REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1348 OF 2007

KHILAN & ANR.           …....APPELLANT

VERSUS

STATE OF MADHYA PRADESH                         …RESPONDENT                        

     J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. On 16.2.2010 this Court had passed the following order:

“Mr.  S.K.  Dubey,  learned  senior  counsel  appearing  for  the  respondent  submitted  that  arising out of the same judgment, the State of  M.P.  has  also  filed  another  Criminal  Appeal  No.1540/2008 against the acquittal of Sangram  Singh  and  requests  that  the  said  appeal  may  also be heard along with the present appeal.

Criminal  Appeal  No.1540/2008  is  taken  on board.

The appeals are dismissed in terms of the  signed order.  The reasoned order will follow.”  

2. We now proceed to give the reasons.   

1

3. This appeal has been filed by the two appellants against the  

judgment  of  the High Court  of  Judicature  of  Madhya Pradesh in  

Criminal Appeal No. 120/98 dated 10.4.2006.  The High Court has  

been pleased to dismiss the appeal of the petitioner and upheld the  

conviction and sentence under Section 302/34 IPC.   

4. We may briefly notice the salient facts involved in this appeal.  

It  was  the  case  of  the  prosecution  that  eight  accused  persons,  

namely,  Prema,  Khilan,  Gaindalal,  Sangramsingh,  Durzan,  Kashi  

Ram,  Gyarsia  Lal  and  Bihari  had  formed  an unlawful  assembly.  

They  armed  themselves  with  deadly  weapons  and  assaulted  

Toophan Singh, in furtherance of their common object to kill him, in  

which they succeeded.  It was stated by the complainant, Prabhulal  

(PW2) that on 8.12.1991 when he had gone to the fields to answer a  

call  of  nature,  he  heard  the  cries  of  his  Mama,  Toophan  Singh,  

shouting “mar diya-mar diya”.  He went running to the spot and saw  

that  accused  Prema,  Gainda  and  Khilan  armed  with  farsas  and  

Sangram armed with luhangi along with Durzan, Kashi, Gyarsia Lal  

and Bihari armed with  lathis, were assaulting his Mama, Toophan  

Singh.  As a result of the assault Mama, Toophan Singh, fell on the  

ground. When he tried to intervene the appellant, Prema exhorted  

the other accused to kill the complainant also.  All the accused tried  

to catch him but he ran away and reached his home.  After hearing  

2

about the assault from the complainant (PW2), Phool Singh (PW7)  

and two other persons, Meharban and Rajaram went to the spot.  

However, the assailants ran away.  On an examination of Toophan  

Singh,  they  found  that  he  had  died.   He  had  received  deep  cut  

wounds over his head and blood was oozing out of them.  Sushila  

Bai who was working in the field is said to be an eye-witness of the  

assault.  It is also the case of the prosecution that the Prema and  

his sons had a dispute over land with the deceased and his family.  

The incident was reported by Prabhulal, son of Anant Singh, on the  

same day at  about  1300 hrs.  On the information being received,  

Crime No.108/91 was registered at Police Station, Kachnar under  

Sections  147,  148,  302/149  IPC.  Upon  conclusion  of  the  

investigation charge sheet was filed and all the eight accused were  

sent up for trial.  All the accused pleaded not guilty.  They all took  

up the plea that due to enmity, they have been falsely implicated.  

5. Upon  conclusion  of  the  trial  the  Addl.  Sessions  Judge  

acquitted  Durzan,  Kashi  Ram,  Gyarsia  Lal  and  Bihari  of  all  the  

charges.   Prema,  Gainda  Lal,  Khillan  and  Sangram  Singh  were  

convicted of murder of Toophan Singh under Section 302/34 and  

sentenced to life imprisonment and Rs.500/- each as fine.  It was  

further directed that in case of default they would undergo a further  

sentence of two months R/I.   

3

6. Aggrieved  by  the  aforesaid  judgment  the  present  

petitioners/appellants  along  with  Sangram  Singh  challenged  the  

same in appeal before the High Court.

7. The High Court  upon re-appreciation of  the entire  evidence  

upheld  the  conviction  and  sentence  of  the  appellants,  Prema,  

Khillan, Gainda and Sangram Singh.  However, the conviction and  

sentence of Sangram Singh was set aside and he was duly acquitted.

8. Against the aforesaid judgments, Khillan and Gainda Lal have  

filed the present appeal.   

9. We have heard the counsel for the parties. Learned counsel for  

the appellant submitted that the prosecution version is inherently  

improbable.  The evidence of the prosecution witnesses suffers from  

inherent contradictions.  According to learned counsel it is a clear-

cut  case  of  false  implication  due  to  old  enmity  between  the  two  

families. The presence of PW2, Prabhulal, in the field at 10 am is  

quite unnatural and doubtful.  According to the learned counsel, in  

villages people go for their ablutions early in the morning when it is  

semi-darkness.  Nobody would be seen answering a call of nature  

at  10  am.   In  any  event,  the  statements  of  this  witness  are  

contradictory.  He claims to have taken a utensil with him to wash  

4

his  face.   There  was  no  occasion  for  him  to  go  to  the  field  for  

washing his face as the houses of the parties were located in the  

fields and were very nearby.  Learned counsel further submitted that  

on the basis of the same evidence four persons were acquitted by the  

Trial Court and one by the Appeal Court.  Therefore, for the same  

reasons  the  appellants  were  entitled  to  the  benefit  of  doubt  and  

acquittal.  Making detailed reference to the evidence of the witnesses  

for  the  prosecution,  learned  counsel  submitted  that  there  are  

different  versions  given  by  the  prosecution  witnesses.   Learned  

counsel submitted that Toophan Singh could not have gone to the  

fields at 7 o’clock in the morning without wearing any warm clothes.  

He could not have been wearing only underpants in the month of  

December.  Learned counsel further submitted that Toophan Singh  

had  actually  seen  Sushila  Bai  in  a  compromising  position  with  

Baba.  He was, therefore, attacked by Baba of Toarai. According to  

the learned Counsel, Toophan Singh actually died when the tractor  

in which he was being taken for treatment overturned.  

10. Learned  counsel  further  submitted  that  the  complainant  

Prabhulal (PW2) had categorically stated his Mama, Toophan Singh,  

used to take the buffaloes to the fields for grazing every day.  On  

8.12.1991, he had also gone to the fields at about 7 am.  He had  

further stated that his Mama used to go to the fields after drinking  

5

tea and return in the afternoon for lunch.  According to the learned  

counsel if the deceased had gone after only drinking tea, he would  

not have had half digested food in his stomach. In the post mortem  

report,  it  is quite clearly stated that the stomach of the deceased  

contained half digested food. This could only be if the deceased had  

eaten about 3 to 4 hours before he died.  

11. In  order  to  discuss  the  entire  evidence  the  Trial  Court  

formulated three  main issues which needed to be decided in the  

case.   

Issue No.1 is “whether on 8.12.1991 at 10 am Toophan Singh  

died  and  his  death  is  homicide?”   The  Trial  Court  notices  the  

evidence of  Dr.  Natwar Singh (PW1) who had conducted the post  

mortem on the deceased on 9.12.1991. This witness stated that the  

following injuries were found on the deceased:-

(i) An incised chopped wound over mid of the scalp on  

both the mid parietal region centrally of shape “c”,  

of size 5cm x 5 cm x upto brain cut (meningitis and  

brain matter) clotted blood present.

(ii) An incised wound 2.5 cm x 1.5 cm x bone deep over  

right arm lower 1/3rd on lateral aspect obliquely.

6

(iii) An incised wound transversely oblique over mid of  

left thigh on lateral aspect of (illegible).

(iv) An incised wound over left  thigh middle 1/3rd on  

lateral aspect transversely 5 cm x 3 cm x muscle  

cut 1 x ½ below the injury no 3.

(v) An incised wound over mid of left leg on ant. Aspect  

of size 3 cm x 1.5 cm x bone deep.

(vi) A contusion  over  left  scrotum on anterior  lateral  

aspect 5cm x 3cm.”

This  witness  was  of  the  opinion  that  cause  of  death  of  

Toophan Singh was due to shock as a result of hemorrhage caused  

by the aforesaid injuries.

12. The second issue framed by the Trial Court was “whether all  

the  accused  armed  with  Farsas,  Luhangi lathi and  Lathi on  

08.12.1991  at  10  AM  in  furtherance  of  common  object  and  

knowledge assaulted Tufan Singh in Village Aam Khera Patharia?”  

13. Thereafter Trial Court evaluated the evidence of Prabhulal (PW  

2), Shrilal (PW 4), Phool Singh (PW 7). Prabhulal had deposed about  

the assault; whereas Shrilal and Phool Singh talked of the events  

after Prabhulal informed them of the assault on Toophan Singh by  

the accused.   The Trial  Court  noticed that  there  was hardly  any  

7

credible evidence about the assault by Durzan, Kashi Ram, Bihari  

and  Gyarsia  Lal.  Prabhulal  (PW2)  merely  stated  that  they  were  

armed with lathis, and were only standing at the spot. They did not  

participate in the crime. Therefore, they have been acquitted.

14.  The  Trial  Court  rejects  the  submissions  on  behalf  of  the  

defence  that  independent  witnesses  have  deliberately  not  been  

examined.  It is concluded that merely because of enmity between  

the two groups and the close relationship of the witnesses with the  

deceased the evidence of Prabhulal (PW2) Shri Lal (PW4) and Phool  

Singh (PW7) cannot be disbelieved.  For accepting their evidence the  

Trial Court notices that the report was immediate lodged in which  

Prabhulal  and  Phool  Singh  was  shown.   Investigation  was  also  

immediately started.  The Statements of Shri Lal under Section 161  

Cr.P.C. were recorded on the same day.  The three witnesses are  

consistent on the material facts of the incident.  The ocular evidence  

is  corroborated  by  the  evidence  of  Dr.  Natwar  Singh  (PW1)  with  

regard to the nature of the injuries, time and cause of death.   The  

injuries which were found over the dead body were mainly caused by  

sharp edged weapon which may be  farsas as well as  luhangi.  The  

Trial Court then notices the submission that semi digested food had  

been  found  in  the  intestine,  even  though,  Prabhulal  (PW2)  had  

stated  that  usually  the  deceased  was taking  tea  in  the  morning.  

8

The Trial Court was of the opinion that Prabhulal (PW2) had merely  

stated that the deceased usually consumed tea only but there was  

no statement to the effect that on that particular day the deceased  

had not eaten anything else.  The Trial Court thereafter notices the  

evidence  of  Sushila  Bai  (PW9).   It  is  noticed  since  she  did  not  

support the prosecution case she had been declared hostile.  The  

Trial Court disbelieved the witness since 5 incised injuries had been  

caused on the body of  the deceased which could only have been  

caused by a sharp weapon.  Sushila Bai had said that Baba had  

assaulted the deceased with a lathi.  The defence version that Baba  

had assaulted Toophan, because Sushila Bai had been found in a  

compromising  position  with  the  Baba,  was  disbelieved  as  no  

question was put to her on behalf  of  the accused when she was  

examined as PW 9.  The Trial Court also concludes that the injuries  

on the deceased were not the result of the tractor turning turtle on  

he was being carried. According to Dr. Natwar Singh (PW1), there  

were five incised injuries on Toophan Singh. Only injury No.6 could  

have been caused by a blunt weapon. The Trial Court also noticed  

that the weapons of offence had been recovered at the instance of  

the accused.  On the basis of the above the Trial Court concluded  

that the four accused namely Prema, Khillan, Gainda and Sangram  

Singh had inflicted the fatal injuries on the deceased.  

9

15.  The third issue framed by the Trial Court is whether on the  

aforesaid date, time and place the accused persons formed unlawful  

assembly to kill Toophan Singh with deadly weapons and using the  

force and aggressions committed while assaulting Toophan Singh.  

In  considering  this  issue  the  Trial  Court  has  reiterated  that  the  

murder was committed by the accused Prema, Khillan, Gainda and  

Sangram Singh.  It is also noticed that the participation of Durzan,  

Kashi  Ram,  Gyarsia  lal  and  Bihari  is  not  proved  by  their  mere  

presence.  These persons had no intention to kill Toophan Singh nor  

had they formed unlawful assembly to kill him.  From the above, it  

is quite evident that it was upon the thorough consideration of the  

evidence that the Trial Court has rendered its verdict.

16.  In appeal the high court re-appreciated the entire evidence,  

even more elaborately. The high court had independently reached its  

conclusions.   It is noticed that the medical evidence given by Dr.  

Natwar  Singh  clearly  shows  that  the  deceased  had  suffered  five  

incised injuries.   The injuries have resulted in the instantaneous  

death of Toophan Singh.  The High Court reiterates the reason for  

disbelieving the testimony of Sushila Bai.   On examination of the  

evidence given by Prabhulal it is noticed that PW2 had merely stated  

that his Mama goes to the fields in the morning after taking tea.  He  

usually comes back to take lunch in the afternoon.  The witness  

10

never stated that on that particular date also the deceased had only  

taken tea.  No clarification with regard to this was sought from the  

doctor by either party.  In any event   this single factor would not be  

sufficient to falsify the evidence led by the prosecution.  The High  

court also discarded the evidence of Sushila Bai on the ground that  

the identity of Baba has not been established   There was only one  

injury on the deceased which could have been caused by a blunt  

weapon.   Sushila  Bai  had  insisted  that  Baba  had  assaulted  the  

deceased  with  the  lathi.   The  High  Court  also  comes  to  the  

conclusion  that  merely  because  the  witnesses  had  been  closely  

related to the deceased and there is enmity between the families is  

no  reason  to  discard  the  evidence  which  is  consistent  and  is  

corroborated. The weapons have been recovered at the instance of  

the appellant.  It is also concluded that Toophan Singh had died due  

to the cumulative effect of all the injuries which were sufficient to  

cause  death  in  the  ordinary  course  of  nature.   The  aforesaid  

conclusion  is  also  buttressed  by  the  circumstance  that  Toophan  

Singh died immediately upon the injuries being inflicted.  Therefore  

the  High  court  had  endorsed  the  approach  of  the  learned  Trial  

Court.  Upon a close examination of the evidence of PW2 Prabhulal,  

the  High  Court  came  to  a  conclusion  that  the  presence  and  

participation of Sangram Singh in the crime was doubtful.    It  is  

observed that although the evidence of PW2, Prabhulal, and Shri Lal  

11

PW4 is consistent with regard to the role played and the weapons  

used  by  Prema,  Gainda  and  Khillan.   However  it  suffers  from  

material discrepancies/inconsistencies in relation to the role played  

and the weapons used by Sangram Singh.  It is observed that the  

statement  of  Prabhulal  is  inconsistent  with  his  statement  during  

investigation  under  Section  161 of  Cr.PC  (Ex.D1).   In  the  report  

Ex.P2 as well as in his statement under Section 161 of Cr.PC he has  

stated that Sangram Singh was carrying  luhangi.  However, in his  

statement  he  had  changed  his  version  and  stated  that  he  was  

carrying and used farsa.   This  apart  during investigation  luhangi  

was recovered and seized from his possession.  Even Shri Lal PW4  

has mentioned that Sangram Singh was having luhangi in his hand.  

Consequently  he  had  been  given  been  benefit  of  the  doubt  and  

acquitted.  

17. From the above, it becomes quite evident that appreciation of  

the evidence by the courts below cannot be said to have resulted in  

grave injustice to the accused/appellants. The findings recorded by  

the  trial  court  have  been  reaffirmed  by  the  High  Court  on  an  

independent  appreciation  of  the  evidence.  In  the  absence  of  any  

infirmity  either  in  the  appreciation  of  the  evidence  or  apparent  

miscarriage of justice, it would not be appropriate for this Court to  

interfere with the judgments of the courts below. Both the courts  

12

have painstakingly examined the entire evidence led by the parties.  

Cogent  reasons  have  been  given  in  support  of  the  conclusions  

reached  by  both  the  courts.   In  such  circumstances  this  Court  

would be rather reluctant to intervene.  Even though the powers of  

this Court under article 136 of the Constitution are very wide, but  

they are exercised only in exceptional cases where substantial and  

grave injustice has been done to the aggrieved party.  

18. The scope and ambit of the power of this Court under Article  

136 of the Constitution of India to interfere in findings of acquittal or  

conviction recorded by the courts below has been a subject matter of  

discussion in a number of decisions of this Court.  We may notice  

here only three of the earlier judgments.  In the case of Arunachalam  

v. P.S.R. Sadhanantham (1979) 2 SCC 297 this Court has observed  

as follows:

“The power is plenary in the sense that there are no  words in Article 136 itself qualifying that power. But,  the very nature of the power has led the court to set  limits to itself within which to exercise such power. It  is  now the well-established practice  of  this Court  to  permit the invocation of the power under Article 136  only  in  very  exceptional  circumstances,  as  when  a  question of law of general public importance arises or  a  decision  shocks  the  conscience  of  the  court.  But,  within  the  restrictions  imposed  by  itself,  this  Court  has  the  undoubted  power  to  interfere  even  with  findings  of  fact,  making  no  distinction  between  judgments  of  acquittal  and  conviction,  if  the  High  Court,  in  arriving  at  those  findings,  has  acted  ‘perversely or otherwise improperly.”

13

 19. Again  in  the  case  of  State  of  U.P. v.  Babul  Nath  (1994)  6  

SCC 29 this Court, while considering the scope of Article 136 as to  

when  this  Court  may  possibly  upset  the  findings  of  fact,  it  is  

observed as follows:  

“5. At the very outset we may mention that in an  appeal under Article 136 of the Constitution this Court  does not normally reappraise the evidence by itself and  go into the question of credibility of the witnesses and  the assessment of the evidence by the High Court is  accepted  by  the  Supreme  Court  as  final  unless,  of  course,  the  appreciation  of  evidence  and  finding  is  vitiated  by  any  error  of  law  of  procedure  or  found  contrary to the principles of natural justice, errors of  record and misreading of the evidence, or where the  conclusions of the High Court are manifestly perverse  and unsupportable from the evidence on record.”

20. The  aforesaid  two judgments  along  with  some other  earlier  

judgments of this Court were considered by this Court in the case of  

Ganga  Kumar  Srivastava  v.  State  of  Bihar (2005)  6  SCC 211.  In  

paragraph 10 of the aforesaid judgment this Court culled out the  

principles emerging from the earlier decisions in the following words:  

“(i) The powers of this Court under Article 136 of the  Constitution are very wide but in criminal appeals  this Court  does not interfere  with the concurrent  findings of fact save in exceptional circumstances.

(ii) It is open to this Court to interfere with the findings  of fact given by the High Court, if the High Court  has acted perversely or otherwise improperly.

(iii) It is open to this Court to invoke the power under  Article  136 only in  very exceptional  circumstances  as and when a question of  law of  general  public  importance  arises  or  a  decision  shocks  the   conscience of the Court.

14

(iv) When the evidence adduced by the prosecution fell   short of the test of reliability and acceptability and  as such it is highly unsafe to act upon it.

(v) Where the appreciation of evidence and finding is  vitiated by any error of law of procedure or found  contrary to the principles of natural justice, errors  of record and misreading of the evidence, or where  the  conclusions  of  the  High  Court  are  manifestly   perverse  and  unsupportable  from the  evidence  on  record.”

21. We have been taken through the evidence in the present case  

by the learned counsel for the parties.  We are unable to conclude  

that  the  appellants  have  been  able  to  establish  any  exceptional  

circumstances or any miscarriage of justice which would shock the  

conscience  of  this  Court.   We  are  unable  to  conclude  that  the  

opinion  expressed  by  the  courts  below  was  either  manifestly  

perverse  or  unsupportable  from the  evidence on record.  It  is  not  

possible  for  this  Court  to  convert  itself  into  a  court  to  review  

evidence for a third time. In spite of the strenuous efforts made by  

the  learned  counsel  for  the  appellants,  we  are  of  the  considered  

opinion that the present case neither raises any exceptional issue  

nor has resulted in miscarriage of justice.  

22. For the reasons stated above, the appeal is dismissed.  

15

Criminal Appeal No. 1540 of 2008 –

1. We have earlier noticed in the judgment rendered in Criminal  

Appeal  No.1540/08  that  the  evidence  of  the  prime  witness,  

Prabhulal (PW2) in relation to Sangram Singh was inconsistent and  

contradictory in nature.  There was a direct conflict in the evidence  

given  by  Prabhulal  and  Shri  Lal  (PW4).   There  was  also  

discrepancies in the statement made in Court and the statements  

made  earlier  during  investigation  as  also  in  the  report  Ex.P2.  

Consequently  the  High  Court  has  expressed  an  opinion that  the  

presence  and  participation  of  Sangram  Singh  in  the  crime  is  

doubtful.  This being a possible and a plausible view would not call  

for any interference in exercise of our jurisdiction under Article 136  

of the Constitution of India.

2. In view of the judgment passed in Criminal Appeal No.1348 of  

2007, this appeal is also dismissed.    

 …………………………..J.             [V.S. Sirpurkar]

  ……………………………J.             [Surinder Singh Nijjar]

March 09, 2010 New Delhi;   

16