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PETITIONER: MATHURA PRASHAD AND ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT04/10/1991

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) FATHIMA BEEVI, M. (J)

CITATION:  1992 AIR   49            1991 SCR  Supl. (1) 425  1992 SCC  Supl.  (1) 406 JT 1991 (4)   145  1991 SCALE  (2)798

ACT:     Constitution  of India, 1950 Article  136--Criminal  ap- peal-Concurrent  findings  of fact-Interference  by  Supreme Court---Circumstances indicated.     Indian  Penal Code,  1860--Sections  302/34---Conviction under  --Appreciation  of  evidence  by  Supreme  Court   in appeal-Non-inclusion  of  appellant’s  names  in  the  paper wherein  deceased  wrote the name of assailant  and  inquest report---Inconsistency  of witness  Evidence on  appellant’s participation--Held  guilt  of  the  appellants-accused  not proved.

HEADNOTE:     According to the prosecution, when the deceased a  peti- tion-writer, was sleeping in a room with his wife (PW.19) on the iII-fated night, he heard someone knocking at the  door. The deceased switched on the light and opened the door.  The accused  (A.1  and A.2) entered his room.  They  whipped  up their knives and gave stab wounds; one on the chest, another on the hack while bending. They also slapped and listed  the deceased.     It  was further stated that the second appellant  (A  5) caught hold of the deceased and banged him against the  wall repeatedly.  PW19  tried  to save her husband  but  she  was pushed  aside. During the course of the occurrence,  a  gold ’PUTRI’  which  PW  19  was wearing,  was  attempted  to  be snatched away from her.     The  eldest  daughter  of the deceased, PW  1,  who  was sleeping  in a room on the first floor, on hearing the  cry, got down and saw the appellants and the other accused  leav- ing  her  father’s room. The appellants while  running  away took  with  them  a box containing some  clothes  and  other articles  belonging to PW 1 and chained the doors in such  a way that the other inmates of the house could not reach  the spot.     The  deceased’s son, PW 3, who was sleeping  in  another room reached the spot. PW 15, a tenant in an adjoining  room on hearing the distress cry of PW 19, wanted to come out  of his room but he could not do 426 so  as  the house was chained from outside. He came  to  the

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spot after the door was opened.     All  the witnesses saw bleeding injuries on the body  of the deceased who was unable to speak. PW 3, at the  instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote ’Gulab Chand’ and  thereaf- ter became unconscious, and he was then taken to the Govern- ment hospital where he succumbed to his injuries.     The  two appellants (A4 and A5 before the  Trial  Court) along  with  three others were tried u/s. 302  IPC  or  u/s. 302/149 and u/s. 396, for causing the death of the deceased, accused  No.  2 stabbing the deceased with a knife  and  the rest  of the accused assaulting him and for  committing  the offence of dacoity.     The  Trial Court found the third accused not  guilty  of any  of the charges and acquitted him but  convicted  others u/s.  302  read with 34 IPC and sentenced each  of  them  to undergo  imprisonment  for life, and acquitted them  of  the offence u/s. 396 IPC.     The High Court confirmed the conviction. The present two appellants  (A4,  A5) filed the present appeal  against  the judgment of the High Court through special leave.     The  other two accused (A1 and A2) preferred a  separate special leave petition, which was dismissed by this Court. Allowing the appeal of the two accused (A4, A5), this Court,     HELD:  1. The powers of the Supreme Court under  Article 136  of the Constitution are wide but in  criminal  appeals, this  Court does not interfere with the concurrent  findings of fact, save in exceptional circumstances. [430 H]     2. Within the restrictions imposed by itself, this Court has  the undoubted power to interfere even with findings  of the fact, making no distinction between judgments of acquit- tal and conviction, if the High Court, in arriving at  those findings has acted perversely or otherwise improperly.  [431 C] Arunachalam v. PSR Sadhananthan, [1979] 2 SCC 297; State of 427 Madras  v.A.  Vaidyanatha  Iyer, [1958]  SCR  580;  Himachal Pradesh  Administration  v.  Om Prakash,  [1972]1  SCC  249, referred to.     3.01  The deceased was a petition writer and so in  that capacity  he was very well conversant as to how to  draft  a complaint. He asked for a pen and paper, and wrote the name, ’Gulab Chand’, evidently thereby saying that Gulab Chand was the  assailant. The deceased had not written any other  name except the name of Gulab Chand. Now the explanation given by the  prosecution  is that the  deceased  became  unconscious after writing this one name Gulab Chand, thereby saying  had he  not become unconscious, probably he would  have  written the name of other assailants also. [431 E-F]     3.02.  PW 19 the wife of the deceased, was  sleeping  in the  same  room in which the deceased was sleeping  did  not inform  either PW 1 or PW 2 the names of the assailants  but she gave the names only to PW 3, her son. It transpires from the  evidence  of PW 19 that after PW 1 went  to  fetch  the rickshaw,  PW 3 asked his father as to who had assailed  him and  that it was only thereafter the injured deceased  wrote the  name  of Gulab Chand on a piece of  paper.  Before  the deceased  wrote the name of Gulab Chand on a piece of  paper given by his son, PW 3, no one including PW 19 came  forward with the names of the assailants. [431 F-G]     3.03.  The evidence of PW 2 and 19 indicated that  PW  3 was  not informed of the names of the assailants before  his father  (the deceased) wrote the name of Gulab  Chand.  Till the  deceased  wrote the name of Gulab Chand on a  piece  of paper evidently PW 3 did not know as to who the assailant or

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assailants was/were. [432 F]     3.04. The Courts below have not approached this signifi- cant  aspect of this salient feature in the proper  perspec- tive. [432 G]     3.05. In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and  Gulab Chand  (A.1)  stabbed the deceased with  knives  which  case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh. P. 50. If really the  names of the two appellants had been mentioned  by  the witnesses,  those  names also would have  been  specifically mentioned in Exh. P. 24, the inquest report. [433 B-C] 428     3.06.  It is in evidence that both the  appellants  were present at the scene of occurrence when the police constable came,  but  none pointed out to the police  that  these  two appellants  also participated in the crime. The  prosecution has  not  satisfactorily established the guilt  of  the  two appellants beyond all reasonable doubt. [433 F, 434 B]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 624 of 1979.     From  the  Judgment  and Order dated  27.3.1979  of  the Madhya  Pradesh  High Court in Criminal Appeal  No.  498  of 1977.     Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain  and R.V. Singh for the Appellants. U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon- dent. The following Order of the Court was delivered:     These two appellants, namely, Mathura Prashad and  Binda Prashad have preferred this appeal questioning the  correct- ness  and  legality  of the judgment  rendered  in  Criminal Appeal  No.  498/77 by the High Court of Madhya  Pradesh  at Jabalpur  Bench. These two appellants (A4 and A5 before  the Trial  Court) along with three others, namely,  Gulab  Chand and Gulab Singh and Laxman Rao (who were arrayed as  accused Nos. 1 to 3) took their trial on the accusation that on  the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife  and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence  of dacoity.  Under  the above accusation, they were  tried  for offences  punishable u/s 302 IPC in the alternative u/s  302 IPC read with 149 IPC and also for offence u/s 396 IPC.  The Trial Court found the third accused, namely, Laxman Rao  not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and  2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life. However,  the Trial  Court  acquitted  the appellants and  the  other  two accused of the offence u/s 396 IPC.     On  being aggrieved by the judgment of the Trial  Court, the  convicted accused namely, these two  appellants,  Gulab Chand and Gulab Singh filed 429 an  appeal before the High Court which for the reasons  men- tioned in its judgment, dismissed the appeal confirming  the conviction  recorded  by the Trial Court.  Challenging  this judgment,  these two appellants filed their SLP No.  1902/79

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and the other two convicted accused, namely, Gulab Chand and Gulab  Singh  (A1 and A2) filed a separate petition  in  SLP (Crl.)  No. 1435/79. This Court by an order  dated  29.10.79 granted  leave so far as SLP filed by these two  appellants, but  dismissed  the SLP filed by the first  and  the  second accused  namely,  Gulab Chand and Gulab  Singh.  Hence,  the present appeal by these two appellants.    The  facts  of the case which led to the filing  of  this appeal are well set out in the judgments of the Trial  Court and the High Court and hence we think that it is not  neces- sary  for  us  to proliferate the same except  to  refer  to certain  salient features relevant for the disposal of  this appeal.       The  deceased Keshav Singh was a petition  writer.  He was  living  in his house at Sarkanda in Bilaspur  with  his wife  Smt. Phatokan Bai (PW 19) and two  daughters,  namely, Anjani  Bai (PW 1) and Shail Kumari (PW 2) and his son,  Ram Kumar  (PW  3) who was younger to PW 1 and eider  to  PW  2. There  were some tenants in different parts of  that  house. The accused Gulab Chand occupied a portion of that house  as a tenant, but vacated the same about two months before  this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that  of the deceased. It is alleged that the wife of Gulab Chand had complained  about some alleged misbehaviour of the  deceased with  her. According to the prosecution, when  the  deceased was sleeping in a room with his wife on the iII-fated night, he heard someone knocking at the door. On this, the deceased switched  on the light and opened the door.  This  appellant and  the  other accused entered his room.  Gulab  Chand  and Gulab  Singh whipped up their knives and gave  stab  wounds; one  on the chest, another on the back while bending.  These two  appellants slapped and fisted the deceased. It is  fur- ther stated that the second appellant herein, namely,  Binda Singh caught hold of the deceased and banged him against the wall repeatedly. PW 19 tried to save her husband but she was pushed  aside. During the course of the occurrence,  a  gold ’PUTRI’  which  PW  19  was wearing,  was  attempted  to  be snatched away from her.       PW 1 who was sleeping in a room on the first floor, on hearing  the cry, got down and saw these appellants and  the other accused leaving her father’s room. It is alleged  that the  appellant while running away took with them a box  con- taining  some clothes and other articles belonging to PW  1. According to the prosecution, the appellants had chained the doors  in  such a way that the other inmates  of  the  house could not reach the spot. 430     After  the  appellants had fled away, PW  1  opened  the doors.  PW  3 who was sleeping in another room  reached  the spot.  PW  15 was a tenant in an adjoining room  and  he  on hearing the distress cry of PW 19, wanted to come out of his room  but he could not do so as the house was  chained  from outside. Therefore, PW 15 shouted for opening the latches of the door. He came to the spot after the door was opened. One Ramji  Dayal who seemed to have played an important role  in the  prosecution, also reached the spot but he has not  been examined by the prosecution as a witness. All the  witnesses saw  bleeding  injuries  on the body of  Keshav  Singh  (the deceased  herein)  who  was unable to speak. PW  3,  at  the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote ’Gulab  Chand’ and thereafter became unconscious. The injured Keshav  Singh was then taken to the Government hospital at Bilaspur  where he  succumbed  to his injuries. The medical officer  sent  a

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requisition Ex. P 14 to the police station. PW 19, by  then, lodged the first information report Exh. P 43 at about  3.00 a.m.  on 6.12.75 before PW 21. PW 21 held inquest  and  pre- pared the inquest report Exh. P 24. During the course of the investigation,  he has seized Ex. P.50, the paper  on  which the  deceased  had written the name ’Gulab Chand’  on  being produced  by PW 3. PW 9, the medical officer  who  conducted autopsy  on  the dead body of the deceased, found  two  stab wounds and one incised wound on the person of the  deceased. PW  8, another medical officer examined accused Gulab  Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect. After completing  the investigation,  the  charge sheet was laid against  all  the accused persons.     As  aforementioned, the trial court convicted  the  four accused  inclusive of these two appellants which  conviction was confirmed by the High Court. Hence, this appeal by these two appellants.     Of  the witnesses examined, PWs 1, 2 and 19 speak  about the  participation of the appellants in the perpetration  of this  heinous  crime. No doubt both the  Courts  below  have concurrently  found that these two appellants and the  other two  accused 1 and 2 were responsible for causing the  death of  the  deceased  and consequently convicted  and  so,  the question  would be whether this Court while  exercising  its jurisdiction under Article 136 of the Constitution of India, will  be justified in interfering with the concurrent  find- ings of fact.     This  Court in Balam Ram v. State of U.P. 11975]  3  SCC 219 at 227 held, that the powers of the Supreme Court  under Article  1.36 of the Constitution are wide but  in  criminal appeals,  this Court does not interfere with the  concurrent findings of fact save in exceptional circumstances. The 431 scope of interference by this Court under Article 136 of the Constitution  of India in a case of concurrent  findings  of fact  arose in Arunachalam v. PSR Sadhanathan, [1979] 2  SCC 297  wherein  this Court has held that "Article 136  of  the Constitution  of  India  invests the Supreme  Court  with  a plenitude  of  plenary appellate power over all  Courts  and Tribunals  in India. The power is plenary in the sense  that there are no words under 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  im- posed  by  itself,  this Court has the  undoubted  power  to interfere even with findings of the fact, making no distinc- tion  between judgments of acquittal and conviction, if  the High  Court, in arriving at those findings had  acted  "per- versely or otherwise improperly". (See State of Madras  v.A. Vaidyanatha Iyer [1958] SCR 580 and Himachal Pradesh  Admin- istration v. Om Prakash, [1972] 1 SCC 249. We think that  it is  not necessary to swell this judgment by citing  all  the decisions relating to this principle of law.     When the facts and circumstances of the case are scruti- nised, in our considered opinion, they do compel this  Court to  interfere on the ground that the findings of the  Courts below suffer from the vice of perversity. I1 is the admitted case  that  the deceased was a petition writer - and  so  in that capacity he was very well conversant as to how to draft a  complaint.  He asked for a pen and paper, and  wrote  the

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name,  ’Gulab  Chand’, evidently thereby saying  that  Gulab Chand  was the assailant. The deceased had not  written  any other name except the name of Gulab Chand. Now the  explana- tion  given by the prosecution is that the  deceased  became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written  the names of other assailants also. But we have  to test  this evidence in the background of the evidence  given by  other  witnesses namely PWs ’1, 2 and 19. PW 19  who  is none  other than the wife of the deceased, was  sleeping  in the same room in which the deceased was sleeping and, there- fore,  she  must be the proper and natural witness  and  her evidence has to be given credence. PW 19 admittedly did  not inform  either PW 1 or PW 2 the names of the assailants  but she gave the names only to PW 3, her son. It transpires from the  evidence  of PW 19 that after PW 1 went  to  fetch  the rickshaw,  PW 3 asked his father as to who had assailed  him ’and  that it was only thereafter the injured  Keshav  Singh wrote  the  name  of Gulab Chand on a piece  of  paper.  The relevant portion of the evidence of PW 19 reads as follows: 432               Then Ram Kumar asked my husband as to who  had               assaulted  and he asked for a pen  and  paper.               Ram  Kumar  brought  a paper and  pen  and  my               husband  could write on it the name  of  Gulab               Chand.      In  this connection, evidence of PW 2 may also  be  re- ferred to which is as follows:               "Then  at this stage, my brother asked him  as               to who had assaulted him. My father asked by a               sign of hand for a pen and paper, whereupon my               brother  brought  the pen and paper  and  gave               that  to my father. My father wrote on  it  by               his hand; he wrote the name of Gulab Singh and               thereafter he became unconscious.’      This  dearly indicates that before the  deceased  wrote the name of Gulab Chand on the paper given by his son, PW 3, no  one including PW 19 came forward with the names  of  the assailants  but it is only thereafter, PW 19 gave the  names of  the assailants. Here also, the prosecution is  not  con- sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3). The relevant part of PW 2’s evidence reads thus:                          "Then  my  mother and  father  both               mentioned the names of the assailants. At that               time  my  brother, Ram Kumar was  also  there.               After  Ramji  had enquired,  my  brother  also               enquired  them. My father asked for by a  sign               of hand for pen and a copy."      The above extracted pieces of evidence of PWs 2 and  19 indicate  that  PW 3 was not informed of the  names  of  the assailants before his father (the deceased herein) wrote the name of Gulab Chand. Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked  his father  as to who the assailants were. In other words,  till the  deceased  wrote the name of Gulab Chand on a  piece  of paper  evidently  PW 3 did not know as to who  assailant  or assailants was/were.      It seems that both the Courts below have not approached this  significant  aspect  of this salient  feature  in  the proper  perspective. On the other hand, it has  conveniently omitted  this  significant factor from  consideration  which gives the death-knell to the prosecution case so far as  the alleged participation of these two appellants in this brutal crime.  In the inquest report Exh. P 24, it is  stated  that

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all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion  was arrived at:               ".....   the conclusion was reached  that  the               death of deceased Keshav Singh by Gulab Singh,               Gulab Chand etc. was due to knife wounds."     This ’etc.’ in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of  PWs 2  and  19 as well as the version of the  deceased  in  Exh. P.50.  If really the names of these two appellants had  been mentioned by the witnesses, those names also would have been specifically mentioned in  Exh. P :24. At this juncture, the learned  senior  counsel appearing on behalf  of  the  State referred  to a decision of this Court reported in  [1975]  4 SCC  153 Pedda Narayana v. State of Andhra  Pradesh  wherein this Court has held that the question regarding the  details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit  and scope of the proceedings under Section 174.  This decision will not be of any help to the prosecution  because only  two names are mentioned in the inquest report  as  as- sailants, leaving the names of these two appellants who  are now rightly attempting to take advantage of this conspicuous omission in Exh. P. 24.     Though PW 19 is said to be the author of Exh. P 43,  she before  the Trial Court does not claim to be the  author  of the entire averments. She states that the police who record- ed  the report, asked only her name and her  husband’s  name and  nothing  further was asked from her and she  did  state anything more than that. PW 19 further had deposed that  she did  not give the names of the accused who  assaulted,  that she did not know whether her husband was then dead or alive, that  at Thana (Police Station) she came to know  about  the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she  did not give the names of any of the assailants to  any person.     It  is  in  evidence that  both  these  appellants  were present at the scene of occurrence when the police constable came,  but  none pointed out to the police  that  these  two appellants also participated in the crime. Now the  explana- tion offered by the prosecution is that these two appellants took the constable aside and whispered something and  there- fore,  PW 1 suspecting that the police constable was  taking side with the appellants did not come forward with a  state- ment that these two appellants were also the participants in the crime. This explanation seems to have been offered  only before  the Trial Court. Both the Courts below have  conven- iently over- 434 looked and ignored all the above glaring infirmities appear- ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse.     After  meticulously and scrupulously analysing the  evi- dence,  we are left with an impression that the  prosecution has  not satisfactorily established the guilt of  these  two appellants beyond all reasonable doubt. Hence, we are unable to  agree with the findings of the lower Courts  that  these two appellants also participated in the crime with the other two accused.     In  the result, the conviction of these  two  appellants u/s  302 read with 34 IPC and the sentence  of  imprisonment

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for  life imposed therefore are set aside and both  of  them are acquitted. The appeal is thus allowed. V.P.R                                           Appeal   al- lowed. 435