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CASE NO.: Appeal (crl.)  39 of 2007

PETITIONER: State of Madhya Pradesh

RESPONDENT: Bacchudas @ Balram & Ors

DATE OF JUDGMENT: 10/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2622 of 2006)  

Dr. ARIJIT PASAYAT, J.          Leave granted.   

Challenge in this appeal is by the State of Madhya  Pradesh to the judgment rendered by a Division Bench of the  Madhya Pradesh High Court, Jabalpur Bench at Gwalior,  directing acquittal of the respondents.  The trial court had  found the respondents (hereinafter referred to as the ’accused’)  guilty of offence punishable under Section 304 (Part II) of the  Indian Penal Code, 1860 (in short the ’IPC’) read with Section  34 IPC.  Each of the accused persons was sentenced to  undergo rigorous imprisonment for five years and to pay a fine  of Rs.2000/- with default stipulation.   

The respondents faced trial because of the following  accusations:-

On 10.08.2002 at about 8 in the night  Dropadi  Bai   (PW-1) lodged FIR at the Police out-post Bhatnavar. It was  mentioned in the FIR that at about 7-8 A.M. complainant had  gone to the agricultural field. Her husband-Munshi   (hereinafter referred to as "deceased")  had gone to work in the  shop of Bacchanlal Bania. When she returned in the evening,  she enquired about her husband from her son Banti (PW-2).  Arun Das who  informed her that when deceased  was going to  the shop at about 10 A.M. after having his meals, he was  caught on way near the house of Dobalia by accused Bacchu.  Satish, Avdhesh and Hariom and was beaten by them. Banti  (PW-2) was told to run away from the spot,  otherwise he will  also be beaten. Out of fear he ran back home, but had not told   anyone about the incident. Then complainant Dropadi went to  the house of Bacchudas Bairagi and Ramsingh Kotwar and  narrated the incident. She alongwith Bacchudas and  Ramsingh went to the old house of Shankar Bairagi and  Hariom. The house was used as cattle shed by Bacchu. It’s  doors were not locked from inside. They found the deceased  dead and was tied by the rope. On enquiry from neighbours  Subhran told them that Bacchu, Satish, Avdhesh and Hariom  had beaten the deceased and thereafter he was dragged inside  the room. Rope was tied in his neck and neck wad throttled,  which resulted in his death. Thereafter they hanged the dead  body and ran away. When complainant saw   the dead body,  she found injury below left shoulder and both toes were  bleeding. On account of previous enmity on account of

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purchase of Rundh of Charnu kirar, Bacchu claimed that he  has paid Rs.1000/- to Charnu Kirar and he was demanding  the same from Dropadi or in alternative he was asking Dropadi  Bai to live as his wife. On the date of incident in the morning  when she had gone to fetch water at the public tap, Hariom  and Bacchu met her. Both the accused asked her to  accompany them and it was objected by her husband Munshi.  At this Hariom and Bacchu threatened Munshi with dire  consequences and went back. It is mentioned in the FIR that  only on account of this incident Bacchu, Hariom, Avdhesh and  Satish had killed the deceased. After the investigation, challan  was filed in the Court and committal of the case to the  Sessions Court, charges under Section 302 read with Section  34 IPC were framed. On appreciation of evidence, trial Court  convicted the accused persons.  

The evidence of three witnesses, i.e. Dropadi Bai-PW1  (widow of the deceased), Arun Das, PW-2 (son of the deceased)  and Vinod (PW-11), another child witness, were found to be of    consequence by the trial court.  The trial court found that the  circumstances highlighted presented a complete chain and  therefore, guilt of the accused persons was established.   Accordingly, they were convicted and sentenced as afore- stated.  In appeal, the High Court found that the evidence of  Vinod (PW-11), the child witness was unbelievable.  Similar  was the evidence of Arun Das (PW-2).  It was noted that the  silence of PW-2 for about six hours was unusual.  Further the  evidence of Dropadi (PW-1) was at variance with that of PW-2.   A different version of the incident was indicated in the first  information report.  Therefore, the High Court concluded that  prosecution has not established the accusations.

In support of the appeal, learned counsel for the  appellant-State submitted that the evidence of PW-2 was  natural. Merely because he had not disclosed about having  seen the incident for a considerable length of time, that is not  sufficient to discard the prosecution version.  Additionally,  PW-11, the child witness has given a believable version and  his evidence should not have been discarded.   

In response, learned counsel appearing for the  respondents submitted that the evidence of the witnesses has  been rightly discarded.  

Though silence of a witness per se may not render  prosecution version suspect, in the present case what has  been disclosed by PW-2, the so called child witness is also not  found credible, particularly when considered in the  background of PW-1’s evidence.

The High Court has noticed several inconsistencies in the  prosecution version.  Apart from the fact that PW-2’s conduct  was unusual, the version he had supposedly stated to his  mother is at variance with what the mother PW-1 states.   Evidence of PW-1 has been rightly discarded by the High  Court. It is noted that the version given in the first information  report varies from the evidence given in the Court.  Dropadi  Bai was the informant.  She has stated in her evidence that  her son told her that her husband was hanged by the accused  persons.  Arun Das (PW-2) gives an entirely different version.   Dropadi  Bai had deposed that she went to the police station,  and lodged the report and then she returned alongwith police  and found dead body of her husband.  This is at variance with  the evidence of Kashidas (PW-12) and Ram Singh (PW-13) who  had deposed that Dropadi Bai (PW-1) told them that accused

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had murdered her husband after seeing the dead body and  then they went to the police station to lodge the report along  with Dropadi Bai.  Ram Singh (PW-13) had further deposed  that when police returned along with Dropadi her son Banti  (PW-2) had shown the hanged dead body to the police.

There is no embargo on the appellate court reviewing the  evidence upon which an order of acquittal is based. Generally,  the order of acquittal shall not be interfered with because the  presumption of innocence of the accused is further  strengthened by acquittal. The golden thread which runs  through the web of administration of justice in criminal cases  is that if two views are possible on the evidence adduced in the  case, one pointing to the guilt of the accused and the other to  his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the court  is to ensure that miscarriage of justice is prevented. A  miscarriage of justice which may arise from acquittal of the  guilty is no less than from the conviction of an innocent. In a  case where admissible evidence is ignored, a duty is cast upon  the appellate court to re-appreciate the evidence where the  accused has been acquitted, for the purpose of ascertaining as  to whether any of the accused really committed any offence or  not. (See Bhagwan Singh v. State of M.P, 2003 (3) SCC 21).  The principle to be followed by the appellate court considering  the appeal against the judgment of acquittal is to interfere only  when there are compelling and substantial reasons for doing  so. If the impugned judgment is clearly unreasonable and  relevant and convincing materials have been unjustifiably  eliminated in the process, it is a compelling reason for  interference. These aspects were highlighted by this Court in  Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2)  SCC 793), Ramesh Babulal Doshi v. State of Gujarat (1996 (9)  SCC 225), Jaswant Singh v. State of Haryana (2000 (4) SCC  484), Raj Kishore Jha v. State of Bihar (2003 (11) SCC 519),  State of Punjab v. Karnail Singh (2003 (11) SCC 271), State of  Punjab v. Phola Singh (2003 (11) SCC 58), Suchand Pal v.  Phani Pal (2003 (11) SCC 527) and Sachchey Lal Tiwari v.  State of U.P. (2004 (11) SCC 410).  When the conclusions of the High Court in the  background of the evidence on record are tested on the touch-  stone of the principles set out about, the inevitable conclusion  is that the High Court’s judgment does not suffer from any  infirmity to warrant interference.

The appeal is dismissed.