‘REPORTABLE’

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1368 OF 2003

Bhagwati Prasad …. Appellant

Versus

State of M.P. …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. Appellant herein, who was original accused No. 6 (A-6) in the trial,  

has challenged the judgment of the High Court, allowing the State’s Appeal  

and setting aside the judgment of acquittal passed by the Trial Court.  All  

the accused persons were tried for the offences punishable under Sections  

148 and 149 read with Section 302 of the Indian Penal Code (hereinafter  

called “IPC” or short), while the charge against the present appellant was  

substantively for the offence under Sections 148 and 302 IPC.

1

2. The  allegation  was  that  all  the  accused  persons,  six  in  number,  

formed an unlawful  assembly and by way of a common object  thereof,  

committed murder of one Ramgopal (deceased) on 18.2.1984 at about 7  

A.M.  As per the prosecution story, a report came to be lodged by one  

Kedar Prasad (PW-2) of Bansipura, the brother of Ramgopal (deceased) in  

Police Station Ambah to the effect that he alongwith the deceased and  

neighbour farmer Ramgopal (PW-3) S/o Tularam had gone to irrigate their  

field from the canal in Village Lahdaria situated at a distance of 12 K.M.  

When they opened the canal for irrigation, at that time, Bhagwati (appellant  

herein), armed with spear and the other accused persons armed with Lathi  

came there and stopped them from opening the canal.  The said accused  

persons  belonged  to  Village  Lahdaria  and  they  were  staying  nearby.  

There  were  arguments,  as  the  accused  persons  objected  to  the  

complainant  party  taking  water  from  the  canal  while  the  complainant  

insisted upon taking water, on which Baburam, original accused No. 1 (A-

1)  gave  Lathi  blow  upon  Kedar  Prasad  (complainant/  PW-2).   When  

Ramgopal (deceased) came to his rescue, Bhagwati (A-6) gave a spear  

blow on Ramgopal’ back, as a result of which Ramgopal fell down.  It was  

further stated that other accused persons, namely, Devi Prasad, original  

accused  No.  5  (A-5),  Hari  Shankar,  original  accused  No.  2  (A-2)  and  

Radhacharan,  original  accused  No.  3  (A-3)  also  gave  Lathi  blows  on  

injured Ramgopal (deceased).  Ramgopal was then taken to Ambah, but  

2

he died on the way.   

3. On  receipt  of  the  information,  the  usual  investigation  started.  

Inquest report was drawn and the body of Ramgopal (deceased) was sent  

for post mortem examination, which was conducted by Dr. K.S. Chauhan  

(PW-1).   In  the  post  mortem report,  it  was  shown  that  the  death  was  

caused  because  of  the  piercing  blow,  due  to  which  right  lung  was  

damaged by penetrating spear.  After the registration of offence, Sambhu  

Singh, Sub-Inspector (PW-9) arrested all the accused persons, who were  

initially absconding.  After their arrest, Bhagwati (appellant herein) agreed  

to discover the spear used in the crime from the wheat field, which was  

accordingly recovered from that place.  So also, the other accused persons gave  

information leading to the recovery of their respective Lathis, which were used in  

commission  of  crime.   The  spear  was  sent  to  Forensic  Science  Laboratory,  

Sagar, M.P. and after completion of the investigation, the chargesheet was filed.

4. The Trial Court acquitted all the accused persons of all the offences.  The  

Trial Court held that there was no direct evidence for common object.    It was  

also held that the two eye-witnesses, namely,  Kedar Prasad (PW-2),    being  

the brother of Ramgopal (deceased) and Ramgopal (PW-3) S/o Tularam, being  

the cousin of the deceased could not be relied upon.  After quoting  from their  

evidence,  the  Trial  Court  found  two  irregularities,  which  

according to the Trial Court were substantial.  The first was relating to the  

3

spot of occurrence not being properly identified.  For this, the Trial Court  

found that there was contradiction in the version of the eye-witnesses and  

the spot map (Exhibit P-4).  The second irregularity, according to the Trial  

Court, was about the inquest panchnama (Exhibit P-12), which was found  

to be torn.   According to the Trial Court, the Police had failed to supply the  

carbon copy of the panchnama, though direction was given by the Court,  

which was not complied with by the Police.  According to the Trial Court  

that  panchnama  was  deliberately  held  back.   By  way  of  some  other  

irregularities,  the  Trial  Court  found  that  there  was  contradiction  in  the  

version of Kedar Prasad (PW-2) and Ramgopal (PW-3) about existence of  

the blood in the field and the spot on which the blood was found.  One  

more contradiction was found in the evidence of Ramgopal (PW-3) as to  

whether he was accompanying the complainant party or whether he had  

joined them some time later. On these grounds, the Trial Court came to the  

conclusion that the prosecution case was not proved.

5. This order was appealed against before the High Court.  The High  

Court, in its well considered judgment, discussed all the issues.  The High  

Court firstly held that it had the full powers to review the evidence being  

the Court of Appeal.  The High Court then examined the principles to be  

adopted in appeal against acquittal for appreciation of evidence.  The High  

Court  then  went  on  to  hold  that  the  traumatic  and  homicidal  death  of  

4

deceased was proved.  After discussing the medical evidence, the High  

Court firstly dealt with the caustic remarks by the Sessions Judge against  

the Police.  Those remarks are to be found in Paras 13 and 14 of the  

judgment  of  the  Trial  Court.   It  so  happened  that  some  portion  of  

panchnama (Exhibit P-12) was not to be found.  The Trial Court held that  

that portion of the original panchnama was deliberately torn.  It seems that  

the  Sessions  Judge  had  directed  production  of  carbon  copy  of  some  

documents and written some letters (Exhibits C-1 to C-4).  However, it was  

pointed out by the Public Prosecutor that the originals of Case Diary and  

the documents were already there before the Court and, therefore, there  

was no question of producing the carbon copy of the record.  This was not  

taken very well by the Sessions Judge and he observed in Para 13 of his  

judgment that :-

“13. ………  It is the matter of regret that police has treated this  Court just like defence and enemy.  When the police has such  respect towards Court, then bad day of judiciary has come.  It  is  said  that  till  today people  has  faith  upon judiciary.   The  people should be ready to bear bad result.”

Further, in Para 14, the Sessions Judge held that:-

14. Fact  is  not  so  simple,  Chor-ke-dadhi-me-tinka’s  fact  is  materialized  in  this  case.   Carbon  copy  of  case  diary  is  intentionally concealed.  Had the carbon copy produced, then  purpose of tourning of bottom portion of panchnama of dead  body (P-12) would have been clearly proved or the good-faith  of  prosecution have been proved…………..…………..  From  

5

the activities of non-producing the carbon copy of diary into  the  Court,  it  can  be  easily  said  that  this  person  Shri  R.B.  Sharma,  S.P.O.  (Police),  Ambah  is  himself  responsible  for  tourning  (probably  tearing)  of  panchnama  of  dead  body  to  save his under-working employee.  He cannot take the risk of  contempt of Court and hence, there is sign of second offence.”

The High Court noted this and found that all these comments were  

completely unwarranted, irrelevant and unnecessary for the decision of the  

case.   It  was  further  observed that  no explanation of  the Reader,  who  

keeps the record, was taken on 22.8.1985, when one R.N. Sharma (PW-

6), who prepared the inquest panchnama, was examined and no question  

was  put  to him.  The High Court  thus found that  at  least  till  that  date,  

inquest panchnama was intact.  It further expressed that perhaps it was  

torn or mutilated while handling the file.  The High Court further found that  

copy of the panchnama was supplied to the defence and the Trial Court  

either should have taken such copy from defence or could have written a  

suitable memo to the S.P. for sending carbon copy of the same, explaining  

the situation.   The High Court  also observed that  sending the APP for  

obtaining the carbon copy and insisting upon his personally talking to S.P.  

was an unnecessary exercise.  The High Court also observed that drawing  

of any adverse inference therefrom was unwarranted.   

6. High Court then discussed the evidence of two eye-witnesses being  

Kedar Prasad (PW-2) and Ramgopal (PW-3) in details and came to the  

conclusion that their evidence was credible and unshakable.  For this, the  

6

High Court also relied on the medical evidence of Dr. K.S. Chauhan (PW-

1) and the further fact that even Kedar Prasad (PW-2) and Ramgopal (PW-

3) had sustained injuries in the same occurrence.  The High Court rejected  

the  claim of  the  defence  that  these  two  witnesses  were  relations  and,  

therefore, their evidence was liable to be rejected.  For this proposition, the  

High Court relied on the decisions in  Rachamreddi Chenna Reddy Vs.  

State of A.P. [1999 (3) SCC 97], Lilaram (Dead) through Duli Chand  

Vs. State of Haryana & Anr. [1999 (9) SCC 525], State of Rajasthan Vs.   

Hanuman [2001(1) SCC 337]  and  Munshi Prasad & Ors. Vs. State of   

Bihar [2002(1) SCC 351].   

7. The High Court also discussed the evidence of Amar Singh (DW-1),  

Omprakash (DW-2), who were the relatives of the accused persons, as  

also  Gopinath  (DW-3),  brother-in-law  of  the  sister  of  Bhagwati  Prasad  

(appellant herein).  Gopinath (DW-3) was examined to prove the alibi of  

Bhagwati Prasad (appellant herein), however, the High Court rejected that  

claim.   The High Court  also refused to draw adverse inference for  not  

examining some other witnesses like Ramdayal and Bansi, since they had  

come to the place of occurrence, only after the incident.  The High Court,  

in Para 18 of its judgment, has discussed the topography of the place of  

occurrence and critically examined the evidence of Vishram Palia (PW-8),  

Head Constable and Jamna Prasad (PW-7), Patwari, who had drawn the  

7

spot map.  It also examined the placement of Canal, Bamba and aqueduct.  

The claim of the defence that there was a serious discrepancy in respect of  

the place of occurrence was rejected by the High Court and concluded that  

the Trial Court had over-emphasized on this issue.  The High Court then  

recorded that the defence had no alternative case to suggest that event  

had happened anywhere else.  The defence had merely suggested that  

someone had murdered Ramgopal (deceased) in the night by the side of  

outlet  of  canal (Bamba) and a false case had been framed against  the  

accused.   The  High  Court,  therefore,  came to  the  conclusion  that  the  

actual spot of dispute was of no consequence and the two injured eye-

witnesses,  namely,  Kedar  Prasad  (PW-2)  and  Ramgopal  (PW-3)  had  

clearly supported the prosecution case and, therefore, in keeping with the  

law laid down by this Court in Shankar Mahto Vs. State of Bihar [2002(6)   

SCC  431],  the  minor  discrepancies,  if  at  all,  were  not  sufficient  to  

disbelieve the evidence of two eye-witnesses.  It was pointed out that there  

was  no previous enmity between the parties and the incident  arose on  

account of opening of the aqueduct for irrigation.   

8. The High Court further found that participation of Devi Prasad (A-5),  

Hari Shankar (A-2) and Radhacharan (A-3) was not proved beyond doubt  

and proceeded to acquit them.   It was also held that the participation of  

five persons was not proved and there could not be the common intention  

8

also  of  Baburam (A-1)  and  Bhagirath,  original  accused  No.  4  (A-4)  to  

cause death of the deceased.  Ultimately, in Para 20 of its judgment, the  

High Court pointed out that the offence on the part of the present appellant  

could not be that under Section 302 IPC and it was only covered under  

Section 304 Part II IPC, while Babulal (A-1) and Bhagirath (A-4) were held  

guilty for the offences punishable under Section 323 IPC.  In that view, the  

appellant was awarded 5 years’ rigorous imprisonment, while Babulal (A-1)  

and Bhagirath (A-4) were sentenced to undergo simple imprisonment till  

rising of the Court and to pay a fine of Rs.1,000/-, in default of payment of  

which, to undergo rigorous imprisonment for 3 months.

9. Shri S.K. Dubey, Learned Senior Counsel appearing on behalf of the  

appellant led great stress on the spot, where the incident allegedly had  

occurred.  He also took us through the evidence of the eye-witnesses and  

urged that the High Court had erred in setting aside the well considered  

verdict  of acquittal  by the Trial Court.   Shri Dubey firstly urged that the  

change  of  spot  of  occurrence  was  apparent  as  the  place  where  the  

incident allegedly took place, did not have any blood, though according to  

the witnesses, Ramgopal (deceased) had fallen down on that place.  It is  

to be noted that Kedar Prasad (PW-2) had not referred to any spot of blood  

in the field of  the complainant,  while as per the evidence of  Ramgopal  

(PW-3),  there  was  blood  at  one  spot.   Ramgopal  (PW-3)  went  on  to  

9

depose that he had shown the spot where there was presence of blood  

and Vishram Palia (PW-8), Investigating Officer had also seized the blood-

stained  earth  from the  place  of  incident.   In  Para  9  of  his  deposition,  

Ramgopal  (PW-3)  had  deposed  that  the  place  where  Ramgopal  

(deceased) had fallen, there was presence of blood on that spot in the  

field.  When we see the evidence of Vishram Palia (PW-8), Investigating  

Officer,  he  asserted  that  there  was  no  blood  found  in  the  field.   The  

Learned Senior Counsel for the appellant, therefore, argued that the whole  

prosecution claim is contradictory as according to Kedar Prasad (PW-2),  

incident took place near the canal.  There was no blood to be found at that  

spot or even at the spot where the aqueduct was sought to be opened by  

the deceased.  In comparison to this, on the claim of Ramgopal (PW-3)  

that  there  was  blood somewhere  in  the field and it  is  at  that  spot  that  

Ramgopal  (deceased)  was  assaulted,  the  Learned  Senior  Counsel  

contended that this only suggested that both the eye-witnesses were lying  

completely and the whole incident was imaginary.   

10. We cannot accept this contention.  The version of Ramgopal (PW-3)  

that  he  showed  the  blood  spot  to  Vishram Palia  (PW-8),  Investigation  

Officer  and  that  there  was  blood,  has  to  be  rejected  as  exaggeration.  

Instead of relying on the evidence of a villager regarding the blood spot,  

we  would  chose  to  accept  the  evidence  of  Vishram  Palia  (PW-8),  

10

Investigation  Officer,  who  very  specifically  asserted  that  there  was  no  

blood anywhere in the field.  The Learned Senior Counsel argued that it  

was impossible that the blood would not come out of the body, however,  

the Learned Counsel appearing on behalf of the State pointed out that it is  

not  necessary  that  the  blood  would  flow  like  tap-water  from  a  single  

wound, even if the said wound proved fatal, as has been asserted by Dr.  

K.S. Chauhan (PW-1).  It must be borne in mind that the deceased, at that  

time, was wearing a vest and a shirt above and even if the blood came out,  

it  could  be  soaked  in  the  clothes  worn  by  the  deceased  at  that  time.  

Therefore, the Learned Counsel for the appellant urged that the evidence  

of Vishram Palia (PW-8), Investigation Officer would be more acceptable  

and  appropriate.   The  Learned  Senior  Counsel  is  undoubtedly  right.  

Further, there is no evidence that any artery of the deceased was cut.  This  

is apart from the fact that there was no cross-examination of Kedar Prasad  

(PW-2) on this issue.  The Learned Counsel for the State rightly pointed  

out  that  in  the spot-map or  in  the observation panchnama,  there is  no  

place shown as blood-stained and had the blood been present there, there  

was  no reason for  the prosecution to hide that  spot  or  to avoid stating  

about that.  In our opinion, the existence of blood or absence thereof would  

by itself not be such a fact as would completely wipe out the evidence of  

two eye-witnesses.   

11

11. In fact, much confusion was caused on account of the use of three  

words, namely, canal, Bamba and cool.  The witnesses have specifically  

explained that the main canal was on the Northern side of the two adjacent  

fields of the complainant.  Bamba, i.e., outlet of canal is from that canal on  

the Northern side and the water  then comes in that small  outlet,  which  

feeds  Eastern  side  field  of  the  complainant.   Adjacent  to  that  field  is  

another field of the complainant and naturally, in order to draw water from  

Bamba, there has to be an aqueduct, which would go up to the adjacent  

field of the deceased.  It is at that spot that the incident must have taken  

place.  This situation is explained by Kedar Prasad (PW-2).  He says in  

Para 15 of his deposition that on the earlier day of the incident, water from  

the canal was released in his field; the water was released firstly in the  

canal and they (complainant party) went in the morning to open the water  

in his field.  He was specific that before that, water was not flowing in the  

canal.  He was obviously referring to the Northern side main canal.  Much  

was made by the learned defence Counsel that the word used is “canal” in  

the  First  Information  Report  and,  therefore,  urged  that  the  spot  of  

occurrence must be near the canal in the Northern side.  This is obviously  

impossible  for  the  simple  reason  that  both  the  eye-witnesses  are  

unanimous  on  the  point  that  the  incident  took  place  in  the  field  of  

complainant, which was not adjacent to the main canal flowing East-West  

12

on the Northern side.  The witness Kedar Prasad (PW-2) has specifically  

deposed:-

“When water  is opened from canal,  it  comes to bomba and  thereafter when bomba opens then comes to cool and when  cool is opened, it comes to field.”

As regards the spot of occurrence, the witness said in para 18 of his  

deposition that:

“Murder took place in the field situated near Lahdaria village.  Murder  was  not  taken place in  the field  situated near  road  named Ambah Used Ghat.”

The witness was very specific in his answer  when he was asked  

whether Investigation Officer collected the blood from the place of incident.  

He deposed:-

“I do not know whether I.O. had collected blood at the time of  preparation of spot map.  I do not know whether blood was  present on the place of incident.”

Ramgopal (PW-3) also asserted that:-

“Quarrel had taken place on the issue of water.  Kedar was  releasing water in his field.  He was releasing water from the  cool.”

Ramgopal (PW-3) was very specific that the murder took place in the  

field of Kedar Prasad (PW-2).  In his cross-examination, he stated that he  

was  not  called  by  Ramgopal  (deceased)  or  Kedar  Prasad  (PW-2)  to  

irrigate the field and that he was going to his own field alongwith them.  

13

The Learned Senior  Counsel  for  the appellant  found fault  with  this  and  

according to the Learned Senior Counsel, since the version was that he  

was going for irrigating his field and since the version of Kedar Prasad  

(PW-2) was that this witness was going with them to their field, this witness  

was lying.  The argument is correct.  What was the purpose of this witness  

in going was not material.  Whether the witness was there or not at the  

time of assault on Ramgopal is the material fact.  It was obvious that he  

may have gone to the spot either for irrigating or for collecting grass from  

his own field.  The purpose is irrelevant.  Therefore, the contention of the  

Learned Senior Counsel is not right.   

As regards the incident and topography, Ramgopal (PW-3) says that:-

“It is true that water is first released from canal to the Bomba  and when released from Bomba then it  comes to cool  and  when it released from cool then it comes to Baraha and when  it is released from Baraha then it comes to field.  No quarrel  had taken place when water was opened from canal.  Bomba  from the canal  came upto Lahdaria Village and take a turn  therefrom.  I do not know the distance between the place of  murder and the place of cool where from water released for  Baraha.  Even I cannot say the distance in yard, hand, fields,  steps etc.”

He, however, refuted the suggestion that the quarrel has taken place  

where the water was released from the canal.  He further asserted that:-

“It  is also not a fact  that when water  open from canal then  accused  persons  came  with  lathi  and  Ballam  and  started  qurreling and mar-pit. “

14

Now, such suggestion, in our opinion, was a suicidal suggestion.  It  

merely established the presence of the accused persons with weapons,  

which they handled.  The witness further specified that when water was  

opened from cool, then mar-pit  had taken place.  It must be realized that  

vocabulary and the terms used by the villagers could always be confused  

by  the  police  when  they  recorded  their  statements.   Much  importance  

cannot be given to such minor discrepancies.  The broad features of the  

evidence were that the complainant party wanted to irrigate their field and  

for that they wanted to open the aqueduct for supplying water to their field  

and it was at that spot that the incident took place.  Once the evidence of  

the two eye-witnesses, who themselves were injured eye-witnesses, was  

accepted by the High Court after the detailed consideration and when they  

asserted that the incident took place in the field of the complainant and  

when placement of the field of the complainant was fixed by the evidence,  

the  evidence  becomes  immediately  acceptable  and  then  such  minor  

discrepancy whether it was spot ‘A’ or spot ‘B’, would be pushed to the  

background.  Such minor discrepancy cannot affect the whole prosecution  

story.  It is only when the defence is able to establish that the change of  

the spot was deliberate and such a change was so substantial as would  

affect  the  whole  prosecution  story,  that  such  discrepancies  assume  

15

importance.  In the present case, it  was clearly an open and shut case  

where the two eye-witnesses in the broad day light witnessed the attack by  

the accused persons.  There was absolutely no variance in the version of  

the two eye-witnesses to the effect that it was the present appellant, who  

gave  the  spear  blow  on  the  back  of  the  deceased.   It  must  be  seen  

immediately  that  both  the  witnesses,  i.e.,  Kedar  Prasad  (PW-2)  and  

Ramgopal  (PW-3)  were  injured  and  there  was  no  explanation  for  their  

injuries.

12. Shri S.K. Dubey, Learned Senior Counsel for the appellant tried to  

suggest that in the medical certificate, age of the injuries was mentioned  

as 24 hours.  Now, it is obvious that the maximum duration of the injuries  

was stated in the medical certificate.  What was meant was that the injuries  

could have been caused within 24 hours from the time the witnesses were  

examined by the Doctor.  Shri Dubey again pointed out that in the post  

mortem report, the age of the injuries of the deceased was mentioned as 6  

hours.   It  must  be  borne  in  mind  that  in  the  post  mortem report,  the  

determination of precise duration of the injuries can be possible due to the  

internal  examination  of  the  injuries,  whereas  no  such  advantage  is  

available  to the Doctor  when he examines the injuries in  the nature of  

contusions.  Therefore, normally the approximate duration is indicated in  

16

such certificates.  We are not impressed by the argument of the defence  

on this aspect and reject the same.

13. It was also tried to be argued by the Learned Senior Counsel for the  

appellant  that  there  were  certain  discrepancies  in  the  First  Information  

Report (FIR), like from the FIR, it  was suggested as if  the incident had  

taken place near the canal.  We have already considered this contention  

that the use of the word “canal” may be because of the impression of the  

Constable, who wrote the report in vernacular.  That, however, will not take  

the spot of occurrence near the canal on the Northern side.

14. We are,  therefore,  of  the  clear  opinion  that  the  High  Court  was  

absolutely right in upsetting the judgment of acquittal passed by the Trial  

Court and convicting the accused persons.

15. Shri  S.K.  Dubey,  Learned  Senior  Counsel  for  the  appellant  then  

contended that the sentence of five years is too harsh, considering the fact  

that the prosecution is pending for so many years.  We do not think that  

the sentence of five years is unduly harsh, considering that a life is lost and  

that  too  without  any justification.   In  the  result,  the  appeal  fails  and is  

dismissed.

17

CRL. M.P. NO. 18556 OF 2009  

In  view  of  the  order  passed  in  the  main  appeal,  this  application  has  

become infructuous and is accordingly dismissed.

.………………………..J. [R.V. RAVEENDRAN]

.………………………..J. [V.S. SIRPURKAR]

………………………..J. [DEEPAK VERMA]

NEW DELHI December 03, 2009.  

18

19