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PETITIONER: BUDHWA ALIAS RAMCHARAN AND ORS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT05/10/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) KULDIP SINGH (J)

CITATION:  1991 AIR    4            1990 SCR  Supl. (2) 101  1991 SCC  Supl.  (1)   9 JT 1990 (4)    64  1990 SCALE  (2)689

ACT:     Indian Penal Code, 1860: ss. 147, 149 & 302:  Conviction under--Melee--Particularization      of     blows      given impossible--Nature  of  injuries received by  victim  impor- tant--Need  for  observance of utmost care  and  caution  in sifting evidence.

HEADNOTE:     The appellants were convicted for offence under Ss. 147, 149  and 302 IPC for murdering a villager.  The  prosecution case was that motivated by group rivalry the accused persons numbering  over fifteen attacked the deceased  with  tabbals and  lathis  while he accompanied by his mother, PW  1,  and sister,  PW 5, was on his way to a nearby village to  supply milk.  As  a result of the injuries sustained  the  deceased died on the spot. When PW 1 tried to intervene, site too was assaulted.  She  lodged  the FIR  thereafter  the  same  day against the appellants others.     At the trial PW 4 and PW 6 deposed to having seen appel- lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals  hurriedly  going towards the  place  of  occurrence ahead  of  the  deceased at a short  distance.  The  medical evidence  disclosed that the deceased had sustained  in  all seven injuries, two incised wounds on the scalp, two  contu- sions and three bruises.     The  trial court found that the appellants were  members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object. The High Court on appeal agreed with the findings of the trial court.     In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise  the necessary care and caution that was required in scrutinising the  evidence of the two eye witnesses who were close  rela- tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence  of independent corroboration the conviction based on the testi- mony of  these witnesses was unwarranted. Disposing of the appeal, the Court, 102     HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency

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to involve as many persons of the opposite faction as possi- ble  by  merely naming them as having  participated  in  the assault. The court, therefore, has in all such cases to sift the  evidence with utmost care and caution and convict  only those persons against whom the prosecution witnesses can  be safely  relied  upon without raising any element  of  doubt. [107C-D]     Baldev Singh v. State of Bihar, AIR 1972 SC 464;  Raghu- bir  Singh  v.  State of U.P., AIR 1971 SC  2156  and  Muthu Naicker  v. State of Tamil Nadu, [1978] 4 SCC 385,  referred to.     1.2  The  conviction of the appellants  was  principally based  on  the  evidence of PW 1 and PW 5,  the  mother  and sister of the deceased. Though their evidence was not to  be discarded as interested, necessary caution should have  been observed  in accepting the same in upholding the  conviction of all the appellants. [104H; 105A]     2.1  In a melee, as in the instant case,  where  several people are giving blows at one and the same time it will  be impossible  to particularize the blows. If any  witness  at- tempts  to do it, his veracity is doubtful. But, it is  sim- pler  to  make  an omnibus statement that  all  the  accused assaulted  with  their weapons because that  obviates  close crossexamination.  Therefore,  the nature of  injuries  sus- tained by the victim assumes importance. [105H; 106A]     2.2  PWs  1 and 5 stated that the accused  persons  sur- rounded  the victim and each one of them assaulted him  with the weapon they had. PW 1 stated that some of the assailants had given more than one blow, They did not state who  caused the head injuries. They have not attempted to attribute  any one  of the injuries to any particular assailant.  The  evi- dence was in general terms. If a group of more than  fifteen persons had encircled the victim and simultaneously attacked him  with tabbals and lathis without any resistance  or  any intervention, there would have been certainly  corresponding injuries  of the concerted attack on the person of the  vic- tim. The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person. [105E--G]      2.3  When  the several blows with  lathis  and  tabbals could  produce  only  seven injuries on the  person  of  the deceased the necessary inference would be that not more than seven  persons  might have participated  in  delivering  the blows. therefore, the presence of more than seven 103 persons  is doubtful. This aspect of the case has  not  been given  due weight by the High Court while  appreciating  the evidence. [105H; 106A-C]     3.1 The manner in which the incident happened also makes it  clear  that the assailants acted in prosecution  of  the common object to cause the death of the victim. There is  no doubt that more than five persons had actually  participated in the crime. There is clear evidence regarding the identity of  only four persons. Appellants Baran, Karan,  Bhagau  and Parsadi  had been located by PW 4 and PW 6, two  independent witnesses,  in the locality just before the  incident.  This evidence  lends assurance to the testimony of PW 1 and PW  5 regarding their participation in the crime. [107B-C ]     3.2 The conviction of these four persons has, therefore, been rightly sustained. Regarding the rest of the appellants there  is scope of genuine doubt. Their conviction and  sen- tence are accordingly set aside. [107D]

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JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 168 of 1979.     From  the  Judgment  and Order dated  29.9.1978  of  the Madhya  Pradesh  High Court in Criminal Appeal No.  1094  of 1976.     U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K.  Satija for the Appellants. Uma Nath Singh for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. This appeal by special leave  is  di- rected  against  the judgment of the High  Court  of  Madhya Pradesh confirming the conviction of the appellants for  the offences  under sections 147 and 302/149, I.P.C.,  and  sen- tence  to undergo imprisonment for life. The appellants  and four persons acquitted by the trial court were tried for the murder of one Hanuwa. The prosecution alleged that motivated by  group rivalry the accused persons attacked  Hanuwa  with tabbals and lathis on July 11, 1975 at about 8..30 A.M.  The occurrence happened on the track across the field leading to village Mungeli. Hanuwa accompanied by his mother  Baiyanbai and  sister  Birjhbai was on his way to  Mungeli  to  supply milk.  When  he reached Ghotora near Nayagaon  village.  the accused persons advanced towards him and mounted attack.  As a result of the injuries sustained, Hanuwa died on the 104 spot.  When  Baiyanbai tried to intervene, she too  was  as- saulted,  Baiyanbai lodged the first information  report  at 12.00 noon the same day against these appellants and  others who were finally chargesheeted.     Baiyanbai (PW- 1) and Birjhbai (PW-5) were the two  eye- witnesses  who unfolded the prosecution case. Mangal  (PW-4) and  Dilashbai  (PW-6)  deposed to  having  seen  appellants Baran,  Bhagau,  Karan  and Parsadi armed  with  lathis  and tabbals  hurriedly  going towards the  place  of  occurrence ahead  of  the  deceased at a short  distance.  The  medical evidence  disclosed that Hanuwa sustained in all  seven  in- juries: two incised wound on the scalp resulting in multiple fracture of the parietal bone and tear of right lobe of  the brain:  two  confusions and three bruises  on  the  forearm, right  upper arm scapular region and buttock. Injuries  sus- tained by PW- 1 was incised wound in between right thumb and index  finger which could be caused with any sharp  object.. The plea of the accused was that they were falsely implicat- ed  due to enmity. The learned Sessions Judge  accepted  the prosecution evidence and convicted these appellants  finding that they were members of an unlawful assembly and death  of Hanuwa  was  caused  by the members in  prosecution  of  the common  object  of the assembly. Arjun,  Bhikam,  Nanku  and Parethan  were  given the benefit of doubt in  view  of  the discrepancies  in mentioning their names and they  were  ac- quitted.  The High Court on appeal agreed with the  findings of  the  trial court and confirmed the conviction  and  sen- tence.     The  conviction of the appellants is assailed before  us mainly on the ground that the two eye-witnesses in the  case are  close  relations of the deceased deeply  interested  in involving the appellants on account of the enmity and  their evidence was required to be scrutinised with great care  and caution and the trial court as well as the High Court failed to exercise the necessary caution with the result conviction has been wrongly recorded leading to miscarriage of justice. According  to the appellants’ learned counsel, the  evidence of  the eye-witnesses read along with the  medical  evidence renders the prosecution case highly improbable and  doubtful

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about  the presence and participation of the  appellants  in the  assault. It is submitted that the tendency  to  involve innocent  persons by merely mentioning their names  is  dis- cernible and in the absence of independent corroboration the conviction  based  on  the testimony of PW- 1  and  PW-5  is unwarranted.     We  have considered these arguments in the light of  the material  evidence  analysed  and discussed  by  the  courts below.  We  find that the conviction of  the  appellants  is principally based on the evidence of 105 PW-  1  and  PW-5, the mother and sister  of  the  deceased. Though their evidence is not to be discarded as  interested, the  necessary caution has to be observed in  accepting  the evidence  of these witnesses. It is an accepted  proposition that in the case of group rivalries and enmities. there is a general  tendency to rope in as many persons as possible  as having participated in the assault. "The courts have, there- fore,  to be very careful and if after a close  scrutiny  of the evidence, the reasonable doubt arises with regard to the participation  of any of those who have been roped  in,  the court  would  be  obliged to give the benefit  of  doubt  to them", vide Baldev Singh v. State of Bihar, AIR 1972 SC 464. This Court has in several decisions pointed out that  "where there  is  enmity between the two factions then there  is  a tendency  on  the part of the aggrieved victim  to  give  an exaggerated version and to rope in even innocent members  of the  opposite faction in a criminal case and that  therefore the  Court has in all such cases to sift the  evidence  with care and convict only those persons against whom the  prose- cution  witnesses can be safely relied upon without  raising any element of doubt", vide Raghubir Singh v. State of U.P., AIR 1971 SC 2 156. On a perusal of the judgment of the  High Court,  we  find  that the necessary caution  had  not  been observed in the approach to the evidence.     The occurrence happened on a narrow track. The  deceased Hanuwa  was  going ahead of his mother and  his  sister  was still behind. The witnesses noticed the assailants only when they approached the deceased. The evidence is not clear that the  assailants  were seen by Baiyanbai or  Birjhbai  hiding behind  the  bushes and emerging from the hiding  place.  Th witnesses  stated  that the accused persons  surrounded  the victim  and each one of them assaulted him with  the  weapon they had. PW-1 stated that some of the assailants had  given more than one blow and Parsadi assaulted her when she  tried to  intervene. If a group of more than 15 persons  encircled the victim and simultaneously attacked him with tabbals  and lathis  without  any resistance or any  intervention,  there would  have  been certainly corresponding  injuries  of  the concerted  attack on the person of the victim. We  have  re- ferred to the medical evidence which shows that besides  the two  incised wounds on the scalp which proved  fatal  Hanuwa had only five minor injuries on his person. PWs 1 and 5  did not  state who caused the head injuries. They have  not  at- tempted to attribute any one of the injuries to any particu- lar assailant. The evidence is in general terms. Even in the first information report, PW- 1 only stated that the persons named  therein attacked Hanuwa with tabbals and  lathis  and caused his death. In a melee where several people are giving blows  at  one and the same time it will  be  impossible  to particularize the blows. If any wit- 106 ness  attempts  to do it, his veracity is doubtful.  But  it cannot  be forgotten that it is simpler to make  an  omnibus statement that all the accused assaulted with their  weapons

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because  that obviates close  cross-examination.  Therefore, the  nature of the injuries sustained by the victim  assumes importance.  The nature of the injury sustained in spite  of the  assertion of the concerted attack with lathis and  tab- bals  by  several assailants numbering over 15  renders  the evidence  doubtful about the participation of such  a  large number  of persons. When the several blows with  lathis  and tabbals  could produce only seven injuries on the person  of the  deceased, Hanuwa, the necessary inference is  that  not more than seven persons might have participated in  deliver- ing  the blows. Therefore, the presence of more  than  seven persons  is doubtful. This aspect of the case has  not  been given  due weight by the High Court while  appreciating  the evidence in the case.     "Where  an occurrence takes place involving  rival  fac- tions  it is but inevitable that the evidence would be of  a partisan  nature. In such a situation to reject  the  entire evidence on the sole ground that it is interested is to shut one’s  eyes to the realities of the rural life in our  coun- try. It has to be borne in mind that in such situation  easy tendency to involve as many persons of the opposite  faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and  has to be eschewed and, therefore, the evidence has to be  exam- ined with utmost care and caution and the Court has to adopt a workable test for being assured about the role  attributed to every accused" vide Muthu Naicker v. State of Tamil Nadu, [1978] 4 SCC 385.     We  have therefore to see whether the testimony of  PW-I and  PW-5 as against all or any of the appellants before  us finds  corroboration with the material on record. The  trial court  had acquitted four persons for the reason that  their names  had been left out in the narration at some  stage  or the  other.  PW- 1 before giving the first  information  had deliberations  with her son PW-3. The finding of  the  trial court  is that in narrating the incidence to him, PW- 1  had omitted  to  mention the names of Arjun and  Bhikam.  Before Court,  PW-1 did not implicate Nanku. The name  of  Parethan does not find a place in the F.I.R. It is for these  reasons the  trial  court acquitted them. On such acquittal,  it  is clear that there had been conscious effort to rope in  inno- cent persons by merely naming them. Therefore, the  apparent conflict between the medical evidence and the  eye-witness’s account could not have been overlooked. We are of the  opin- ion  that  the  High Court has not  observed  the  necessary caution in accepting the evidence in 107 general  terms  to uphold the conviction of all  the  appel- lants.     We are thus constrained to consider whether there is any evidence  from independent sources to lend assurance to  the version of PWs I and 5 regarding the participation of any of these appellants. We have indicated that the presence of  at least  seven persons at the scene is probable having  regard to the nature of the injuries and the manner of the  attack. It  is  also  clear from the manner in  which  the  incident happened  that  the assailants acted in prosecution  of  the common  object to cause the death of the victim. We have  no doubt in our mind that more than five persons have  actually participated in the crime. We have clear evidence  regarding the identity of only four persons. Appellants Baran,  Karan, Bhagau  and Parsadi had been located by PW-4 and  PW-6,  two independent  witnesses,  in  the locality  just  before  the incident. This evidence lends assurance to the testimony  of PW-  I and PW-5 regarding their participation in the  crime.

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We are of the view that the conviction of these four persons i.e.  Baran,  Karan,  Bhagau and Parsadi  has  been  rightly sustained.  However, regarding the rest of  the  appellants, there  is scope of genuine doubt and we are obliged to  give the benefit of doubt to them.     We accordingly set aside the conviction and sentence  of the  appellants.  namely, Budhwa,  Chandu.  Kushwa,  Bhuwan, Rajaram.  Nanda, Chatur, Hari Gannu, Pardeshi  and  Dukhiram and  they  are acquitted of the charges.  Their  bail  bonds stand cancelled.     The appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned. These appellants shall surrender to suffer the unexpired portion of the sentence. The appeal is disposed of as above. P.S.S.                                         Appeal   dis- posed of. 108