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CASE NO.: Appeal (crl.)  30 of 2004

PETITIONER: Mangu Khan & Ors.                                                

RESPONDENT: State of Rajasthan                                                       

DATE OF JUDGMENT: 24/02/2005

BENCH: K.G. Balakrishnan & B. N. Srikrishna

JUDGMENT: J U D G M E N T with Criminal Appeal No. 31 of 2004 SRIKRISHNA, J.

       The appellants were convicted under Section 148, Section 302/149  and Section 323/149 of the Indian Penal Code by the Trial Court and  sentences were awarded to them consequently. Having failed in their appeals  before the High Court, the appellants are before this Court by way of special  leave. Facts:

       Sahab Khan, PW 3, made a written report (Ex. P 6) on 11.7.1997 at  9:00 a.m. in Police Station Sadar, Alwar. According to him, between 7:00  and 7:30 a.m. on that day, he and his father, Dhandhad, and his brother, Isab,  went to their field. Mangu Khan, Appellant No. 1, Sirdar Khan, Appellant  No. 2, Subedar Khan, Appellant No. 3, (Deen Mohd. and Jamil Khan, since  acquitted), who had enmity against them on account of construction of a  bund, were sitting on the bund duly armed with lathi, farsi, tanchia and  kattas. As soon as the informant, his father and brother approached, all the  aforesaid persons attacked them with farsi, lathi and tanchia. Consequently,   Dhandhad and his brother, Isab, fell down and died on the spot itself. He  also sustained some injuries as a result of the assault.     The Police Station,  Sadar, Alwar registered a case under Sections 147, 148, 149, 307, 447 and  302 IPC and commenced investigation. As a result of the investigation, five  of the accused were tried.  They comprised Mangu Khan, Appellant No. 1,  Sirdar Khan, Appellant No. 2, Subedar Khan, Appellant No. 3, Deen Mohd.  and Jamil Khan. Learned Additional District and Session Judge, Alwar  convicted the said accused under Sections 148, 302/149 and 323/149 of  I.P.C. and sentenced them to suffer two years rigorous imprisonment and a  fine of rupees one thousand in default for the offence under Section 148,  rigorous imprisonment for life and a fine of rupees five thousand with  default sentence of two years rigorous imprisonment for the offence under  Section 302/149 IPC, and to suffer one year rigorous imprisonment for the  offence under Section 323/149 IPC.

       All the five accused appealed to the High Court. On appeal the High  Court was of the view that the charges under Sections 148, 302/149 and  323/149 IPC against the appellants, Deen Mohd. and Jamil Khan had not  been established beyond reasonable doubt and acquitted them.  The present  Appellants Nos. 1 to 3 were, however, convicted by the High Court under  Section 302 read with Section 34 IPC and sentenced to suffer imprisonment  for life and fine of rupees five thousand with a default sentence of two years  rigorous imprisonment and one year’s rigorous imprisonment for the  conviction under Section 323/34 IPC. The sentences were directed to run  concurrently.

       The learned counsel for the appellant  invited us to go into the minute  details of the evidence to persuade us that the evidence before the Court

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could not have been accepted at all for convicting the appellants.  He also  tried to highlight some discrepancies and inconsistencies in the evidence.   Two courts having concurrently accepted the evidence to sustain the charge,  we decline to go into the meticulous analysis of the evidence at the invitation  of the learned counsel for the appellants.  We may usefully recapitulate in  this connection the dicta of this Court in Harshadsingh Pahelvansingh  Thakore  v.  The State of Gujarat .

"Judicial summitry, when the subject of dispute is  reappraisal of evidence even on the sophisticated ground  of misappreciation, has to submit itself to certain self- restraining rules of processual symmetry.  The trial court  directly sees the witnesses testify and tests their veracity  in the raw.  The appellate Court, enjoying coextensive  power of examination, exercises it circumspectly, looks  for errors of probative appraisal, oversight or omission in  the record and makes a better judgment on the totality of  materials in the light of established rules of criminal  jurisprudence.  As the case ascends higher, forensic  review is more rarefied. Such being the restrictive  approach, the Supreme Court cannot be persuaded,  without stultifying the system of our judicature, to go  over the ground of reading the evidence and interpreting  it a new so as to uphold that which appeals to it among  possible alternative views. If there is perversity,  miscarriage of justice, shocking misreading or gross  misapplication of the rules, procedural and substantive,  we interfere without hesitation.  Of course other  exceptional circumstances also may invoke our review  jurisdiction.  These prefatory observations have become  necessary since, usually, appellants, hopefully slurring  over these jurisdictional limitations, argue the whole way  before us as if the entire evidence is at large for de novo  examination.  Such a procedure has been attempted in the  present case and, for reasons just mentioned, we are  disinclined to rip open the depositions to rediscover  whether the evidence is reliable or not."  

In Paragraph 31 of the judgment under appeal the High Court has  summarized its findings as under:

"31. Bearing the principles propounded in the  aforequotted judgments, in mind we now propose to  consider the facts situation emerged in the instant case  that may be summarized as under:-

(i)     Deceased Isab received 7 incised wound in the  head and other parts of his body and 3 abrasions over  right hand and right thigh.

(ii)    Deceased Dhandhad received 9 incised wounds on  the head and other parts of the body and two bruises on  the skull.

(iii)   Appellant Mangu received four abrasions on both  the hands and nose.  Whereas appellant Sirdar sustained  1 lacerated wound on right leg, multiple abraded bruises  on right shoulder and two abrasions on left knee.

(iv)    The informant Sahab Khan sustained 1 lacerated  wound on head, bruises on left shoulder and right wrist  and abrasion on left leg.

(v)     Dispute regarding dividing wall of the fields was  going on for the last 10-12 days prior to the date of

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incident between the appellant Mangu and deceased.

(vi)    According to site plan (Dhani) place of residence  of the deceased situated towards the field of Mangu about  300 meters away from the place of incident.

(vii)   Dead bodies of Isab and Dhandhad were found  lying in the field of Mangu.

(viii)   The field of informant Sahab Khan situated just  adjacent to the field of Mangu towards its south.

(ix)     The statement of Zakir Hussain (Pw.1), Rudar  (Pw.2), Sharif Khan (Pw.4) and Riyasat Ali (Pw. 5) were  recorded by the police on July 14, 1997 i.e. after about 3  days of the incident.  As according to Narpat Singh  Rathore, I.O. (Pw. 15) they were not available to him.

(x)     To the cross examination Narpat Singh Rathore,  I.O. admitted that farsi recovered at the instance of  appellant Jamil was sealed and marked as Article 1-A. A  slip was pasted on the article which bore his signatures  and date July 11, 1997, but it did not bear the signatures  of Jamil.  He further stated that Jamil was arrested on  July 12, 1997 and farsi got recovered after his arrest.

(xi)    There are omissions, embellishments and  contradictions in the statement of Sahab Khan (Pw.3).

(xii)   The injuries sustained by appellants Mangu and  Sirdar Khan had not been explained by prosecution.

(xiii)  Despite the Police Station fall on the way while  taking the dead bodies.  The informant did not give first  information to the police."

These findings are broadly correct and must be taken as the basis for  any further critical appraisal of the judgment under appeal.

Contentions:

       The first contention urged by the learned counsel is that Mangu Khan  and Sirdar Khan had also suffered injuries, which had not been explained by  the prosecution. Consequently, it is argued that  the whole of the prosecution  case becomes suspect and induces a reasonable doubt, the benefit of which  must legitimately go to the accused.  

The injuries sustained by the deceased Isab and Dhandhad were  extremely serious ones on vital parts of the body, which resulted in their  death. The informant Sahab Khan had suffered a lacerated wound on the  right side of his head and three abrasions on his right wrist and left leg  respectively.  As far as the injuries sustained by the accused persons are  concerned, the injury report shows small abrasions and laceration  on non- vital parts of the body.  Apart therefrom, we are unable to accept the  contention that in every case there is such an inexorable burden upon the  prosecution to explain the injuries on the body of the accused failing which  the prosecution case must be thrown out lock, stock and barrel.  In Hare  Krishna Singh and Ors.  v.  State of Bihar  this Court, after careful  analysis of several judgments cited before it as authorities for the said  proposition, observed as under: (vide paragraph 18) "The burden of proving the guilt of the accused is  undoubtedly on the prosecution. The accused is not  bound to say anything in defence. The prosecution has to  prove the guilt of the accused beyond all reasonable  doubts. If the witnesses examined on behalf of the

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prosecution are believed by the Court in proof of the guilt  of the accused beyond any reasonable doubt, the question  of the obligation of the prosecution to explain the injuries  sustained by the accused will not arise.  When the  prosecution comes with a definite case that the offence  has been committed by the accused and proves its case  beyond any reasonable doubt, it becomes hardly  necessary for the prosecution to again explain how and in  what circumstances injuries have been inflicted on the  person of the accused."

Again,  thus in paragraph 20:

"All the decisions of this Court which have been referred  to and discussed above, show that when the Court has  believed the prosecution witnesses as convincing and  trustworthy, the Court overruled the contention of the  accused that as the prosecution had failed to explain the  injuries sustained by the accused in the same occurrence,  the prosecution case should be disbelieved and the  accused should be acquitted.  Thus, it is not the law or  invariable rule that whenever the accused sustains an  injury in the same occurrence, the prosecution has to  explain the injuries failure of which will mean that the  prosecution has suppressed the truth and also the origin  and genesis of the occurrence."

In the face of this authoritative pronouncement, we are unable to accept the  contention that merely because the appellants, Mangu Khan and Sirdar Khan  had a few abrasions and minor lacerated wounds on their bodies, the  evidence which is otherwise acceptable becomes suspect or that the  prosecution must fail on that score.  

       The learned counsel next contended that the High Court had grossly  erred in not appreciating that the ocular evidence on record was wholly  inconsistent with and inexplicable in the light of the medical evidence. In  particular, learned counsel drew our attention to the post mortem reports in  both the cases.  In the case of deceased Isab, the post mortem report dated  11.7.1997 indicated that the body was examined at 12.00 Noon on  11.7.97  and certified that death had occurred "within 24 hours prior to PM  Examination". The cause of death appeared to be serious injuries caused on  the head and skull resulting in wounds going deep into meninges, brain  matter coming out through bones and scalp. In the case of the deceased  Dandhad, the post mortem report dated 11.7.1997 certified that his body was  examined at 11.00 AM and death had occurred "within 24 hours prior to PM  Examination". In both the cases, the post mortem report indicated "rigor  mortis present all over the body". On the basis of these two documents, the  learned counsel tried to build up a case that the prosecution story was  unbelievable, that the offence had been committed during previous night in  the open field by unknown persons and the case had been falsely foisted on  the accused on account of previous enmity over the construction of a bund.   We see no basis whatsoever for this argument.  In the first place, neither post  mortem report suggests that the death had taken place exactly 24 hours  before the post mortem was conducted. All that the post mortem reports say  is that the death had occurred "within 24 hours prior to PM Examination".  Undoubtedly, the post mortem examination was carried out at 11.00  A.M./12 Noon on 11.7.1997.  In other words, the post mortem reports  suggest that the death might have occurred any time after 11.00/12.00 Noon  of 10.7.1997.The contention urged by reference to text books on Forensic  Medicine to show the time within which rigor mortis develops all over the  body also has no factual basis. It depends on various factors such as  constitution of the deceased, season of the year, the temperature in the  region and the conditions under which the body has been preserved. The  record indicates that the body was taken from the mortuary.  We notice that  there is no cross examination, whatsoever, of the doctor so as to elicit any of

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the material facts on which a possible argument could have been based. If  these are the circumstances, then the presence of rigor mortis all over the  body by itself cannot warrant the argument of the learned counsel that the  death must have occurred during the previous night. Acceptable ocular  evidence cannot be dislodged on such hypothetical bases for which no  proper grounds were laid.  

       The learned counsel then argued that the evidence on record showed  that the bund had been constructed in the field of Mangu Khan about 10-15  days prior to the date of the incident. He urged that even if it was assumed  that the bund had been constructed by trespassing upon the land of the  deceased, since the accused were in settled possession and the complainant  party were attempting to forcibly reoccupy the bund, right of private defence  was available to the accused both in respect of their property and their  person.  The contention is wholly unfounded and misplaced. No such plea  seems to have been raised during the trial, nor suggested during the cross  examination of prosecution witnesses. Secondly, there is no evidence that  the complainant party was approaching the accused party with an intention  of causing a bodily harm, for they were wholly unarmed. It is the accused  party which appeared to be armed with weapons like  lathi, farsi, tanchia and  katta. Further, the evidence on record does not suggest that any member of  the complainant party had done any act which could have   induced a  reasonable apprehension in the minds of the accused of danger to their  person or to their property. We are also not in a position to accept the  contention of the learned counsel that the injuries sustained by the accused  furnished such evidence.

       The learned counsel then contended that, apart from the other charges  of the five accused, the accused who had been charged under Section 302  simplicitor had been acquitted of the offence under Section 302, but  convicted of the offence under Section 302 r/w Section 34 of IPC.   According to the learned counsel, since the Sessions Court had acquitted the  appellants of the charge under Section 302, it was not open to the High  Court to convict them under Section 302 r/w Section 34 of IPC.  This, in the  submission of the learned counsel caused prejudice to the appellants, is a  grave misdirection in law and has resulted in miscarriage of justice.   

The High Court, after reappreciating the evidence on record, took the  view that the prosecution had failed to establish charges under Sections 148,  302/149 and 323/149 IPC against the accused Deen Mohd. and Jamil Khan  beyond reasonable doubt. This was the reason why they were acquitted.  With regard to the present Appellants Nos. 1 to 3, the High Court was of the  view that  formation of the common intention to commit the offence on the  spot was established against them. Relying on the judgment of this Court in  Malhu Yadav and Ors.  v. State of Bihar  the High Court held that  although a charge under Section 34 IPC had not been framed against the  present appellants, since the evidence showed formation of a common  intention to commit the offence on the spot, their conviction under Section  302 IPC with the aid of Section 34 IPC would not cause any prejudice to  them.

       The contention urged by the learned counsel is unsound in law. There  is no doubt that Isab and Dhandhad were done to death by serious injuries to  the vital parts of their bodies, namely, skull. That the three appellants had a  common intention to cause such injuries is evident from their waiting with  arms, early in the morning, in the field. The evidence on record justifies the  conclusion of the High Court. The manner in which the complainant party  was attacked and two of them were done to death is born out by the evidence  and the High Court’s findings on this issue are justified. May be, from the  evidence, it may not be possible to pin point the person who dealt the fatal  blow to each of the deceased. That is perhaps the reason why the appellants  were all acquitted of the charge under Section 302 simplicitor.  But when the  evidence indicates that the three accused had repeatedly given blows with  lathi, farsi and tanchia, and it is not possible to identify and ascribe a  particular injury to a particular accused, there would be nothing illegal in

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convicting the accused of the charge of Section 302 with the aid of Section  34 IPC. As to the object of Section 34, this Court in B.M. Dana and Anr.   v.  State of Bombay  observed: "We accept the position that we do not know which  particular person or persons gave the fatal blows; but  once it is found that a criminal act was done in  furtherance of the common intention of all, each of such  persons is liable for the criminal act as if it were done by  him alone.  The section is intended to meet a case in  which it may be difficult to distinguish between the acts  of individual members of a party who act in furtherance  of the common intention of all or to prove exactly what  part was taken by each of them. The principle which the  section embodies is participation in some action with the  common intention of committing a crime; once such  participation is established, S. 34 is at once attracted."

In fact, this precisely appears to be the role of Section 34, as this  Court had indicated in Harshadsingh Pahelvansingh Thakore (supra).  In  the felicitous words of Krishna Iyer, J. the legal proposition is : "We make the legal position clear that when a murderous  assault by many hands with many knives has ended  fatally, it is legally impermissible to dissect the serious  ones from the others and seek to salvage those whose  stabs have not proved fatal. When people play with  knives and lives, the circumstance that one man’s stab  falls on a less or more vulnerable part of the person of the  victim is of no consequence to fix the guilt for murder.   Conjoint complicity is the inevitable inference when a  gory group animated by lethal intent accomplish their  purpose cumulatively.  Section 34 IPC fixing  constructive liability conclusively silences such a refined  plea of extrication. (See Amir Hussain  v.  State of U.P. ;   Maina Singh  v.  State of Rajasthan .) Lord Sumner’s  classic legal shorthand for constructive criminal liability,  expressed in the Miltonic verse ’They also serve who  only stand and wait’ a fortiori embraces cases of common  intent instantly formed, triggering a plurality of persons  into an adventure in criminality, some hitting, some  missing, some splitting hostile heads, some spilling drops  of blood.  Guilt goes with community of intent coupled  with participatory presence or operation.  No finer juristic  niceties can be pressed into service to nullify or jettison  the plain punitive purpose of the Penal Code."

In a situation when all the accused but one have been acquitted of the  charge, it is possible to convict even the solitary accused under Section 302  with the aid of Section 34 (See also in this connection  Sukh Ram  v.  State  of U.P.  and  Pipal Singh  v.  State of Punjab )

       Learned counsel finally made a desperate appeal that if they were  guilty, the appellants could be convicted only under Section 304 Part I IPC  and not under Section 302.  We are afraid, this plea is also not open. The  situation was not one of a free fight. On the other hand, the evidence on  record indicates that the intention was to ambush, attack and kill the persons,  who were coming to protest about the unlawful construction of the bund.     In our view, the situation is covered by Section 302 and not by Section 304,  as urged.

       We find no substance in these appeals, which are hereby dismissed.

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