court, the Investigating Officer stated that when they were examined u/s. 161 of the Criminal Procedure Code they neither told him that they had gone to the opposite side of the river nor that Shyamal and Prosanta had gone with Paritosh towards the jungle.
There was also no mention of the attendance of Animesh or the dress worn by Paritosh. In other words, they did not mention any of the events said to have taken place in their presence on the evening of 19th May, 1995. From this, it is quite clear that the subsequent statements made by them on oath appear to be add-ons and make believe. This casts serious doubt on their credibility.
25. An independent witness Swapan Kabiraj (PW-8) who is supposed to have seen Dipak, Panchu, Paritosh, Shyamal and Prosanta board the boat to cross the river, turned hostile and denied having made any statement before the Investigating Officer. Snehalata Sarkar (PW-7), wife of the boat owner Asit Sarkar also turned hostile and stated that their boat was, as usual, tied to the ghat and she could not say whether it was taken by any person on that date.
26. However, what is even more important is that Animesh stated in Court that on the morning of 20th May, 1995 he had told his father Amaresh and Bidyutprava Saha that he had seen the abovementioned five persons cross the river in a boat the previous evening. He also stated that he was taken by Amaresh to the police station and he had even mentioned this to the police. However, Amaresh does not depose anything about having taken Animesh to the police station. The Investigating Officer deposed that Animesh had not been cited as a witness and "had it been known to me that Animesh is a material witness who saw the victim together with the accused, during investigation, he would have been cited as a witness in the charge sheet". Therefore, the possibility of Animesh having been tutored cannot be completely ruled out.
27. It is clear that there is considerable padding in the testimony of the three crucial witnesses namely, Dipak, Panchu and Animesh and there are unexplained additions made by them. In this state of the evidence on record, the Trial Court was entitled to come to a conclusion that the prosecution version of the events was doubtful and that Shyamal and Prosanta were entitled to the benefit of doubt and to be acquitted.
28. We also find from the record that a number of independent witnesses have turned hostile and, as mentioned above, three important witnesses have added much more in their oral testimony before the Court than what was stated before the Investigating Officer during investigations. and came to the conclusion that they had crossed the river along with Paritosh, Shyamal and Prosanta.
However, the High Court did not take into consideration the view of the Trial Court, based on the evidence on record, that it was doubtful if the five persons mentioned above boarded the boat belonging to Asit Sarkar to cross the river as alleged by the prosecution. The High Court also did not consider the apparently incorrect testimony of Animesh who had stated that he had gone to the police station and given his version but despite this, he was not cited as a witness. The version of Animesh was specifically denied by the Investigating Officer.
29. When the basic fact of Paritosh having boarded a boat and crossing the river with Shyamal and Prosanta is in doubt, the substratum of the prosecution's case virtually falls flat and the truth of the subsequent events also becomes doubtful. Unfortunately, the High Court does not seem to have looked at the evidence from the point of view of the accused who had already secured an acquittal. This is an important perspective as noted in the fourth principle of Chandrappa. The High Court was also obliged to consider (which it did not) whether the view of the Trial Court is a reasonable and possible view (the fifth principle of Chandrappa) or not.
Merely because the High Court disagreed (without giving reasons why it did so) with the reasonable and possible view of the Trial Court, on a completely independent analysis of the evidence on record, is not a sound basis to set aside the order of acquittal given by the Trial Court. This is not to say that every fact arrived at or every reason given by the Trial Court must be dealt with - all that it means is that the decision of the Trial Court cannot be ignored or treated as non-existent.
30. What is also important in this case is that it is one of circumstantial evidence. Following the principles laid down in several decisions of this Court beginning with Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116 1984 Indlaw SC 432 it is clear that the chain of events must be so complete as to leave no room for any other hypothesis except that the accused were responsible for the death of the victim.
This principle has been followed and reiterated in a large number of decisions over the last 30 years and one of the more recent decisions in this regard is Majenderan Langeswaran v. State (NCT of Delhi) and Another. (2013) 7 SCC 192 2013 Indlaw SC 374 The High Court did not take this into consideration and merely proceeded on the basis of the last seen theory.
31. The facts of this case demonstrate that the first link in the chain of circumstances is missing. It is only if this first link is established that the subsequent links may be formed on the basis of the last seen theory. But the High Court overlooked the missing link, as it were, and directly applied the last seen theory. In our opinion, this was a rather unsatisfactory way of dealing with the appeal.
32. Under the circumstances, we are unable to agree with learned counsel for the State and are of the opinion that there was really no occasion for the High Court to have overturned the view of the Trial Court which was not only a reasonable view but a probable view of the events.
33. Learned counsel for Shyamal and Prosanta raised some issues such as the failure of the prosecution to examine Gopal Saha and Asit Sarkar. He also submitted that there was no motive for Shyamal and Prosanta to murder Paritosh. In the view that we have taken, it is not necessary to deal with these submissions.
34. Learned counsel for the State relied on the evidence of Dr. Bhattacharya to submit that Paritosh died between 65 and 70 hours before the post mortem examination was conducted. As observed by High Court, this placed Paritosh's death soon after 5.30 p.m. on 19th May, 1995.
The significance of this is only with respect to the time of death and has no reference to the persons who may have caused the death of Paritosh. The evidence of Dr. Bhattacharya, therefore, does not take the case of the State any further.
Conclusion:
35. The view taken by the Trial Court was a reasonable and probable view on the facts of the case. Consequently, there was no occasion for the High Court to set aside the acquittal of Shyamal and Prosanta. Accordingly, their conviction and sentence handed down by the High Court is set aside. Their appeal against their conviction and sentence is allowed.
Appeal allowed


Ramprasad and Others v State of Maharashtra
Supreme Court of India

12  May  1999
Criminal Appeal No. 592 of 1994 Etc
The Judgment was delivered by : K. T. Thomas, J.
1.  These appeals relate to a case of mercenary killing. Though the principal target of the killers was one Ram Kishore Somani @ Ramu they could kill only his younger brother Ashok Somani, who, per chance was with his elder brother then, due to his jinxed destiny. Nevertheless they succeeded in brutally mangling the targeted person inflicting a lot of injuries on him, some of them near fatal. As he survived such injuries he appeared in the trial court to tell the tale.
2.  If the story is true, the intrigue was hatched, ironically, at the precincts of a court of law and its finale was staged on a public road near the Employment Exchange Office at Amravati (Maharashtra). Ten persons, in all, were charge-sheeted by the police in connection with the said case, out of which one Anil Chaudhary (PW.2) was granted pardon as he turned an approver. Four of the remaining alone were convicted and all the rest were acquitted by the trial court.
3. The State appealed against the acquittal and the convicted accused appealed against their conviction and sentence. During the pendency of the appeal A.2Ram Kishore Yadao the kingpin  died and the appeal as against him got abated.
4.  A Division Bench of the High Court of Bombay (Nagpur Bench) confirmed the acquittal of A.9-Rajendra and also the conviction and sentence passed on the four accused. But the High Court reversed the acquittal of A.1-Gopal Maharaj and A.4-Ram Prasad Yadao and they too were convicted under Section 302 IPC read with Sections 109 and 150 IPC and also to a few other lesser offences. They were sentenced to imprisonment for life on the main offence, and to lesser terms of imprisonment for the lesser offences.
5.  A synopsis of the case is this: Ram Kishore Somani @ Ramu Somani(PW.1) and his brother Ashok Somani (deceased) were doing cloth business at Amravati. A.1-Gopal Maharaj contested as a candidate for the Municipal election in 1986 from the same Ward in which PW.1-Ramu Somani also contested as a candidate.
6. The contest burgeoned ill-feeling which, by course of time, snowballed into deep-rooted rancour and it escalated to its zenith when he decided to go forward for the liquidation of his rival Ramu Somani. He sought the assistance of A.2 Ram Kishore Yadao who was leader of a gangster-gang. As A.2-Ram Kishore Yadao was already in jail in connection with a criminal case, A.1-Gopal Maharaj went to the court of the Judicial Magistrate of First Class (Amravati) where A.2-Ram Kishore Yadao was expected to be produced from jail in connection with that criminal case. A.1-Gopal Maharaj impressed upon A.2-Ram Kishore Yadao that it was PW.1 who made all efforts to see that A.2 was not enlarged on bail. He then requested A.2 to liquidate PW.1-Ramu Somani. However, he cautioned PW.1 that it was not easy to finish him off since he was always guarded and was constantly moving around escorted by bodyguards. A.1-Gopal Maharaj suggested to liquidate the bodyguards also so that there would be no eye-witness to speak about the murder.
7.  The above talk was again repeated on 10.12.1987 at the same place. The only addition then was the presence of A.4-Ram Prasad Yadao who is the brother of A.2-Ram Kishore Yadao. A.4-Ram Prasad Yadao told his henchmen-gangsters to do the needful and offered himself to be arrested in the meanwhile in connection with some petty case, so that no penumbra of suspecian would fall on A.2 and A.4. It was thought that, as the mercenaries are unacquainted to the targeted persons, the operation of killing can be carried out without much risk.
8.  A.2 and A.4 wanted their henchmen to liquidate Ramu Somani. On 12.12.1986, A.4-Ram Prasad Yadao managed to get himself arrested on some petty case concocted at his instance. But A.4-Ram Prasad Yadao exhibited his anxiety as to why Ramu Somani was not killed even after A.4 got himself behind the bar. He threatened his henchmen with another murder, should the assignment for Ramu Somanis liquidation was not implemented without any further delay.
9.  Six accused persons (A.5-Baba Swami @ Vinit, A.6Anil Motiram Dhote, A.7-Raju @ Mitun Galhot and Pramod Ingale) along with Anil Chaudhary (PW.2) went on a prowl for the target. Though Ramu Somani was spotted by them around 3 P.M. on 15.12.1987 they could not reach him as he got perched in his house in the meantime. But it was only a short-lived safety.
10.  Around 4 P.M. on 15.12.1987, Ramu Somani went out of the house without having any foreboding of the slinking marauders, he was on the pillion seat of a scooter ridden by his younger brother Ashok Somani. As they reached near the office of Employment Exchange, all the assailants waylaid them and a massive onslaught was launched on them with deadly weapons. When the gangsters saw that their victim was very grievously mauled they fled from the place.
11.  Both the injured were removed to the hospital as both sustained many serious injuries. Dying Declarations of both were recorded by a Judicial Magistrate (PW.16). On the same night Ashok Somani succumbed to the injuries, but Ramu Somani registered progress in the healing process and eventually he was discharged from the hospital.
12.  All the accused were arrested, different accused on different dates, and some weapons were recovered from a well situated near the house of PW.2 Anil Chaudhary. He was arrayed as accused No.8. He gave a confessional statement to the Chief Judicial Magistrate and on 11.3.1988 pardon was tendered to him and he was made an approver.
13.  The roles ascribed to A.5-Baba Swami, A.6-Anil Dhote, A.7-Raju Galhot and A.10-Pramod Ingale besides PW.2-Anil Chaudhary as assailants in the occurrence, were spoken to by PW.1-Ramu Somani and PW.2-Anil Chaudhary in full measure. The trial court and the Division Bench of the High Court have chosen to act on their evidence and found them guilty of the offences.
14.  There is no dispute now that PW.1-Ramu Somani and deceased Ashok Somani sustained very serious injuries at the place and at the time mentioned by the prosecution. The only point of dispute, on that aspect, was regarding the identity of the assailants. PW.2-Anil Chaudhary has narrated the story, including the incident on 15.12.1986 with all vivid details. PW.1-Ramu Somani also narrated the incident with full particulars, though he could identify only A.5, A.6, A.7, and PW.2 among the assailants. It is no matter that PW.1 could not identify A.10 as his participation in the occurrence was effectively vouchsafed by the evidence of PW.5-Avinash. Testimony of PW.4-Balaji Bobde affords additional evidence regarding the participation of A.5-Baba Swami and A.7-Raju Galhot.
15.  Ext. 52 is the Dying Declaration made by PW.1Ramu Somani, which was recorded by a Judicial Magistrate (PW.16). Both the trial court and the High Court counted Ext.52 as a piece of evidence. Shri R.S. Lambat, learned counsel contended that both courts have gone wrong in treating Ext.52 as evidence because the person who gave that statement is not dead and hence it could not fall under Section 32 of the Evidence Act. Counsel further contended that even otherwise Ext.52 could only have been used to contradict PW.1 as provided in Section 162 of the Code of Criminal Procedure (for short the Code) as it was a statement recorded during investigation.
16.  We are in full agreement with the contention of the learned counsel that Ext.52 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. At the time when PW.1 gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.
17.  Be that as it may, the question is whether the court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a magistrate is not affected by the prohibition contained in the said Section.
18. A magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.
19.  In Maqsoodan and ors. v. State of U.P. (AIR 1983 SC 126) 1982 Indlaw SC 152 a three-Judge Bench of this Court has stated the legal position thus:
20.  When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of Evidence Act. In the instant case, the makers of the statements Exts.Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in Court.
21.  So we repel the contention of the learned counsel that Ext. 52 cannot be used for corroborating the testimony of PW.1. Nothing could be shown to discredit his testimony. He, being the injured, seems to be the most natural witness to speak to the occurrence. When PW.1 pointed out PW.2 as one of the assailants, we have no difficulty in believing that PW.2-Anil Chudhary had witnessed everything which occurred when the victims were showered with lethal blows, besides himself also participating along with other assailants.
22.  We, therefore, find no reason to interfere with the concurrent finding that A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10 Pramod Motiram Ingale were active participants in the occurrence in which deceased and PW.1 Ramu Somani were violently attacked.
23.  While dealing with the appeals concerning A.1Gopal Maharaj and A.4-Ram Prasad Yadao we are to point out that their conviction depends entirely on the testimony PW.2-Anil Chaudhary. The Division Bench of the High Court placed full reliance on his evidence. Though there is no legal hurdle against acting on the testimony of an accomplice it is well-nigh settled that it would be imprudent to base a conviction on such testimony unless it is corroborated in material particulars. Hence PW.2s evidence has to pass the test of reliability and must secure adequate corroboration before the same can be acted upon, in so far as A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are concerned.
24.  PW.2-Anil Chaudhary said that on 4.12.1987 he too was present at the court premises when A.1-Gopal Maharaj conversed with A.2-Ram Kishore Yadao regarding the necessity to exterminate Ramu Somani. PW.2-Anil Chaudhary also said in his evidence that on 10.12.1987, A.1-Gopal Maharaj repeated the same conversation to A.2-Ram Kishore Yadao. To corroborate the aforesaid version prosecution examined PW.11Yusufkhan and PW.17-Kishan Jamu Goyal. The former has stated that he was present at the court premises on 4.12.1987 and saw A.1-Gopal Maharaj, A.2-Ram Kishore Yadao and others were talking with each other. The other witness said that on 10.12.1987 he saw those persons conversing together. But neither of them could hear what they were talking about. Criminal liability can be fastened with A.1-Gopal Maharaj only if the words attributed to him by PW.2 have assurance from other sources. The mere fact that A.1-Gopal Maharaj was found talking with A.2 is hardly sufficient to elicit such an assurance.
25.  Shri V.B. Joshi, learned counsel for the State candidly admitted before us that there is no other evidence or material to corroborate the testimony of PW.2 regarding the involvement of A.1-Gopal Maharaj in the crime. No other circumstance has been brought to our notice. Nor is there any material to show that A.1-Gopal Maharaj did anything for bailing out any of the assailants, nor that he expended any money for the defence of the said persons at any stage.
26.  Thus we are unable to uphold the conviction of A.1-Gopal Maharaj as the testimony of PW.2-Anil Chaudhary against him remained uncorroborated.
But the position regarding A.4-Ram Pradad Yadao is different.
27. The role attributed to him by PW.2-Anil Chaudhary is that on 10.12.1987 A.4-Ram Prasad Yadao told the assailants to go ahead with the operation for annihilation of Ramu Somani and that himself would, in the meantime, go behind bars so that no suspicion would arise against him also. PW.2-Anil Chaudhary said that it was A.4-Ram Prasad Yadao who supplied all the weapons to the assailants for carrying out the operation for annihilation of Ramu Somani. PW.2-Anil Chaudhary further said that true to his statement A.4Ram Prasad Yadao got himself arrested on the succeeding day and when the witness visited A.4 at the Executive Magistrate Court premises he was abused by A.4 for the delay in carrying out the operation. According to PW.2-Anil Chaudhary he complained to A.2Ram Kishore Yadao regarding the aforesaid conduct of A.4-Ram Prasad Yadao and then A.2 warned him that A.4Ram Prasad might even go to the extent of slaying the assailants after coming out of jail if they fail to carry out the operation.
28.  Learned counsel for the appellant pointed out that PW.2 in cross-examination has said that he did not disclose to any body earlier that A.4 supplied the weapons of offence. So we are not inclined to accept that part of his testimony, whether it is true or not. That apart, how far the said testimony of PW.2-Anil Chaudhary regarding the other part of the involvement of A.4-Ram Prasad be acted on as true?
29.  The confessional statement given by Pw.2 to the Magistrate before pardon was tendered to him, is projected as a material for corroboration. Though legally it can be used as a corroborative material we are not disposed to attach great weight to it since it is only the former statement of an accomplice.
30.  Learned counsel for A.4 Ram Prasad pointed out that PW.2 himself admitted that when he was questioned by the police he did not speak anything about A.4. But that is not of much use now because PW.2 was questioned by the police as an accused, and then he would not have divulged the truth. It was later that he changed his mind and offered to confess the entire truth. In the confession he implicated himself and others. So the fact that he did not divulge the whole truth at the outset when he was questioned by the police is not of much consequence. That aspect only goes along with the inherent weakness of the testimony of any approver.
31.  PW.17-Kishan Jamu Goyal was a detenue during December 1987. He said in his evidence that he was on the court verandah on 10-12-1987 along with A.2-Ram Kishore Yadao and then he saw A.2 talking with the assailants. As we have pointed out, while dealing with the case of A.1-Gopal Maharaj, corroboration provided by the evidence PW.17-Kishan Jamu Goyal is not sufficient to ensure confidence in judicial mind about the truth of PW.2s testimony. It may be one circumstance, but we require more circumstances to assure that PW.2 spoke the truth in the court.
32.  There is one circumstance which is reasonably sturdy to corroborate the evidence of PW.2-Anil Chaudhary regarding his accusation against A.4-Ram Prasad Yadao. Ext.170 is a police report showing that a petty case was registered by the police against A.4Ram Prasad Yadao and he was taken into custody by the police on 12.12.1987. PW.29 Head Constable testified that a person by name Vilas Mulatkar went to the police station with a complaint that A.4-Ram Prasad Yadao created unruly scene under the influence of alcohol in a public place, and that a case was registered against him under Section 151 of the Code and he was interned in the lock-up on 12.12.1987.
33.  The fact that A.4 was so arrested on 12.12.1987 is not disputed. The contention is that A.4 was released on bail even prior to the incident in the case and hence his arrest is of no use in this case. That might be so, and we are not at the question whether he should have continued in jail till the occurrence was over. We are scrutinizing the evidence of PW.2, and ascertain the extent it has been corroborated by other evidence. In that scrutiny we notice that the arrest of A.4 on 12.12.1987 is a circumstance which corroborates the testimony of PW.2.
34.  Another item of evidence noticed as of corroborative value is the testimony of PW.3. He was a boy aged 17, who was then a student. He deposed that he too had connections with A.2-Ram Kishore Yadao. On 15.12.1987, at about 1.30 P.M. while he was standing at Duffarin bus stop along with A.5 and A.10, some others including A.4 and A.6 and then A.7 joined them and PW.2 also came later. A.4 was heard saying to them you carry out the work assigned and do not bother about consequences, and A.4 assured them that he would bear all the expenses. Next day of the occurrence, A.6-Anil Dhote sent PW.3-Sudir Pohokar to the house of A.4-Ram Prasad Yadao to collect some money. PW.3 went to A.4 and collected some money from him and then A.4 told him that the police was suspecting him and hence he would be able to supply further fund only later. This is the substance of what PW.3 said regarding the role of A.4-Ram Prasad.
35.  The aforesaid evidence of PW.3 is a further item to lend assurance regarding the involvement of A.4-Ram Prasad in the murder case. Of course, this was not counted by the High Court but that does not matter much. We are now at the question as to what extent the evidence of PW.2-Anil Chaudhary can be acted on. We feel assured from the circumstances enumerated above that the evidence of PW.2 in so far as he implicated A.4-Ram Prasad with this murder can be accepted as true.
36.  When we record our finding against A.4-Ram Prasad we are also obliged to record our gratitude to Shri R.S. Lambat (learned counsel who argued for A.4) for the able assistance he provided to the accused with the thorough and deep study he made with the facts and evidence in this case. In the result the appeals filed by A.5-Baba Swami, A.6-Anil Motiram Dhote, A.7-Raju Galhot and A.10-Pramod Motiram Ingale are dismissed. But we allow the appeal filed by A.1-Gopal Maharaj, and set aside the conviction and sentence passed on him by the High Court. His bail bond will stand discharged. However, we confirm the conviction and sentence passed by the High Court on A-4 Ramprasad Yadao and dismiss his appeal. We direct the Sessions Judge, Amaravati to take prompt and necessary steps to put him in jail for undergoing the remaining portion of the sentence.
Appeal allowed