Himachal
Pradesh High Court
Shyam
Lal And Ors. vs State Of H.P. on 1 January, 2002
Equivalent
citations: 2002 CriLJ 3178
Author:
L S Panta
Bench:
L S Panta, A K Goel
JUDGMENT
Lokeshwar
Singh Panta, J.
1.
Both these appeals have been filed against the judgment and order
dated 30-6-2000 passed by Addl. Sessions Judge, Solan in Sessions
trial No. 4-S/7/97. By the impugned judgment and order, out of 24
accused, the Addl. Sessions Judge convicted A-1 Shayam Lal, A-2 Ram
Das, A-3 Hans Raj and A-15 Manoj Kumar for various offences as under
:
1.
A-1 Shayam Lal
(a)
under Section 452, IPC and is sentenced to undergo simple
Imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more;
(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year more and;
(c)
under Section 323, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo simple imprisonment for one year.
2.
A-2 Ram Dass
(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :
(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and;
(c)
under Section 323, IPC, for causing injuries to deceased Guddu Ram
and is sentenced to undergo simple imprisonment for. one year.
3.
A-3 Hans Raj
(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :
(b)
under Section 302, IPC for causing the death of Guddu Ram and is
sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and;
(c)
under Section 323, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo simple imprisonment for one year.
4.
A-15 Manoj Kumar.
(a)
under Section 452, IPC and is sentenced to undergo simple
imprisonment for five years and to pay fine of Rs. 5,000/-, in
default of payment of fine to undergo simple imprisonment for six
months more :
(b)
under Section 302, IPC for causing injuries to deceased Guddu Ram and
is sentenced to undergo imprisonment for life and to pay fine of Rs.
10,000/-, in default of payment of fine to undergo simple
imprisonment for one year and (c) under Section 323, IPC for causing
injuries to deceased Guddu Ram and is sentenced to undergo simple
imprisonment for one year.
2.
They were acquitted for offences under Sections 147, 148 and 149 of
the Indian Penal Code. All the sentences imposed upon them shall run
concurrently.
2A.
A-4 Bhupender Kumar, A-5 Susheel Kumar, A-6 Sudhir Kumar, A-7
Rajinder Kumar, A-8 Jai Pal, A-9 Suresh Kumar, A-10 Rakesh Kumar,
A-11 Kuldeep Chand, A-12 Kamaljeet, A-13 Ramesh Chand, A-14 Ashok
Kumar, A-16 Smt. Sheela Devi, A-17 Smt. Shobha Devi, A-18 Ram Kali,
A-19 Sewati Devi, A-20 Smt. Reeta Devi, A-21 Smt. Shyama, A-22 Smt.
Roop Dei, A-23, Smt. Ram Dei and A-24 Smt. Sampati Devi were
acquitted under Sections 147, 148, 149,452, 302 and 323 of Indian
Penal Code.
3.
Against the said judgment and order A-1 Shayam Lal, A-2 Ram Dass, A-3
Hans Raj and A-15 Manoj Kumar have preferred Criminal No. 364/2000.
4.
The State has preferred Criminal Appeal No. 558/2000 against the
acquittal of A-1, A-2, A-3 and A-15 under Sections 147, 148 and 149,
IPC and against remaining 20 accused under Sections 147, 148, 149,
452, 302 and 323, IPC.
5.
It was the prosecution version that on 21-6-1994 at about 11-30 a.m.
at village Badhol, in Tehsil Kasauli, District Solan 24 accused
persons constituted unlawful assembly and in prosecution of common
object of their unlawful assembly they assaulted Guddu Ram son of
Nakhru Ram with deadly weapons like stones and 'Dandas' and in
prosecution of that common object committed the offences of rioting,
house-trespass by entering into the dwelling house of Guddu Ram,
having made preparation to cause hurt to him and committed his
murder. All the accused persons also caused injuries to Smt. Kalawati
(PW-13) wife of Guddu Ram; Krishan Kumar (PW-14) son of Guddu Ram and
one Smt. Krishna Devi. Sohan Lal (PW-12) son of Guddu Ram reported
the incident to Police at Police Post Kuthar vide rapat roznamcha No.
8 dated 21-6-1994 mark Ext. PW-10/A which was received at Police
Station, Kasauli, District Solan on the same day. On the basis of the
said report formal first information report Ext. PW-12/A under
Sections 147, 148, 149, 452, 307 and 323, IPC was registered by
Inspector Om Prakash (PW-15) Station House officer, Kasauli. PW-15 Om
Prakash visited the place of occurrence on the same night but
inspected the spot on 22-6-1994. He prepared site plan Ext. PW-15/B.
In the meantime, Guddu Ram died because of the injuries sustained by
him at the hands of the accused and the offence from Section 307, IPC
was converted to 302, IPC in addition to other abovesaid offences.
PW-15 got the dead body of Guddu Ram photographed from Prem Raj
Sharma (PW-3) who placed on record photographs Exts. PW-3/A to
PW-3/H. Inquest report Ext. PW-15/C was also prepared. Application
Ext. PW-1/D was prepared and signed by PW-15 requesting the doctor of
District Hospital, Solan to conduct the post mortem on the dead body
of Guddu Ram. Injured PW-13 Smt. Kalawati and PW-4 Krishan Kumar were
also got medically examined. On the same day in the presence of PW-12
Sohan Lal and one Mohan Dass soils tained with blood was lifted from
the kitchen of deceased Guddu Ram. Blood stained stones from the
spot; one blood stained "Khesi" (bed sheet) which was put
by deceased Guddu Ram on himself and blood stained plastic Gunny bag
were also taken into possession vide memo Ext. PW-12/B and they were
sealed in a parcel with deal 'OP', A-1, A-2, A-3 and A-15 produced
one 'Danda' each to the Investigating Officer in the presence of
PW-12 Sohan Lal and Mohan Dass which allegedly were used by them in
the commission of the crime. The weapons of offence were taken into
possession vide memo Exts. P-12/C, PW-12/D, PW-12/E and PW-12/F and
were sealed in parcels with seal impression 'OP' which after use was
handed over to Mohan Dass. Medico Legal Certificates of injured PW-13
Smt. Kalawati, PW-14 Krishan Kumar and Smt. Krishan Devi Mark Exts.
PW-2/A, PW-2/B and PW-5/8 respectively were taken from the doctors of
Primary Health Centre, Dharampur who medically examined them. Medico
Legal Certificates of A-15 Manoj Kumar and A-16 Smt. Sheela Devi mark
Exts. PW-12/A and PW-12/B respectively were also procured by PW-15.
Post Mortem report of deceased Guddu Ram Ext. PW-1/A was also taken
from the doctor who conducted post mortem on his person. Statements
of the witnesses were also recorded. All the accused were arrested on
22-6-1993 and 23-6-1993 respectively. On receipt of the Chemical
Analyst report mark Exts. PW-1/B, PW-9/A and PW-/9B investigation was
completed and charge-sheet was prepared and submitted before the
Court below.
6.
The learned Sessions Judge by order dated 20-6-1996 assigned the case
for trial to the learned Addl. Sessions Judge. The learned Addl.
Sessions Judge framed charges against the accused persons under
Sections 147, 148 and Under Section 452 read with Section 149 for
committing house trespass of the house of Guddu Ram and under Section
302 read with Section 149, IPC for causing death of Guddu Ram and
under Section 323 read with Section 149, IPC for inflicting injuries
to PW-13 Smt. Kalawati and PW-14 Krishan Kumar alias Krishan Lal and
Smt. Krishnari Devi. All the accused denied the charges framed
against them and claimed to be tried.
7.
The prosecution in support of its case, has examined 15 witnesses.
The accused in their statements recorded under Section 313, Cr.P.C.
denied the allegations levelled against them by the prosecution. In
answer to question No. 22, all the accused pleaded that all the
prosecution witnesses are the members of the same family and they
(accused persons) have been falsely implicated in this case due to
enmity. In answer to question No. 23 the accused persons have pleaded
common defence which reads as under:
On
21-6-94 the quarrel took place between the minor children and Sohan
Lal, his father Guddu, mother Kalawatil sister Krishan Devi, Brother
Krishan Lal and Ram Rattan came to our residential house at 9-30 a.m.
Sheela told that matter would be solved in amicable manner. All the
said persons have brought the stones and Sohan Lal inflicted injuries
upon Sheela. But Manoj tried to rescue her and Sohan Lal inflicted
injuries to Manoj and he sustained head injuries and leg injury by
way of stones. I did not do anything and Sheela and Manoj went to
Police Station to lodge the report and above stated persons fled to
their home. When Sheela and Manoj came from Police Station, then we
came to know that Guddu Ram had fall down from hilly slope and Nika
Ram told us that deceased Guddu Ram had fell down from hilly slop
near his resident house. PW. Sohan Lal was also accused in a murder
case and he demanded money from us and when we refused to pay the
money he threatened us that he would implead us in a false murder
case of his father.
8.
The learned trial Court on appreciation and scrutiny of the evidence
on record convicted A-1 Shayam Lal, A-2 Ram Dass, A-3 Hans Raj and
A-15 Manoj Kumar under Sections 452, 302 and 323 of the Indian Penal
Code for causing murder of Guddu Ram and also inflicting voluntarily
hurt to him by forcibly entering his residential house and
accordingly sentenced them. They were, however, acquitted for the
other offences with which they were charged. Other accused persons
were acquitted under Sections 147, 148, 149, 452, 302 and 323, IPC by
giving them benefit of doubt.
9.
Feeling aggrieved against the impugned judgment and order, the
accused and State both have filed these appeals.
10.
We have heard Mr. T.R. Chandel, learned Counsel for the accused and
Mr. M.C. Mandhotra, learned Addl. Advocate General for the State. The
first contention of Mr. Chandel was that the trial Judge framed
charge No. 4 against the accused as under:
Fourthly,
on the aforesaid date, time and place you being member of unlawful
assembly committed the murder by causing the death of Shri Guddu Ram
son of Shrl Nakhru Ram and thereby committed an offence punishable
under Section 302 read with Section 149, Indian Penal Code and within
my cognizance.
11.
According to the learned Counsel, once the accused are acquitted
under Section 149, IPC as no common object was found having been
proved by the prosecution against them, their conviction for
substantive offence of murder of Guddu Ram is not maintainable
without framing substantive charge under Section 302, IPC and their
conviction as such is not sustainable. He also contended that for
attracting Section 34, IPC there should be finding of common
intention or object and in the present case the prosecution has not
proved that the accused had common intention or object to murder
Guddu Ram, therefore they cannot be even convicted under Section 302
read with Section 34 of the Indian Penal Code. In support of this
contention, Mr. Chandel placed reliance in Re : Ranga, AIR 1954
Mysore 75 : (1954 Cri LJ 622); Chlkkarange Gowda, 1956 SC 731 : (1956
Cri LJ 1365); Nanak
Chand v. State of Punjab AIR 1955
SC 274 : (1955 Cri LJ 721); Sarman v. State of M. P. 1993 Cri LJ 63 :
(AIR 1993 SC 400) and Subran alias Subramanian v. State of Kerala
1993 Cri LJ 1387 : (1993 AIR SCW 1014).
12.
Per contra, the learned Additional Advocate General contended that in
the absence of framing of charge for substantive offence under
Section 302, IPC against the accused by the learned trial Court, the
accused can be convicted for the offence under Section 302 read with
Section 34, IPC as their common intention was to commit murder of
Guddu Ram as no prejudice is caused to the accused for not framing
the separate charge for substantive offence under Section 302, IPC.
To support his submission he placed reliance on Willie
(William) Slaney v. State of Madhya Pradesh AIR 1956
SC 116 : (1956 Cri LJ 291).
13.
It is not in dispute that the learned trial Judge acquitted the
accused under Sections 147, 148 and 149 of the Indian Penal Code and
convicted them for the murder of Guddu Ram under Section 302, IPC
without framing a substantive charge under Section 302, IPC and they
were charged under Section 302, IPC with the aid of Section 149, IPC.
We have considered the respective contentions of the learned Counsel
for the parties. In
Nanak Chand v. State of Punjab AIR 1955
SC 274 : (1955 Cri LJ 721), three Judge Bench of the Supreme Court
has held that the charge for a substantive offence under Section 302
or Section 325, IPC is for a distinct and separate offence from that
under Section 302 read with Section 149 or Section 325, read with
Section 149. A person charged with an offence read with Section 149
cannot be convicted of the substantive offence without a specific
charge being framed as required by Section 233, Code of Criminal
Procedure (1898). A wrong conviction under Section 302/34 cannot be
converted into one under Section 302. Further it was observed in para
7 of the judgment as under :
7.
If there is a conviction for a charge not framed it is an illegality
and not an irregularity curable by the provisions of Sections 535 and
537, Cr.P.C. In that case, the irregularity was not curable because
the appellant was misled in his defence by the absence of a charge
under Section 302. By framing a charge under Section 302, read with
Section 149, IPC against the appellant, the Court indicated it was
not charging the appellant with the offence of murder and to convict
him for murder and sentence him under Section 302, IPC was to convict
him of an offence with which he had not been charged. In defending
himself the appellant was not called upon to meet such a charge and
in his defence he may well have considered it unnecessary to
concentrate on that part of the prosecution case. The Supreme Court
has said that there is a clear distinction between the provisions of
Sections 34 and 149 and the two sections are not to be confused. The
principal element in Section 34 is the common intention to commit a
crime. In furtherance of the common intention several acts may be
done by several persons resulting in the commission of that crime. In
such a situation Section 34 provides that each one of them would be
liable for that crime is the same manner as if all the acts resulting
in that crime had been done by him alone. There is no question of
common intention in Section 149. An offence may be committed by a
member of an unlawful assembly and the other members will be liable
for that offence although there was no common intention between that
person and other members of the unlawful assembly to commit that
offence provided the conditions laid down in the section are
fulfilled. Thus if the offence committed by that person is in
prosecution of the common object of the unlawful assembly or such as
the members of that assembly knew to be likely to be committed in
prosecution of the common object, every member of the unlawful
assembly would be guilty of that offence, although there may have
been no common intention and no participation by the other members in
the actual commission of that offence.
14. In
Chakkarange Gowda v. State of Mysore AIR 1956
SC 731 : (1956 Cri LJ 1365), their Lordships observed "the first
essential element of Section 149 was the commission of an offence by
any member of an unlawful assembly; the second essential part was
that the offence must be committed in prosecution of the common
object of the unlawful assembly, or must be such as the members of
that assembly knew to be likely to be committed in prosecution of the
common object. The common object of an unlawful assembly as mentioned
in the charge and as found by the Court was merely to administer a
chastisement to the deceased. The charge did not mention that the
members of the unlawful assembly knew that the deceased was likely to
be killed in prosecution of that common object. The deceased was
killed by the fatal injury caused by certain member of the unlawful
assembly. The Court convicted the other members who had not caused
the fatal injury under Section 302 read with Section 149 and Section
34". In the facts and circumstances of that case it was held
that as the finding of the Court was that none of the members of the
unlawful assembly had the intention to kill the deceased nor did any
of them knew that the deceased was likely to be killed in prosecution
of the common object of chastisement and as the charge gave no notice
to the accused that they had a separate common intention of killing
the deceased different from that of the other members of the unlawful
assembly, the conviction of the accused who had not caused any fatal
injury of an offence under Section 302 read with Section 149 or
Section 34 could not be sustained. In Sarma v. State of Madhya
Pradesh 1993 Cri LJ 63 : (AIR 1993 SC 400), it was found on the facts
of that case that the accused inflicted simple injuries on non vital
parts of the deceased and it could not be said that object of accused
was to kill deceased and, therefore, the accused were held liable to
be convicted under Section 304-II/149, IPC and not under Section
302/149, IPC. In Subran alias Subramanian v. State of Kerala 1993 Cri
LJ 1387 : (1993 AIR SCW 1014), three Judge Bench of the Hon'ble
Supreme Court held as under :
11.
Since, appellant No. 1 Subran had not been charged for the
substantive offence of murder under Section 302, IPC, even the trial
Court, which tried the six accused persons, was not justified in
recording a conviction against him for the substantive offence of
murder punishable under Section 302, IPC after framing a charge
against him for the offence under Section 302 read with Section 149,
IPC only. A person charged for an offence under Section 302, IPC read
with Section 149 cannot be convicted of the substantive offence under
Section 302, IPC without a specific charge having been framed against
him as envisaged by law. Conviction for the substantive offence in
such a case is unjustified because an accused might be misled in his
defence by the absence of the charge for the substantive offence
under Section 302, IPC. Appellant No. 1, Subran, was never called
upon to meet a charge under Section 302, IPC simpliciter and,
therefore in defending himself, he cannot be said to have been called
upon to meet that charge and he could very well have considered it
unnecessary to concentrate on that part of the prosecution case
during the cross-examination of the prosecution witnesses. Therefore,
the conviction of the first appellant for an offence under Section
302 was not permissible....
15.
In Re : Ranga, AIR 1954 Mysore 75 : (1954 Cri LJ 622), a Division
Bench of Mysore High Court has held that Section 149 may be
applicable to cases to which Section 34 does not apply. The essential
condition for the operation of either section is that the intention
in one case and object in the other should be common and if the act
is in excess of or beyond the intention or object of the members,
they cannot be constructively liable for it.
16.
In the present case the prosecution has examined PWs. 12 and 14 as
eye-witnesses. In his deposition PW-12 stated that on 21-6-1994 he
was coming from village Kuthar to his residential house in village
Baghol at about 11 a.m. His mother PW-13 at that time was working in
the field and his brother namely, Ram Rattan and sister Krishna met
him on the way who told him that they are given beatings by A-1 at
village Baniara. He asked his mother, to find out from A-1 the reason
for giving heating to the children and in the meantime, A-1, A-8,
A-9, A.-14, A-16 and A-22 also came from the side of 'Ghasni' (grass
land). His father Guddu Ram was also called from his residential
house by his younger brother and sister. On his father's arrival,
A-1, A-15, A-5, A-14 and A-7 threw stones upon his father and mother
PW-13. They firstly threw his mother on the ground and then came
towards him and his father to give them beatings but due to fear they
came to their house. When they reached at their house, A-2, A-3,
A-13, A-9, A-18, A-20, A-11, A-12, A-14, A-23 and A-21 jointly came
to their house with the intention to quarrel with them, A-1, A-2, A-3
and A-15 were armed with sticks and the other accused were holding
stones in their hands. He along with his father, brother and sister
went inside the room and bolted the door from inside. All the accused
surrounded their house. A-1, A-2, A-3 and A-15 had broken the door of
their room whereas A-9, A-14 and A-5 had damaged the upper portion of
the roof of their house and started pelting stones upon them. A-1,
A-2, A-3 and A-15 forcibly entered their room and had given 'Dandas'
blows on the person of his father Guddu Ram and thereafter he was
dragged to the courtyard of their house where the accused again had
given 'Dandas' and stones blows on his person and then laid him in
their kitchen. His father sustained injuries on his arms, fingers,
legs, head and other parts of the body. The above said four accused
also inflicted 'Danda' and stones injuries on the person of his
sister Krishna Devi and brother PW-14. He escaped from the scene of
the occurrence and reached police station to lodge a report Ext. PW.
10/A on the basis of which FIR Ext. PW-12/A was recorded. The Police
reached at the spot at 6 p.m. on the same day and with the help of
Nek Ram, Ramesh Kumar and Ram Dass his father Guddu Ram was taken to
hospital in Palki (palangulin) in injuried condition who succumbed to
his injuries on the way and his dead body was brought back to their
house. The Investigating officer started investigation on the spot
and took into possession blood stained earth scattered on the floor
of the kitchen where his father was thrown after inflicting injuries
by the accused. Site plan of the house was also prepared. In his
presence PW-1 produced one stick of pear wood. A-2 also handed over
one stick of 'kainth' wood to the Investigating Officer. Similarly,
A-3 and A-15 also handed over one stick each of 'Sota' wood and
'Daran' wood respectively to the Investigating Officer with which
they had inflicted multiple grievous injuries to his deceased father.
Blood stained stones lying at the scene of occurrence were also taken
into possession and sealed on the spot. In his cross-examination, the
accused failed to discredit his testimony on the vital issues. He
categorically named A-2 who struck 'Danda' blow on the head of his
father whereas A-15 inflicted nearby the ear portion of the head. He
has emphatically denied the suggestion of the accused that his father
fell down on the hilly slope adjoining to their house and rolled down
as a result thereof he sustained injuries which proved to be fatal to
him. Further suggestion that he along with his father, brother and
sister had pelted stones from inside their room and courtyard and
that accidentally one stone thrown by him hit his father on his
temporal region, was categorically denied by him. He also denied the
suggestion that false report has been registered by him against the
accused as he is in the habit of manipulating such type of cases
being registered against innocent persons to extract money from them.
17.
PW-13 wife of deceased Guddu Ram has corroborated the testimony of
PW-12 about the manner and genesis of taking place of the occurrence.
In her deposition, she also stated that A-1, one Babi and Jai Pal had
thrown stones upon her resulting causing injuries on her legs. In her
cross-examination she denied the suggestion of the accused that her
husband Guddu Ram and son PW-12 went to the residential house of A-1
on the day of occurrence armed with 'Danda' and stones and used
abusive language to A-1 and his wife A-16. She also denied the next
suggestion that the conplainant party after inflicting injuries on
the person of A-16 Smt. Sheela Devi wife of A-1, her husband
(deceased) fell down at the hilly slope and consequently he died.
PW-14 the second eye-witness has also given the ocular account of the
incident in his deposition. He specifically stated that A-1, A-2, A-3
and A-15 surrounded their house armed with 'Dandas' and stones. He
stated that the accused after breaking open the door of their room
had forcibly entered into it and, thereafter, started giving beatings
to his father with 'Dandas' on his head and other parts of his
person. His father was dragged from inside the room and laid in the
courtyard where again he was given 'Dandas' blows on his person by
the accused. Thereafter, his father was thrown inside their kitchen.
He denied the suggestion of the accused that his father, mother PW-13
and brother PW-12 went to the house of A-1 and quarrelled with him
and his wife A-16. In his cross-examination he re-asserted and
re-affirmed that A-1, A-2, A-3 and A-15 gave four 'Dandas' blows on
the person of his father inside the room after making forcible entry
and, thereafter, they' dragged him outside the room and laid him in
the courtyard where he was again given 'Dandas' blows by all the four
accused. Suggestions of the accused that his father was used to take
liquor and further that his father fell down from a hilly slope and
consequently died are emphatically denied by him.
18.
On 22-6-1994 post-mortem on the dead body of Guddu Ram was performed
by PW-1 Dr. A.K. Arora who found Guddu Ram to have sustained the
following injuries on his person.
1.
Crushed lacerated wound on right parietal region 2" x 1" x
1/2" Clotted blood was present.
2.
CLW Soft parietal region 1" x 1/2" x 1/2" with clotted
blood.
3.
Bruised area right shoulder 2" x 1" Subcutaneous
haemorrhage was present, colour was red.
4.
Bruised area left lower and lateral part of chest carrying 9th
lateral part of chest overlying 9th Red in colour subcutaneous
haemorrhage was present. There was fracture of 9th and 10th ribs
anteriorly.
5.
CLW left elbow 2" x 1" x 1" size. Blood Clot was
present.
6.
Left hand was swollen bruised area was present on dorsum of hand, red
in colour 3" x 2" in size, Subcutaneous haemorrhage was
present.
7.
Left middle finger of hand terminal and was crushed.
8.
Bruished area below left elbow 2" x 1" read in colour.
9.
CLW above left wrist 2" x 1" x 1/2" with fracture of
lower end of ulna bone.
10.
Bruised area 4" x 2" above right wrist with fracture of
lower end of radius and ulna. Bruised area was red in colour, and
subcutaneous haemorrhage was present.
11.
Bruised area left leg below knee 3" x 2" red in colour,
subcutaneous haemorrhage was present.
12.
CLW middle of right left 4" x 2" x 1" of size clotted
blood was present.
19.
The probable time between injuries and death was 6 to 8 hours and.
between death and post-mortem was within 24 hours. In the opinion of
Dr. Arora, Guddu Ram had died due to shock following massive internal
haemorrhage. He issued post-mortem report Ext. PW-1/A. On examination
of Chemical Analyst report Ext. PW-1/B, he gave his opinion Ext.
PW-1/C that injury Nos. 1 and 2 could be caused by stick Ext. P. 1
and injury Nos. 1, 2, 3, 5 and 9 could also be caused by stick Ext.
P-3. Similarly, these injuries could be caused by Stick Ext. P-1. Dr.
Arora further stated that all the injuries described in the
post-mortem report could be caused by stones Exts. P-5 and P-11.
During the cross-examination, Dr. Arora further opined that above
detailed injuries were possible if a person had a fall on a hilly
slope and rolled down. He also opined that injuries found on the
person of Guddu Ram could be caused by a particular 'Danda' out of
sticks Ext. P-1 to Ext. P-4. He stated that there could be different
types of injuries with different types of 'Dandas' even different
types of injuries could be sustained by one 'Danda' and it was not
always possible that force and shape of weapon of offence will
determine or establish connection between weapon of offence and
injury.
20.
PW-15 Om Parkash, Station House Officer, Police Station, Kasauli
investigated the case. He took into possession four sticks produced
by A-1, A-2, A-3 and A-15 to him. He denied the suggestion of the
accused that sticks Exts. P-1 to P-4 were not handed over to him by
the accused but they were in fact handed over by PW-12 Sohan Lal. He
corroborated the testimony of PWs. 12, 13 and 14 on all material
particulars. However, he admitted in his cross-examination that there
is hilly slope towards the western side of the house of the deceased
quoted by him in site plan Ext. PW-15/B. He denied the suggestion of
the accused that when he prepared . the final report, he impleaded
A.C. Dani, Tehsildar and H.C. Balak Ram as co-accused in the present
case and explained that Sardari Lal to whom he handed over the papers
of the case inadvertently impleaded the names of A.C. Dani,
Tehsildar, Kasauli and H.C. Balak Ram in the list of the accused. He
also denied further suggestion of the accused that when the
investigation of this case was about to be completed, he came to know
that Guddu Ram and his family members after taking quarrel with A-15
Manoj Kumar and A-16 Smt. Sheela Devi came back running to their
house and in that process Guddu Ram fell down on a hilly slope and
received injuries resulting in his death. On re-appraisal and
scrutiny of the testimony of PWs. 12, 13 and 14 we find that their
evidence is not shattered and impeached by the accused in the
cross-examination. The medical evidence corroborates the ocular
version of these witnesses to prove that deceased Guddu Ram died
because of stick blows given by A-1, A-2, A-3 and A-15 on his person
and he received multiple injuries. The opinion of the Doctor is clear
and positive that Guddu Ram died due to shock following massive
internal haemorrhage and the injuries found on his person could be
inflicted by 'Dandas' P-1 to P-4 coupled with stones. The learned
Sessions Judge on assessment of the evidence has rightly held that
the prosecution has failed to establish that all the accused persons
have committed rioting after forming unlawful assembly with common
object to commit the offence of murder of Guddu Ram and, therefore,
they have been rightly acquitted for the offences under Sections 147,
148 and 149 of the Indian Penal Code.
21.
Now the question is whether the accused persons could be convicted
under Section 302, IPC without framing substantive charge against
them as contended by their learned Counsel. The ratio of the
judgments relied upon by the learned Counsel is considered by us and
in our view, it cannot be said that the accused are prejudiced in any
manner if substantive charge of Section 302, IPC was not framed
against each of them independently. The Supreme Court in Willie
(William) Slaney v. State of Madhya Pradesh AIR 1956
SC 116 : (1956 Cri LJ 291) had considered the provisions of Sections
233, 535 and 537 of the Code of Criminal Procedure (1898)
(corresponding to Sections 218, 464 and 465 of the Code of Criminal
Procedure, 1973). In that case each of the two accused were charged
under Section 302 read with Section 34, IPC and no separate charge
was framed against one accused who was convicted by the Court below
under Section 302, IPC. On detailed consideration of the facts and
circumstances of that case and the relevant provisions of law their
Lordships held that, having regard to the nature of the charge framed
against the accused the omission to frame a separate charge under
Section 302, Penal Code against him was only a curable irregularity
which in the absence of prejudice could not affect the legality of
conviction under Section 302, Penal Code. The ratio of the judgment
in AIR 1955 SC 274 : (1955 Cri LJ 721) and AIR 1955 SC 419 : (1955
Cri LJ 1004) was explained and distinguished and it was held that
there was no rare conflict between these decisions. In State of A.P.
v. Thakkidiram Reddy (1998) 6 SCC 554 : (1998 Cri LJ 4035), their
Lordships while dealing with and considering the provisions of
Sections 211, 215, 464 and 465 of Criminal Procedure Code, 1973 held
as under:-
9.
Before considering the factual aspects of the case, it will be
necessary to advert to a question of law relating to the validity of
the trial raised by Mr. Arunachalam, the learned Counsel appearing
for A-2 to A-5 and A-9. He contended that the charges were not framed
against the accused persons in accordance with Section 211 of the
Code of Criminal Procedure, in that, in the charge framed under
Section 148, IPC, though it was alleged that they were the members of
an unlawful assembly, it was not mentioned what its common object
was. Besides, he contended, a charge under Section 302, IPC
simpliciter was framed against all the accused persons and not with
the aid of Section 149, IPC for which they were convicted by the
trial Court. He submitted that an accused is entitled to precisely
know the exact nature of knowledge, he will be prejudiced in his
defence, particularly in a case-as committed by himself but by others
with whom he is in company. It is undoubtedly true that the charges
suffered from the infirmities pointed out by Mr. Arunachalam but the
question is whether the trial, and, for that matter, the convictions
recorded against the accused were vitiated thereby.
10.
Sub-section (1) of Section 464 of the Code of Criminal Procedure,
1973 ("Code" for short) expressly provides that no finding,
sentence or order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no charge was framed or on
the ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless in the opinion of the
Court of appeal, confirmation or revision, a failure of justice has
in fact (emphasis supplied) been occasioned thereby. Sub-section (2)
of the said section lays down the procedure that the Court of appeal,
confirmation or revision has to follow in case it is of the opinion
that a failure of justice has in fact been occasioned. The other
section relevant for sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of appeal,
confirmation or revision on account of any error, omission or
irregularity in the proceedings, unless in the opinion of that Court,
a failure of justice has in fact been occasioned. It further
provides, inter alia, that in determining whether any error, omission
or irregularity in any proceeding under this Code has occasioned a
failure of justice, the Court shall have regard to the fact whether
the objection could and should have been raised at an earlier stage
in the proceedings.
11.
This Court in Willie (William) Slaney v. State of M. P. (1956 Cri LJ
291) (SC) elaborately discussed the applicability of Sections 535 and
537 of the Code of Criminal Procedure, 1898 which correspond
respectively to Sections 464 and 465 of the Code, and held that in
judging a question of prejudice, as of guilt, courts must act with a
broad vision and look to the substance and not to technicalities, and
their main concern should be to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him
fairly and clearly and whether he was given a full and fair chance to
defend himself. Viewed in the context of the above observations of
this Court, we are unable to hold that the accused persons were in
any way prejudiced due to the errors and omissions in the charges
pointed out by Mr. Arunachalam. Apart from the fact that this point
was not agitated in either of the Courts below, from the fact that
the material prosecution witnesses (who narrated the entire incident)
were cross-examined at length from all possible angles and the
suggestions that were put forward to the eye-witnesses we are fully
satisfied that the accused persons were not in any way prejudiced in
their defence. While on this point we may also mention that in their
examination under Section 313 of the Code, the accused persons were
specifically told of their having committed offences (besides others)
under Sections 148 and 302/149, I P.C. For all these reasons we
reject the threshold contention of Mr. Arunachalam.
22. In
Kammari Brahmaiah v. Public Prosecutor, High Court of A. P. (1999)
2 SCC 522 : (1999 Cri LJ 1134), it is held :
Section
464 in mandatory terms and specifically provides what is to be done
in cases where a charge is not framed or there is an error, omission
or irregularity in framing of the charge. From the unequivocal terms
of the Section, it can be stated that a finding, sentence or order
could be set aside only in those cases where the facts are such that
no valid charge could be preferred against the accused in respect of
the facts proved. Secondly, if the facts are such that a charge could
be framed and yet it is not framed but no failure of justice has in
fact been occasioned thereby, the finding, sentence or order of the
court of competent jurisdiction is not to be set aside on that
ground. Thirdly, if there is failure of justice occasioned by not
framing of the charge or in case of an error, omission or
irregularity in the charge, re-trial of the case is to be directed
under Sub-section (2)." The judgment further proceeded to hold :
"non-framing of a charge would not vitiate the conviction if no
prejudice is caused thereby to the accused. The trial should be fair
to the accused, fair to the State and fair to the vast mass of the
people for whose protection Penal Laws are made and administered. The
Code of Criminal Procedure is a procedural law and is designed to
further the ends of justice and not to frustrate them by the
introduction of endless technicalities."
In that case their Lordships have relied upon the case of Ramkishan
v. State of Rajasthan (1997)
7 SCC 518 : 1997 SCC (Cri) 1106 : (1998 Cri LJ 54); Willie (William)
Slaney v. State of M. P. (1955) 2 SCR 1140 : AIR 1956 SC 116 : 1956
Cri LJ 291.
23.
In the light, of the aforesaid decisions of the Apex Court in the
facts of the present case we are not persuaded to accept the
contention of the learned Counsel for the accused that non-framing of
separate charge against each of the accused under Section 302, I.P.C.
would vitiate their conviction as we find that no prejudice is caused
thereby to the accused. The accused were tried on the prosecution
version which was specifically told to them under Fourthly charge
(sic) framed by the trial Court. Their statements were recorded under
Section 313, Cr.P.C. and they were asked to the fact that they
forcibly entered the house of Guddu Ram and inflicted 'Dandas' blows
on his head and other parts of his person inside the room of his
house and, thereafter, he was dragged out of the room and laid at his
courtyard where more injuries were caused to him which resulted his
death. The role played by A-1, A-2, A-3 and A-15 has been clearly and
plainly stated by PWs-12 and 14 in their evidence and their testimony
has been accepted being unblemished and unshattered. Thus, we are of
the view that no prejudice has been caused to the accused for not
framing separate substantive charge against each of them for the
offence punishable under Section 302, I.P.C. and they cannot be held
entitled to be acquitted on this sole ground for causing the death of
Guddu Ram.
24.
The second contention of the learned Counsel that the prosecution
could not prove that who inflicted serious individual injury on the
person of the deceased is not sustainable. From the scrutiny of the
evidence of PWs. 12 and 14 which is reliable, cogent and acceptable,
it has been proved that all the four accused inflicted 'Dandas' blows
on the head, arms, fingers, legs and other parts of his body and
multiple injuries were found by the Doctor on the dead body of Guddu
Ram. In the teeth of the reliable and believable oral evidence of
PWs. 12 and 14 corroborated by medical evidence, in our view that the
accused have been rightly found guilty having caused death of the
deceased.
25.
The third contention of the learned Counsel that the prosecution has
not explained the injuries found on the person of A-15 and A-16
inflicted upon them jointly by Guddu Ram deceased and PWs. 12, 13 and
14 for which daily diary report Exts. DA and DB were lodged by A-15
and A-16 at Police Post, Kuthar on the day of incident at 12.30 p.m.
and 3.15 p.m. respectively. On consideration of the material on
record, we do not find any substance in this contention. The F.I.R.
Ext. PW- 12/A about the occurrence was lodged by PW-12 Sohan Lal at
Police Station, Kasauli on 21-6-1994 at 11.30 a.m. prior to the
lodging of the daily diary report Exts. DA and DB by A-15 and A-16.
PW-11 Dr. Deveshwar Pandey, a Medical Officer of Primary Health
Centre, Chandi medically examined A-15 and A-16 on 22-6-1994. He
noticed following two injuries on the person of A-15 :
1.
Cutless lacerated wound 1 1/2 cms. on scalp over occipital region
below occipital protuberance with infection.
2.
Abrasion 1/4 cm. over metacarpo phalangial joint of right little
finger.
26.
On the person of A-16 Smt. Sheela Devi the following injuries were
found :
1.
Abrasion 1/2 cm. on left lateral side of forehead with clotted blood
over injury.
These
injuries found on the person of A-15 and A-16 were simple in nature
caused within period of 24 to 36 hours. These injuries are minor and
superficial in nature and, therefore, no action appears to have been
taken by the police on the basis of their reports. It has come in the
evidence of PW-12 Sohan Lal that when he was going to Police Station
to lodge the report of the incident, A-15 and A-16 on the way tried
to prevent him lodging First Information Report and at that place
scuffle took place between him and these two accused. A-15 caught him
and when he tried to release himself from the clutches of A-15 in
that process he pushed A-15 back who fell down on the stone and
sustained injuries. In view of this evidence, the prosecution is not
further obliged to explain the injuries sustained by A-15 and A-16.
In their statements under Section 313, Cr.P.C. all the accused took
common plea that Sohan Lal (PW-12) his father Guddu Ram (deceased),
mother Smt. Kalawati (PW-13) and Ram Rattan came to the house of A-16
at 9.30 a.m. armed with stones. Sohan Lal inflicted stone injuries
upon A-16 and when A-15 tried to rescue to her Sohan Lal inflicted
injuries to him on his head and legs. From the medical examination of
A-15 and A-16 by Doctor PW-11 it cannot be said that those injuries
found on their person were caused by stones inflicted by PW-12 Sohan
Lal. The prosecution has proved that the incident had taken place at
the house of deceased Guddu Ram and not at the house of A-16 Smt.
Sheela Devi as projected by the accused in their statements and
defence taken by them. The defence of the accused that Guddu Ram died
because of fall near his house from a hilly slope was not stated by
the accused in their statements recorded under Section 313, Cr.P.C.
and the version of DW-1 Mansha Ram has been rightly rejected by the
learned trial Judge as he is not found to be a truthful witness.
27.
The law as to failure of prosecution to explain injuries sustained by
accused has been so stated in a recent decision by the Supreme Court
in Takhaji
Hiraji v. Thakore Kubersing Chamansing(2001)
6 SCC 145 : AIR 2001 SC 2328 : 2001 Cri LJ 2602 in which it has been
observed that it cannot be held as a matter of law or invariably a
rule that whenever the accused sustained an injury in the same
occurrence the prosecution is alleged to explain those injuries in
every case. There is no material brought on record to hold that the
injuries sustained by A-15 and A-16 were so sustained at the same
time and place at which the deceased sustained injuries, that is to
say, to hold that the injuries to both the sides were caused during
the course of the same incident.
28.
Mr. T.R. Chandel, learned Counsel next contended that 'Dandas' Exts.
P-1 to P-4 allegedly taken into possession by the Investigating
Officers were not connected with the commission of the offence used
by the accused as no blood was found on the alleged weapons of
offence by the Chemical Examiner as reported in Ext. PW-9/A. On
examination of report Ext. PW-9/A, it is stated that one 'Danda' of
'pomigrant' wood was stained with human blood but the blood group
could not be determined conclusively. No blood was found on 'Kainth'
and Peer wood sticks by the Chemical Examiner. The accused cannot
take the benefit of non-sticking of the stains of blood on the sticks
used by them which were voluntarily produced by them to the
Investigating Officer during the investigation of the case lodged
against them. PW-12 has categorically stated that sticks Ext. P-1 to
P-4 were the same which were used by the accused at the time of
giving beatings to his father. Dr. A.K. Arora has also stated that
the injuries sustained by deceased could be caused by the said
'Dandas'. In the teeth of the positive evidence led by the
prosecution on this point, it cannot be said that the link evidence
is missing in this case and 'Dandas' Exts. P-l to P-4 were proved to
be the same used by the accused in the commission of the crime.
29.
It was also contended by Mr. Chandel that all the witnesses examined
by the prosecution are related and interested and their testimony
cannot be relied upon as the parties are inimical to each other. In
support of this submission he has relied upon the judgment of the
Supreme Court in Sevi v. State of Tamil Nadu AIR 1981 SC 1230 : (1981
Cri LJ 736). In that case their Lordships have held that if the
entire evidence is of partisan character the impartial investigation
can lend assurance to the Court to enable it to accept such partisan
evidence. But where in a murder case, the investigation itself was
found to be tainted, in the sense that the original FIR was
suppressed by the Police, it becomes difficult for the Court to sift
the evidence, and the evidence of partisan eyewitnesses could not be
accepted. In the facts of that case the accused were acquitted of the
charge of murder. In the present case, the eye-witnesses are the sons
of the deceased and there is no evidence on record to prove that
besides the family members of deceased Guddu Ram there was only other
independent person on the spot who had witnessed the occurrence. The
accused with common intention came to the house of the deceased armed
with sticks and stones and on seeing them deceased Guddu Ram, his
sons and daughter out of fear bolted themselves inside a room and the
accused persons forcibly broken open the door of the room and
instantaneously started giving beatings to Guddu Ram with sticks. The
testimony of eye-witnesses cannot be discredited merely on the ground
that they are partisan and interested witnesses, as we find that they
are truthful witnesses and have given true account of the occurrence
and their evidence is not found to be unworthy of credence. In
Madhusudan Das v. Smt. Narayani Bai AIR 1983
SC 114 it has been held that it is not open to the Court to reject
the evidence without anything more on the mere ground of relationship
or favour or possible prejudice. In State of Punjab v. Wassan Singh
AIR 1981 SC 697 : (1981 Cri LJ 410) their Lordships held :
in
a murder case the mere fact that the witnesses had succeeded in
escaping unhurt or that there are discrepancies in the statements of
the two witnesses as to whether they had gone to Amarkot with the
deceased on the very day of occurrence or a day earlier, is no ground
for jumping to the conclusion that the witnesses were not in the
company of the deceased or near about the scene of occurrence when
the deceased persons were shot dead.
30.
The
decision further proceeded to hold that persons with questionable
antecedents were not necessarily untruthful Witnesses. Nor mere
relationship with the deceased was a good ground for discarding their
testimony, when their presence at the scene of occurrence was
probable. All that was necessary was to scrutinize their evidence
with more than ordinary care and circumspection with reference to the
part or role assigned to each of the accused. An effort should be
made to sift the grain from the chaff; to accept what appeared to be
true and to reject the rest.
The High Court did not adopt this methodology in appreciating their
evidence. Instead, it took a short-cut to disposal, and rejected
their evidence wholesale against all the accused, for reasons which
were manifestly untenable. On re-appreciation of the evidence of the
relative or interested witnesses, the acquittal of the accused Wassan
Singh and Mukhtiar Singh by the High Court was set aside and they
were convicted for the offence under Section 302 read with Section
34, I.P.C. for the murder of Hazara
Singh. In Jangir Singh v. State of Punjab (2000)
10 SCC 261, it has been held that the testimony of injured
eye-witness the wife of the deceased cannot be disbelieved and
discarded merely on the ground that she was an interested witness.
Thus, in the present case the testimony of the relative witnesses
cannot be disbelieved and discarded merely on the ground of their
interestedness. Once they are proved to be truthful witnesses, their
evidence has been rightly accepted by the learned trial Court. This
contention of the learned Counsel therefore, cannot be accepted.
31.
Mr. Chandel, learned Counsel lastly contended that the prosecution
has failed to prove the common intention and object of the accused to
commit the murder of deceased Guddu Ram and that there is no evidence
to prove that out of the four accused who individually inflicted
particular injury upon the person of the deceased resulting his
death, therefore, the accused can at the best be convicted under
Section 304, I.P.C. read with Section 34, I.P.C. In support of this
contention reliance was placed in a case of Jagpati v. State of
Madhya Pradesh AIR 1993 SC 1360 : (1993 Cri LJ 1058). In that case
their Lordships found that death caused by injuries inflicted on head
of deceased in sudden quarrel by the accused having no intention to
cause particular injury which was sufficient to cause death. In the
facts and circumstances of the case the conviction of the accused
under Section 302 read with Section 34 was altered to Section 304,
Part II read with Section 34,I.P.C.
In Gurdip Singh v. State of Punjab AIR 1987
SC 1151 : (1987 Cri LJ 987), it was held that two accused causing
injuries to the victim, one being sufficient in ordinary course to
cause death but the material available on record had created doubt
whether their intention was to kill the victim or to attack him for
taking revenge of his suspected illicit relation with a female of
their family, the correct approach on the evidence and other
circumstances in that case according to their Lordships was to hold
the accused guilty under Section 304, Part-I and their conviction
under Section 302, I.P.C. was converted accordingly. In
Ram Meru v. State of Gujarat 1993
Supp (1) SCC 315 : (1992 Cri LJ 1265), the common intention to murder
the deceased was not established conclusively beyond reasonable doubt
by the prosecution and the accused were convicted by Sessions Court
under Sections 326/34 and 324, I.P.C. which was found proper and its
enhancement to Sections 302/34 by the High Court was not held to be
sustainable. In
Ram Lal v. Delhi Administration AIR1972
SC 2462 : (1973 Cri LJ 17), the accused was convicted under Section
302, I.P.C. by the Sessions Court and his conviction and sentence was
confirmed by the High Court. On appeal by the accused, their
Lordships set aside the conviction of the accused under Section 302,
I.P.C. and altered it to one under Section 325 read with Section 34.
32.
We have discussed the evidence of the eye-witnesses in the earlier
part of the judgment and on re-appraisal and scrutiny of the entire
evidence on record, the accused have inflicted sticks blows on the
head of the deceased, Guddu Ram inside the room of his house and as
well as on other parts of his person and, thereafter, the accused
dragged him out of the room and laid him in the courtyard where more
blows of sticks were given to him by the four accused persons. When
Guddu Ram was taken to hospital, he died on the way because of the
injuries suffered by him at the hands of the accused. A-1, A-2, A-3
and A-15 facilitate murderous assault with common intention and in
furtherance of their common intention, they caused the death of Guddu
Ram. In the facts and circumstances of the case, we convict the
accused under S.302 read with Section 34. I.P.C. and their conviction
in our view cannot be altered to Section 304, I.P.C. as contended by
their learned Counsel. The common intention of the accused can be
seen from the nature of the injuries caused to deceased Guddu Ram by
the accused besides other circumstances narrated hereinabove. The
accused persons shall each suffer imprisonment for life and to pay
fine of Rs. 5,000 each, in default of payment of fine, each of the
accused shall suffer simple imprisonment for one year for offence
under Section 302 read with Section 34, I.P.C.
33.
The prosecution has proved beyond reasonable doubt that the accused
forcibly entered into the house of deceased Guddu Ram; broken open
the room bolted from inside and, thereafter, assaulted Guddu Ram. The
learned trial Court has rightly convicted and sentenced them for
offence under Section 452, I.P.C. So far the conviction and sentence
imposed by the learned trial Court upon the accused under Section
323, I.P.C. for causing the injuries to deceased Guddu Ram is
concerned, the same is set aside as since no separate charge under
Section 323, I.P.C. was framed by the trial Court against the accused
and further the accused are convicted for major offence under Section
302, I.P.C. and their conviction under Section 323, I.P.C. is
unjustified and unsustainable. The accused are acquitted of the
charge under Section 323, I.P.C. Both the sentences imposed upon the
accused under Section 302 read with Section 34, I.P.C. and Section
452, I.P.C. shall run concurrently.
34.
As far Criminal Appeal No. 558/2000 filed by the State against the
acquittal of the accused and other respondents under Sections 147,
148, 149, 452, 302 and 323, I.P.C. is concerned, we do not find any
merit in the said appeal. The prosecution has not proved by positive,
cogent and reliable evidence that all the accused formed unlawful
assembly and committed rioting with common object and intention.
PW-13 Smt. Kalawati and PW-14 Krishan Kumar could not prove that the
injuries were inflicted on their person by the accused persons by
pelting stones and giving 'Danda' blows. Dr. PW-2 Lalit Gupta and
PW-5 Dr. Radha Chopra medically examined PW-13 Smt. Kalawati and
PW-14 Krishan Lal have found simple injuries on their person which
could not be attributed to the accused persons and other respondents
caused by them by 'Dandas' Exts. P-l to P-4 or stones as alleged by
the witnesses.
35.
On re-appraisal and scrutiny of the entire evidence on record, we are
of the considered view that the view taken by the trial Court was
possible view and if there are two possible views, one taken by the
trial Court has to be accepted and the benefit of doubt has to be
given to the accused persons. In
Awadhesh v. State of Madhya Pradesh AIR 1988
SC 1158 : (1988 Cri LJ 1154), it has been held as under (para 3) :
Although
the powers of the High Court to reassess the evidence and reach its
own conclusion are as extensive as in an appeal against the order of
conviction, yet as a rule of prudence, the High Court should always
give proper weight and consideration to matters e.g. (i) the view of
the trial Judge as to the credibility of the witnesses; (ii) the
presumption of innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has been acquitted at the
trial; (iii) the right of the accused to the benefit of any doubt,
and (iv) the slowness of an Appellate Court in disturbing a finding
of fact arrived at by a Judge who had the advantage of seeing the
witnesses. If on appraisal of the evidence and no considering
relevant attending circumstances it is found that two views are
possible, one as held by the trial Court for acquitting the accused
and the other for convicting the accused in such a situation the rule
of prudence should guide the High Court not to disturb the order of
acquittal made by the trial Court. Unless the conclusions of the
trial Court drawn on the evidence on record are found to be
unreasonable, perverse or unsustainable, the High Court should not
interfere with the order of acquittal.
36.
We do not find any infirmity, illegality or perversity in the order
of the learned trial Court acquitting the accused and other
respondents for the offence with which they were charged. The appeal
of the State, therefore, is dismissed.
37.
No other point is urged by the learned Counsel for the parties.
38.
For the foregoing reasons, we partly allow the appeal filed by the
accused to the extent indicated above. We would, however, record the
benefit of doubt to the respondents in the appeal filed by the State
and maintain their acquittal on all counts.