REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 386 OF 2007 DADAN … APPELLANT

VERSUS

STATE OF MADHYA PRADESH … RESPONDENT THROUGH SHO, PS SATNA (M.P.)  

J U D G M E N T

C.K. THAKKER, J.

1. The  present  appeal  is  filed  by

appellant Dadan-Accused No. 2 in Sessions Trial

No. 39 of 1992 being aggrieved and dissatisfied

with the judgment and order of conviction and

sentence dated September 11, 1998, recorded by

the Court of Additional Sessions Judge, Satna

(Madhya  Pradesh)  and  confirmed  by  the  High

Court of Judicature at Jabalpur, M.P. on April

25, 2006 in Criminal Appeal No. 2444 of 1998.

2. Shortly stated the facts of the case

are  that  according  to  the  prosecution,  the

incident in question took place on December 14,

1990 at 07.05 p.m. at Kabari Tola, District

Satna in front of Pan shop of one Bablu.  The

case of the prosecution was that on the fateful

day, all the accused were standing near the

shop of Bablu. Jawaharlal Sahu (deceased) came

there on his scooter. All the accused persons

were waiting for the deceased. They formed an

unlawful assembly whose members were armed with

deadly  weapons  like  gupti,  knife,  iron  rods

etc. The common object of the accused persons

was to kill Jawaharlal. On seeing Jawaharlal,

all the accused started inflicting injuries on

him. Jawaharlal cried for help. His brother PW

5 Motilal who was sitting at the watch shop of

Ramcharan Singh, immediately reached there to

rescue  him,  but  he  was  also  beaten  by  the

accused  persons  and  serious  injuries  were

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caused to him.  The incident was witnessed by

PW  7  Hiralal,  father  of  the  deceased,  PW  9

Janki Bai, mother of the deceased as also PW 10

Bharat Kumar, brother of the deceased.  Other

persons also came there. The accused fled away.

Jawaharlal died due to injuries sustained by

him.  Motilal  was  taken  to  hospital.  First

Information  Report was  lodged immediately  at

8.45 p.m. The accused were arrested on the next

day, i.e. December 15, 1990.  They were charged

for  commission  of  offences  punishable  under

Sections 148, 302 read with 149 as also Section

307  read  with  149,  Indian  Penal  Code,  1860

(IPC).  Usual investigation was carried out and

the case was committed to the Court of Session

by the Chief Judicial Magistrate since it was

exclusively triable by the Sessions Court.

3. The plea of the accused was recorded.

They denied having committed any offence and

claimed to be tried.

4. At  the  trial,  the  prosecution,  in

support  of  the  case,  examined  fifteen

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witnesses.   The  accused  in  their  defence

examined four witnesses.

5. The  Sessions  Court  on  the  basis  of

medical  evidence  came  to  the  conclusion  and

recorded a finding that Jawaharlal Sahu died

due to injuries sustained by him and the death

was homicidal in nature.  It also recorded a

finding that injuries caused to Motilal were

serious in nature and they have been caused

during  the  course  of  incident  in  which

Jawaharlal Sahu lost his life.

6. Considering  the  part  played  by  the

accused  and  their  responsibility,  the  trial

Court heavily relied upon the evidence of PW 5

Motilal, real brother and injured witness and

PW 7, Hiralal, PW 9 Janki Bai and PW 10 Bharat

Kumar. On the basis of the said evidence, it

held  that  it  was  proved  by  the  prosecution

beyond suspicion that accused persons formed an

unlawful assembly and in furtherance of common

object  to  cause  death  of  Jawaharlal,  they

inflicted injuries on him.  All the accused

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were,  therefore,  liable  to  be  convicted  for

offences  punishable  under  Sections  148,  302

read with 149, IPC.  It, however, held that it

was  not  proved  by  the  prosecution  that  the

accused  persons  attempted  to  cause  death  of

Motilal  and  were,  therefore,  not  liable  to

conviction under Section 307 read with Section

149, IPC. But they had committed an offence of

causing  grievous  hurt  to  Motilal  and,

therefore, were liable to be convicted for an

offence punishable under Section 326 read with

Section 149, IPC.  The Court in the light of

the said finding, ordered the accused persons

to undergo rigorous imprisonment for one year

for an offence punishable under Section 148; to

suffer imprisonment for life for the offence

under Section 302 read with Section 149  and to

undergo rigorous imprisonment for three years

for  an  offence  punishable  under  Section  326

read  with  Section  149,  IPC.  They  were  also

ordered to pay fine with default clause.

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7. Being  aggrieved  by  the  order  of

conviction and sentence, out of five accused,

four accused (other than Kirti Singh) preferred

criminal  appeals.  The  High  Court  again

appreciated the evidence on record and by the

judgment impugned in the present appeal held

that the appeal filed by accused No. 3-Rajesh

Viswakarma @ Thapa was required to be allowed.

Accordingly,  the  appeal  was  allowed  and  his

conviction and sentence was set aside.  With

regard  to  other  accused,  however,  the  court

held that the trial court did not commit any

error  in  recording  finding  of  guilt  against

them  and  there  was  no  substance  in  those

appeals.  Order  of  conviction  and  sentence,

therefore, was confirmed.

8. Appellant Dadan who was accused No. 2

has  challenged  his  conviction  by  filing  the

present appeal.

9. We have heard the learned counsel for

the parties.

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10. The learned counsel for the appellant

contended  that  the  order  of  conviction  and

sentence  recorded  by  the  trial  Court  and

confirmed by the High Court cannot be said to

be in accordance with law and it is liable to

be set aside.  It was also submitted that when

the High Court acquitted one of the accused not

believing  the  prosecution  story  and  granted

benefit of doubt to him, the said benefit ought

to have been extended to the appellant also.

When a part of the prosecution story was not

believable and was not believed by the High

Court,  on  the  same  set  of  facts  and

circumstances, it ought not to have convicted

the appellant herein.  The counsel also argued

that  iron  rod  said  to  have  been  used  in

commission of offence was not seized and on

that ground also, the appellant is entitled to

succeed.  It was urged that both the courts

mainly relied upon PWs 5, 7, 9 and 10.  All the

above  prosecution  witnesses  were  closely

related to the deceased being father, mother

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and brothers.  Though the incident took place

in a busy locality and other witnesses were

available, independent witnesses had not been

examined  and  the  High  Court  ought  to  have

granted benefit of doubt to the appellant.

11. The learned counsel appearing for the

State, on the other hand, supported the order

passed by the High Court.  According to him, on

the  basis  of  evidence  on  record,  both  the

courts reached a finding against the appellant

and there is no reason to interfere with the

impugned judgment.

12. Having heard the learned counsel for

the  parties  and  having  gone  through  the

judgments of both the courts and relevant part

of evidence of PW 5 Motilal, PW 7 Hiralal, PW 9

Janki Bai and PW 10 Bharat Kumar, we are of the

view that no error can be said to have been

committed either by the trial Court or by the

High Court in recording guilt of the appellant

herein and in convicting him for the offences

with which he was charged.

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13. This Court is exercising power under

Article 136 of the Constitution and is not a

regular Court of Appeal.  In exercise of the

said power, this Court does not re-appreciate,

review and re-weigh the evidence which has been

appreciated by the trial Court and by the High

Court.  If on the basis of evidence of the

aforesaid  witnesses,  the  Sessions  Court  was

satisfied that the prosecution witnesses were

trustworthy  and  relying  on  their  testimony,

conviction  was  recorded  and  the  High  Court

confirmed that part of the order, it cannot be

said that by doing so any illegality had been

committed  by  the  courts  below.   No

interference, therefore, is called for by this

Court  against  the  said  finding.  The  present

appeal, therefore, is liable to be dismissed.

14. For the foregoing reasons, the appeal

preferred  by  appellant-accused  No.  2  Dadan

deserves  to  be  dismissed  and  is  accordingly

dismissed. Conviction and sentence awarded by

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the trial Court and confirmed by the High Court

are maintained.

…………………………………………………J. (C.K. THAKKER)

…………………………………………………J. (D. K. JAIN)

New Delhi. November 04, 2008.  

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