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CASE NO.: Appeal (crl.)  520 of 2005

PETITIONER: Kallu @ Masih & Ors.                                     

RESPONDENT: State of Madhya Pradesh                          

DATE OF JUDGMENT: 04/01/2006

BENCH: S. B. Sinha & R. V. Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       This appeal is by the four convicted accused against the  judgment dated 13.12.2004 of the High Court of Madhya Pradesh  allowing in part, Criminal Appeal No.874 of 1995 filed by the State.  

2.      The case of the prosecution is that on 5.7.1993, at about 6  p.m., an unlawful assembly of  27 persons, including Kallu, Safi,  Madaniya and Bhuria (appellant nos.1 to 4 herein) and one Anwar,  came to the house of Sadruddin (PW-4), armed with swords,  Ballams, lathis, hockey sticks, farsas and dharias, shouting "kill/cut  Sadruddin". Kallu dealt a blow on the head of Sadruddin with a  sword. Madaniya also dealt a blow with a sword on his hand. Shafi  gave a blow of sword injuring his forehead, nose and jaw. Bhuria  gave a blow with a spear injuring his thigh and calf. On seeing  Sadruddin being attacked, Sabdar Bano (PW-6), Noorbano (PW-7),  Baby (PW-9) and Annobai (PW-10) rushed to the rescue of  Sadruddin. They were also beaten up by the appellants and their  associates. Sabdarbano received injuries on her head and body.  Annobai received injuries on the head. Baby and Noorbano received  injuries on their hands.  By then, a Police van came near the spot.  On seeing it, the appellants and others took to their heels.  Kanizbano (PW-3) who was sitting outside her house and who  witnessed the entire incident, along with some others, took the  injured persons to the hospital. Kanizbano also lodged an FIR (Ex.  P-28) within half an hour of the incident in Police Station, Dhar,  naming all the 27 persons. They were tried by the 3rd Additional  Sessions Judge, Dhar, for the offences under Sections 147, 148,  307/149, 324/149 and 323/149 of the Indian Penal Code. Appellant  Nos.1 and 2 and one Nazir Khan were also charged under Section  25/27 of the Arms Act.  

3.      The trial court by judgment dated 16.8.1995 acquitted all  27  accused primarily on three grounds. The first is that all the eye- witnesses belonged to Sadruddin group who had enmity with the  accused and, therefore, their statements were not reliable. The  second is that no independent eye-witness was examined even  though some spectators were stated to be present. The third is that  there were inconsistencies in the statements of the eye- witnesses.  

4.      The State filed an appeal before the Madhya Pradesh High  Court in Criminal Appeal No.874 of 1995. Leave to appeal was  granted by the High Court under section 378(3) of Cr.P.C. in regard

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to five accused (the four appellants and one Anwar) who were  specifically named in the evidence as persons who attacked and  injured PWs. 4, 6, 7, 9 and 10. Thus, the acquittal of other 22 who  were not named by any of the witnesses and to whom no specific  overt act was attributed, attained finality.

5.      The High Court by its judgment dated 13.12.2004 allowed the  appeal in part, convicted appellant Nos.1 to 4 and sentenced each  of them as follows  :

(i)     RI for two years with fine of Rs. 1,000/- in default six  months RI under Section 326 IPC (appellant no. 1) and  326/149 IPC (appellant nos. 2 to 4) for causing skull  injury to PW-4;

(ii)    RI for one year with fine of Rs.500/-, in default 3  months RI under Section 324/149 IPC for causing  injuries to PW-6 and PW-9;

(iii)   RI for six months with fine of Rs.500/- each, in default  3 months RI to each, under Section 323/149 IPC, for  causing injuries to PWs.7 and 10.  

6.      The High Court directed that all substantive sentences shall  run concurrently, and that the period of detention shall be set off  against the substantive sentences awarded to them. The appeal, in  so far as accused Anwar was, however, dismissed by giving him the  benefit of doubt. Feeling aggrieved, Respondents 1 to 4 in the  appeal before the High Court (Accused Nos.1, 11, 19 and 23) have  filed this appeal by special leave. The appellants contend that the  trial court which had observed the demeanour of the witnesses and  considered all the facts and circumstances, had rightly acquitted  them of all charges.  It is also contended that the High Court failed  to notice that (a) appellants had been falsely implicated on account  of previous enmity between the two groups; (b) there are several  inconsistencies and discrepancies in the evidence of the eye- witnesses; and (c) though several members of public were allegedly  present at the time of the incident, no independent witness was  examined. It is submitted that in the absence of any perversity or  omission to consider material evidence or apparent error in law, the  judgment of the Trial Court was not open to interference in an  appeal against acquittal. Lastly, it is contended that when only four  persons are found guilty, conviction invoking section 149 IPC is not  warranted.  

7.      The circumstances in which an appellate court will interfere  with the finding of acquittal recorded by a Trial Court are reiterated  in Bhim Singh vs. State of Haryana [2002 (10) SCC 461], thus :-  

"Before concluding, we would like to point out that this  Court in a number of cases has held that an appellate  court entertaining an appeal from the judgment of  acquittal by the trial court though entitled to  reappreciate the evidence and come to an independent  conclusion, it should not do so as a matter of routine. In  other words, if from the same set of evidence two views  are possible and if the trial court has taken one view on  the said evidence, unless the appellate court comes to  the conclusion that the view taken by the trial court is  either perverse or such that no reasonable person could  come to that conclusion or that such a finding of the trial  court is not based on any material on record, it should  not merely because another conclusion is possible  reverse the finding of the trial court."  

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8.      While deciding an appeal against acquittal, the power of the  Appellate Court is no less than the power exercised while hearing  appeals against conviction. In both types of appeals, the power  exists to review the entire evidence. However, one significant  difference is that an order of acquittal will not be interfered with, by  an appellate court, where the judgment of the trial court is based  on evidence and the view taken is reasonable and plausible. It will  not reverse the decision of the trial court merely because a different  view is possible.  The appellate court will also bear in mind that  there is a presumption of innocence in favour of the accused and  the accused is entitled to get the benefit of any doubt. Further if it  decides to interfere, it should assign reasons for differing with the  decision of the trial court.    9.      Kanizbano, PW-3, who does not belong to the family of the  injured Sadruddin and lives near the house of Sadruddin has stated  that Kallu, Safi, Madaniya, (appellant Nos.1, 2 and 3) had beaten  Sadruddin. She has also stated that they along with others,  including Bhuria, (appellant No.4), had come armed with dharias,  farsas, lathis etc., shouting "kill, kill".

10.     Sadruddin (PW-4) has named all the four appellants and 18  other accused as the persons who came armed with swords,  ballams, hockey sticks, farsas and dharias. He also described the  manner in which each of the appellants had inflicted blows on him.  He stated that Kallu hit him on his head with a sword; that  Madaniya hit him with a sword on his hand; that Shafi hit him with  a sword on his face injuring his forehead, eye and nose and  breaking his tooth; and that Bhuria gave a blow with Ballam  causing injuries to his thigh and calf.

11.     PW-6, Sabdarbano, daughter of Sadruddin, specifically stated  that appellant nos. 1 to 4 and their friends (who were present in  court) had come armed with spears, dariyas, lathis etc., and that  they were shouting "Maro, kato". She also stated that Kallu hit her  father with a sword; that Shafi had a sword and Bhuria had a spear.  She stated that when she along with PW-7 and PW-10 went to  rescue her father, they attacked her and she received sword hits on  her hand and ribs and spear hit on her shoulder and head and that  her fingers were fractured. Noorbano, PW-7, another daughter of  Sadruddin stated that appellant Nos.1 to 4 and  other accused had  come running and Kallu hit her father on the head  using a sword.  She also stated that when she, PW-6, PW-9 and PW-10 went to  rescue her father, they were all beaten up by all the accused and  that her hand was injured. Baby (whose father is a nephew of  Sadruddin) examined as PW-9, stated that appellants 1 to 4 chased  Sadruddin; that Kallu hit him with a sword on the head and Shafi  hit him on the face with a sword, and that all of them beat  Sadruddin. She also stated that she was hit by someone on right  hand. Annobai (PW-10), niece of Sadruddin stated that Kallu and  others came to the house of Sadruddin, shouting "kill/cut" and  Kallu, Bhuria and Altaf hit Sadruddin with sword/s. She also states  that she was hit by a sword on her head by someone.  

12.     It is true that only Sadruddin clearly stated as to who hit him  with what weapon and at which part of his body. The other four  eye-witnesses (PWs 6, 7, 9 and 10) have not stated who landed the  blows on them. All of them, however, identify Kallu as hitting  Sadruddin on the head. In addition, Baby (PW-9) has stated that  Shafi hit Sadruddin on the nose and Annobai (PW-10), stated that  Bhuria hit Sadruddin with a sword.

13.     The evidence of PWs. 4, 6, 7, 9 and 10 when read  with the  evidence of PW-3 makes it clear that appellants 1 to 4 along with  others, had come armed with swords, spears, hockey sticks etc.;

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that a blow was given when Sadruddin was sitting on Otla of his  house and, thereafter, he ran a few steps and there all the  appellants landed him blows with different weapons. It is also clear  that when the womenfolk, namely, PWs.6, 7, 9 and 10 ran to save  him, they were also beaten up. The evidence also clearly shows  that neither Sadruddin nor the womenfolk were armed. On the  other hand, appellants 1 to 4 were armed when they came in a  group along with others to Sadruddin’s house shouting "kill/hit".  The evidence of the eye-witnesses is also clear that but for a Police  van intervening at that time, there was the likelihood of Sadruddin  and the women who went to save him, sustaining more injuries.  Though there was a cross-complaint by the defence group,  significantly, none of the appellants was injured. The evidence also  shows that there was a longstanding enmity between Sadruddin  and Kallu. In these circumstances, the High Court held the  appellants guilty.  

14.     Though the trial court referred to the evidence of the eye- witnesses, it chose to disbelieve them merely on account of minor  inconsistencies in their evidence, relating to the exact site of  occurrence and failure to name all who landed blows and the exact  nature of injuries. The High Court, on the other hand, held that  minor inconsistencies and discrepancies regarding the exact place  or the point at which the incident took place or as to who landed  the blows is not sufficient to disbelieve the evidence of injured eye- witnesses. It is not necessary that all eye-witnesses should  specifically refer to the distinct acts of each member of an unlawful  assembly. In fact, it is difficult, if not impossible. This Court in  Masalti v. State of U.P. [1964 (8) SCR 133], observed :   "Where a crowd of assailants who are members of an  unlawful assembly proceeds to commit an offence of  murder in pursuance of the common object of the  unlawful assembly, it is often not possible for witnesses  to describe accurately the part played by each one of the  assailants. Besides, if a large crowd of persons armed  with weapons assaults the intended victims, it may not  be necessary that all of them have to take part in the  actual assault.  

15.     The trial court was of the view that absence of an  independent eye-witness in the background of previous enmity, was  a serious lacuna. But what the trial court failed to notice is that  previous enmity was not denied and the prosecution case is that  Kallu and other accused came in a group to Sadruddin’s house  specifically to beat him up. Therefore,  the mere fact that there was  enmity between Sadruddin and Kallu cannot be a ground to reject  the clear evidence of the eye-witnesses -- PWs 4, 6, 7, 9 and 10  who were the injured, and PW-3. The High Court has, therefore,  rightly held that the appellants and other accused  were the  assaulting party; that they had come together with weapons and  had acted jointly and had run away after injuring Sadruddin and  four female members of his family.

16.     We find that the High Court has not interfered in the matter  in a routine manner merely because a different view is possible.   The High Court has interfered rightly, in our view, because the trial  court unreasonably disbelieved the evidence of six eye-witnesses  on insufficient grounds. The High Court has also assigned reasons  for interfering with acquittal. We find no error in the decision of the  High Court.

17.     The contention that when only four persons are found guilty,  there cannot be conviction under section 149 IPC, has no merit.  Section 149 provides that if an offence is committed by any

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member of an unlawful assembly in prosecution of the common  object of that assembly, or such as the members of that assembly  knew to be likely to be committed in prosecution of that object,  every person who, at the time of the committing of that offence, is  a member of the same assembly, is guilty of that offence. Section  141 requires a  minimum of five persons for being designated as an  ’unlawful assembly’.  

18.     The question has been specifically considered by this Court in      Mohan Singh & Anr. vs. State of Punjab [AIR 1963 SC 174] and  Ram Bilas Singh & Ors. Vs. The State of Bihar [1964 (1) SCR  775], and in Dharam Pal and Others vs. The State of U.P.  [1975 (2) SCC 596]. It is sufficient to refer to the principle as  stated in Dharam Pal (supra), for our purpose :  "It is true that the acquittal of an accused person does  raise, in the eye of law, a presumption that he is  innocent even if he was actually guilty. But, it is only the  acquitted accused person and not the convicted accused  persons who can, as a rule, get the benefit of such a  presumption. The effect of findings on questions of fact  depends upon the nature of those findings. If, for  example, only five known persons are alleged to have  participated in an attack but the courts find that two of  them were falsely implicated, it would be quite natural  and logical to infer or presume that the participants were  less than five in number. On the other hand, if the  court holds that the assailants were actually five in  number, but there could be a doubt as to the  identity of two of the alleged assailants, and,  therefore, acquits two of them, the others will not  get the benefit of doubt about the identity of the  two accused so long as there is a firm finding,  based on good evidence and sound reasoning, that  the participants were five or more in number. Such  a case is one of doubt only as to identity of some  participants and not as to the total number of  participants. It may be that a definite conclusion that the  number of participants was at least five may be very  difficult to reach where the allegation of participation is  confined to five known persons and there is doubt about  the identity of even one. But, where a large number  of known persons (such as eighteen, as is the case  before us), are alleged to have participated and  the Court acts on the principle that it is better to  err on the side of safety, so that no injustice is  done to a possibly wrongly implicated accused,  and benefit of doubt is reaped by a large number,  with the result that their acquittal, out of abundant  caution, reduces the number of those about whose  participation there can be no doubt to less than  five, it may not be really difficult at all, as it is not  in the case before us, to reach the conclusion that,  having regard to undeniable facts, the number of  participants could not possibly be less than five. "

[Emphasis supplied]

19.     The accused before the trial court were 27 in number. PW- 4 specifically named 22 persons and further named the four out  of them who landed him the blows. PW-3 names 12 persons  who came as a group. Other eye-witnesses also clearly stated  that the appellants with other accused who were present in  court had come to attack Sadruddin. As noticed above, the trial  court chose to acquit all the 27 accused. In the appeal filed by

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the State, leave was granted by the High Court only in regard to  five of the accused, as they were specifically named as the  persons wielding weapons and causing injuries to Sadruddin and  others and as the names of others were mentioned only as  being members of the assembly without any specific act being  attributed to them. The High Court gave benefit of doubt to one  of the five (Anwar) though his presence as a member of the  group was accepted. This resulted in conviction of only four.  This does not mean that there is no finding that there was an  unlawful assembly. When the evidence clearly shows that more  than five persons armed with swords, spears etc. had come to  the house of Sadruddin with the common object of causing  injury, and injured him. The mere fact that several accused  were acquitted and only four are convicted, does not enable the  four who are found guilty to contend that Section 149 is  inapplicable.  We may also in this context refer to the following  observations in Masalti vs. State of UP [1964 (8) SCR 133],  reiterated in Triloki Nath vs. State of UP reported in JT 2005 (9)  SC 370 :-  

"In fact, section 149 makes it clear that if an offence is  committed by any member of an unlawful assembly in  prosecution of the common object of that assembly, or  such as the members of that assembly knew to be likely  to be committed in prosecution of that object, every   person who, at the time of the committing of that  offence, is a member of the same assembly, is guilty of  that offence; and that emphatically brings out the  principle that the punishment prescribed by section 149  is in a sense vicarious and does not always proceed on  the basis that the offence has been actually committed  by every member of the unlawful assembly."  

20.     We, therefore, find no merit in this appeal and the same is,  accordingly, dismissed.