REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 120 OF 2008

Md. Ankoos & Ors.                 …Appellants

Versus   The Public Prosecutor, High Court of A.P.            …Respondent

JUDGEMENT

R.M. Lodha, J.

Five persons were done to death in the intervening  

night of October 2 and 3, 2000 in village Thimmapur, District  

Warangal.  The  villagers  suspected  that  deceased  were  

practicing sorcery and due to that few deaths took place in the  

village. 77 persons were sent up for trial for the offences under  

Sections 148, 448, 307, 302, 120-B read with 109, IPC. The  

Court  of  2nd Additional  Sessions Judge at  Warangal  vide his

judgment  dated  June  9,  2009  acquitted  all  of  them.  In  the  

appeal preferred by the State of Andhra Pradesh, High Court  

confirmed the judgment of acquittal of 59 accused but convicted  

nineteen persons for the offence punishable under Section 302  

read with  Section  149,  IPC and sentenced them to undergo  

imprisonment  for  life  vide  judgment  dated  October  4,  2007.  

Their acquittal for other offences was, however, confirmed. All  

these  nineteen  convicted  persons  preferred   special  leave  

petition in which leave has been granted and  appeal has come  

up for hearing before us.  

2. Few cattle died in the village Thimmapur in 1997.  

The death of  these cattle  were due to sudden ill-health.  The  

villagers of Thimmapur suspected that their cattle died due to  

sorcery practiced by some of the villagers. T. Lingaiah (A-19),  

G. Sambaiah (A-60), B. Mallaiah (A-61), M. Ramreddy (A-62)  

and K. Veeraswamy (A-69) thought of identifying the culprits.  

They called M. Yakaiah (A-16) – a Mantrik from Lingapuram  

village; collected some donations from the villagers and paid to  

him to identify the persons responsible for the death of cattle.  

A-16  revealed  the  names  of  Chatta  Boina  Ilu  Mallamma  @  

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Ilamma (D-1),  Velpula  Narsamma (D-2),  Konkanoori  Yellaiah  

(D-3),  Konkanoori  Rajamma (D-4),  Veera  Uppakantha  (D-5),  

Panduga  Renuka  (PW-6)  and  Pochala  Yeshoda  (PW-7)  

responsible  for  the  tragedy.  About  fifteen  days  prior  to  the  

incident, one Boyana Bikshapathi, son of B. Venkataiah (A-17)  

and B. Rayalaxmi  (A-72) and brother of B. Sampath (A-71) and  

B. Ravi (A-73) died at MGM Hospital at Warangal.  Ten days  

prior   to  the  incident,  one  Pandunga  Nirmala  relative  of  P.  

Yadagiri  (A-9),    P.  Hymavathi  (A-10),  P.  Ramulu (A-26),  P.  

Buchaiah (A-59) and P. Ellaswamy (A-76) died in the village  

due  to  ill-health.  The  case  of  the  prosecution  is  that  the  

accused hatched a plan on August 2, 2000 to kill D-1, D-2, D-3,  

D-4,  D-5,  PW-6  and  PW-7  as  they  suspected  that  these  

persons were responsible for these deaths because of sorcery  

played by them. According to the prosecution 78 persons viz.,  

Md. Ankoos (A-1), D. Yella Swamy (A-2), Ch. Laxmaiah (A-3),  

S.  Babu  (A-4),  Ch.  Shankar  (A-5),  I.  Buchaiah  (A-6),  K.  

Sammaiah  (A-7),  K.  Bhasker  (A-8),  P.  Yadagiri  (A-9),  P.  

Hymavathi (A-10),  I.  Mogili  (A-11), K. Raju (A-12),  K. Suresh  

(A-13),  I.  Ellaiah (A-14),  N. Sudhakaar (A-15),  B.  Venkataiah  

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(A-17),  A.  Chandraiah  (A-18),  T.  Lingaiah  (A-19),  M.  Venu  

(A-20),   Neerati  Sudhaker  (A-21),  Ch.  Veeralaxmi  (A-22),  K.  

Laxmi (A-23),  V. Vijaya (A-24), A. Lalitha (A-25),  P. Ramulu  

(A-26),  P.  Narasaiah  (A-27),  V.  Mogili  (A-28),  Ch.  

Satyanarayana (A-29),  M. Laxmi (A-30), I.  Renuka (A-31),  E.  

Aruna  (A-32),  S.  Padma  (A-33),  Ch.  Yakamma  (A-34),  K.  

Mariya (A-35),  K.  Narsamma (A-36),  K.  Yellamma (A-37),  K.  

Komuramma (A-38), S. Radha (A-39), K. Kanakalaxmi (A-40),  

N. Bhadramma (A-41), K. Kamalamma  (A-42), N. Narsamma  

(A-43),  M.  Ahalya  (A-44),  D.  Yaka  Laxmi  (A-45),  S.  Laxmi  

(A-46),  N.  Bhadramma  (A-47),   N.  Suguna  (A-48),  V.  

Narsamma (A-49), I. Yakaiah (A-50),  K. Narsaiah (A-51),  S.  

Ramchandru (A-52),  P. Roja (A-53), B. Bichamma (A-54), D.  

Saramma (A-55),  D. Laxmi (A-56), Ch. Sammakka (A-57), A.  

Soundarya (A-58), P. Buchaiah (A-59), M. Ramreddy (A-62), V.  

Iylaiah (A-63),  I.  Babu (A-64),   T.  Sadaiah (A-65),  T.  Vishnu  

(A-66),  B. Sudhakar (A-67), N. Ilumallu (A-68), K. Veeraswamy  

(A-69),  D.  Sarangapani  (A-70),B.  Sampath  (A-71),  B.  

Rayalaxmi (A-72), B. Ravi (A-73), Ch. Sammaiah   (A-74), D.  

Yakaiah (A-75), P. Ellaswamy (A-76), K. Veeraiah (A-77) and T.  

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Veeraswamy  (A-78)  formed  an  unlawful  assembly;  some  of  

them were armed with sticks while  the women accused held  

chilli powder and gathered in front of the house of A-7.   A-1,  

A-5 and A-6 entered the house of D-2 and dragged her out.  

Similarly, A-11, A-13, A-14  dragged D-5,  A-9, A-10, A-26 and  

A-29 dragged D-3 and D-4; A-2, A-3, A-4 and A-17 dragged  

D-1; A-28, A-31 and A-33 dragged PW-6 and A-18, A-20 and  

A-24 dragged PW-7 out of their respective houses forcibly. A-1  

to A-15, A-17 to A-59 and A-63 to A-78 gave beating to D-1 to  

D-5, PW-6 and PW-7 with sticks and  women accused sprinkled  

chilli powder sprinkled on their faces. PW-6 and PW-7 ran away  

from the scene with injuries. The prosecution has further come  

out with the case that A-19, A-65 and A-66 brought a drum of  

kerosene  and  A-1  to  A-15,  A-17  to  A-59  and  A-62  to  A-78  

poured kerosene on D-1, D-2, D-3, D-4 and D-5 and set them  

on fire, as a result of which D-1 D-2, D-3 and D-4 died on the  

spot while D-5 died at MGM Hospital, Warangal.

3. S.  Venkateshwara  Rao  (PW-1)  –  Village  

Administrative  Officer  –  on  August  3,  2000  lodged  a  report  

about the incident at police station Sangam at about 6.00 a.m.  

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Ch.  Rajeshwar  Rao  (PW-20)  –  Inspector  of  Police  –  upon  

receipt  of  information  immediately  rushed  to  the  scene  of  

occurrence;  conducted  Inquest  Panchnama  over  the  dead  

bodies and sent the dead bodies to MGM Hospital, Warangal  

for post-mortem.  PW-20 seized the kerosene drum (MO-1) at  

the scene of offence and took steps towards investigation and  

after collecting the evidence and on completion of investigation,  

submitted charge-sheet against A-1 to A-78 before the Court of  

III  Additional  Judicial  First  Class  Magistrate,  Warangal  who  

committed  them  to  court  of  sessions  for  trial.  A-21  being  

juvenile was separated from the trial.       

4. Accused  (77  in  number)  were  charged  for  the  

following offences :

“CHARGE NO. 1 : That you A. 1 to A. 15, A. 17 to A. 59 and A. 62  

to A.78 on 2/3.8.2000 at about 0100 hr. at Thimmapur (v)  were  members  of  an  unlawful  assembly  and  did,  in  prosecution of the common object of such assembly, namely  to  commit  the  murder  of  D.1)  S.  Iyla  Mallamma,  D.2)  V.  Narsamma, D.3) K. Nuri Yellaiah D.4) K. Rajamma, D.5) E.  Uppakantha,  commit  the  offence  of  rioting  by  pouring  kerosene  and  that  you  thereby  committed  an  offence  punishable u/S. 148 IPC and within the cognizance of this  Court.  

CHARGE NO. 2 : That you  on the above mentioned date,  time  

and  place  committed  house-trespass  by  entering  into  the  houses of D. 1 to D.5 with intent to kill  them and that you  

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thereby committed an offence punishable u/S. 448 IPC and  within the cognizance of this Court.

CHARGE NO. 3 : That you  on the above mentioned date,  time  

and place did an act i.e. murder of D.1 to D. 5 with such  intention and under such circumstances that  if  by that  act  you had caused the death of D. 1 to D. 5 you would have  been guilty  of  murder  and that  you  thereby committed an  offence punishable u/S. 307 IPC and within the cognizance  of this Court.

CHARGE NO. 4 : That  you  on  the  above  mentioned  date,  time  and  

place did commit murder by intentionally causing the death  of  D.1 to D.5 and that  you  thereby committed an offence  punishable u/S. 302 IPC and within the cognizance of this  Court.

CHARGE NO. 5 : That  you  A.16,  A.60  and  A.61  on  the  above  

mentioned  date,  time  and  place  were  members  of  an  unlawful assembly to do an illegal act i.e. murder of D.1 to  D.5 and that  the same act  was done in pursuance of  the  agreement  which  was  committed  in  consequences  of  abatement and that you have thereby committed an offence  punishable  u/S.  120-B  r/w  109  IPC  and  within  the  cognizance of this Court.”   

5. The prosecution examined twenty-two witnesses of  

which PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-

9 were tendered as eye-witnesses.

6. The postmortem of the dead bodies was conducted  

on  August  4,  2000.  The  postmortem  of  dead  body  of  D-1  

records that she died of burn injuries. The injuries sustained by  

her are recorded in the postmortem report thus :

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“1. A contusion of 8 x 6 cm present over the vertex area of  scalp.

2.     A contusion of 6 x 4 cm present on outer aspect of  left arm.

3.     A contusion of 7 x 4 cm present on outer aspect of  right shoulder.

4.     A contusion over  area of 16 x 10 cm present on  back trunk.

5.     A contusion over an area of 9 x 5 cm present on  right buttock.

6.     Antemortem, fresh deep burn injuries are present  over scalp, face, neck, both sides of trunk, both upper  limbs,  perenium and both lower  limbs up to  knees,  sparing both legs. The burns more deep over anterior  abdominal wall and made a rent in it  through which  intestines are coming out. About 90% of body surface  area is involved.”  

7. D-2  also  died  of  burn  injuries  and  the  following  

injuries are recorded in the postmortem report concerning D-2 :

  “ 1.      A contusion of 6 x 4 cm present on occipital area of scalp. 2.     A contusion of 3 x 2 cm present on outer aspect of left  

elbow. 3.     A contusion of 6 x 4 cm present on outer aspect of right  

shoulder. 4.       A contusion of 8 x 6 cm present on back of trunk. 5.       A contusion of 4 x 3 cm present on right buttock. 6.    A contusion of 8 x 4 cm present on outer aspect of left  

buttock. 7.     Antemortem, deep burns present on scalp, face, neck, both  

sides  of  trunk,  both  upper  limbs,  both  lower  limbs  and  perenium, with bone deep on left side body over arm and  buttock and cavity deep at abdomen. About 100% of body  surface area is involved.”

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8. As regards D-3, the postmortem report records the  

following injuries :  

“ 1.    A contusion of 6 x 4 cm present over vertex area of scalp. 2. A contusion of 6 x 4 cm present over outer aspect of right arm. 3. A contusion of 5 x 4 cm present over outer aspect of left arm. 4. A contusion of 18 x 12 cm present over back of trunk. 5. A contusion of 6 x 4 cm present on outer aspect of right wrist. 6. A contusion of 3 x 2 cm present over right elbow, outer aspect. 7. A contusion of 4 x 3 cm present over outer aspect of left elbow. 8. A contusion of 4 x 3 cm present over outer aspect of left wrist. 9. A contusion of 7 x 5 cm present on back of right buttock. 10. A contusion of 8 x 6 cm present on back of left buttock. 11. A contusion of 10 x 6 cm present on front of right thigh. 12. A contusion of 8 x 4 cm present on front of left thigh. 13. A contusion of 6 x 4 cm present on outer aspect of right leg. 14. A contusion of 5 x 3 cm present on outer aspect of left leg. 15. A contusion of 6 x 4 cm present on left sole. 16. Antemortem,  mixed  burn  injuries  are  present  on  scalp,  face,  

neck, both sides of trunk, both upper limbs, both lower limbs and  perenium,  except  over  both  feet.  About  95% of  body surface  area is involved.”

9. D-4  also  died  of  burn  injuries.  The  postmortem  

report records the following injuries on her.  

“1. A contusion over an area of 20 x 16 cm present on entire  area of scalp.

2 Antemortem,  deep  burns  present  on  scalp,  face,  neck,  both sides of trunk, both upper limbs, both lower limbs and  perenium.  The  burns  are  cavity  deep  at  abdomen  and  intestines came out through the deficit  and part of them  are burnt. They are bone deep and muscles are charred  

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on both upper limbs and lower limbs. About 100% of body  surface area is involved.”

10. The  cause  of  death  of  D-5,  as  reflected  in  

postmortem report, is again burn injuries. The following injuries  

are recorded in the postmortem report concerning D-5 :

   “1.       A contusion of 3 x 2 cm present on scalp on vertex area. 2 A contusion over an area of 20 x 8 cm, present on right  

shoulder outer aspect. 3 A contusion of 10 x 8 cm, present on outer aspect of left  

arm. 4 A contusion of 8 x 6 cm present on outer aspect of left  

wrist area. 5 A contusion over an area of 16 x 10 cm present on right  

thigh, outer aspect. 6 A contusion over an area of 10 x 8 cm present on outer  

aspect of left buttock. 7 Antemortem  burns  of  mixed  degree,  present  on  face,  

scalp, neck, both sides of trunk, both upper limbs, both  lower limbs and perenium, with loss of entire superficial  skin. About 100% of body surface area is involved.”

11. The death of  D-1 to D-5 is neither  accidental  nor  

suicidal; rather their death is established to be homicidal. The  

trial court held that prosecution failed to establish the guilt of the  

accused  for  the  offences  for  which  they  were  charged  and,  

accordingly, acquitted them by giving benefit of doubt. The High  

Court, however, upturned the judgment of acquittal insofar as  

present appellants are concerned and convicted them for the  

offence punishable under Section 302 read with Section 149,  

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IPC  and  sentenced  them  to  suffer  imprisonment  for  life,  

although their acquittal under Sections 148 and 448 IPC was  

not interfered with.

12. This Court has, time and again, dealt with the scope  

of exercise of power by the Appellate Court against judgment of  

acquittal  under  Sections  378  and  386,  Cr.P.C.  It  has  been  

repeatedly  held  that  if  two views are  possible,  the  Appellate  

Court  should  not  ordinarily  interfere  with  the  judgment  of  

acquittal.  This Court has laid down that Appellate Court shall  

not  reverse a judgment  of  acquittal  because another  view is  

possible  to  be  taken.  It  is  not  necessary  to  multiply  the  

decisions on the subject and reference to a later decision of this  

Court  in Ghurey  Lal v.  State  Of  Uttar  Pradesh1 shall  suffice  

wherein  this Court  considered a long line of  cases and held  

thus :

“69. The following principles emerge from the cases above: 1.  The  appellate  court  may review the  evidence  in  appeals against acquittal under Sections 378 and 386  of the Criminal Procedure Code, 1973. Its power of  reviewing evidence  is  wide  and the  appellate  court  can reappreciate the entire evidence on record. It can  review the trial court’s conclusion with respect to both  facts and law. 2.  The  accused  is  presumed  innocent  until  proven  guilty. The accused possessed this presumption when  

1 (2008) 10 SCC 450

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he was before the trial court. The trial court’s acquittal  bolsters the presumption that he is innocent. 3.  Due or proper weight and consideration must be  given to the trial  court’s  decision.  This is  especially  true when a witness’  credibility  is at issue. It  is not  enough for the High Court to take a different view of  the  evidence.  There  must  also  be  substantial  and  compelling reasons for holding that the trial court was  wrong.

70. In light of the above, the High Court and other appellate  courts should follow the well-settled principles crystallised by  number of judgments if it  is going to overrule or otherwise  disturb the trial court’s acquittal:

1. The appellate court may only overrule or otherwise  disturb  the  trial  court’s  acquittal  if  it  has  “very  substantial and compelling reasons” for doing so. A number  of  instances arise in  which the appellate  court  would  have  “very  substantial  and  compelling  reasons”  to  discard  the  trial  court’s  decision.  “Very  substantial and compelling reasons” exist when:

(i)  The trial  court’s  conclusion  with  regard  to  the facts is palpably wrong; (ii) The trial court’s decision was based on an  erroneous view of law; (iii) The trial court’s judgment is likely to result  in “grave miscarriage of justice”; (iv)  The  entire  approach  of  the  trial  court  in  dealing with the evidence was patently illegal; (v)  The trial  court’s  judgment  was  manifestly  unjust and unreasonable; (vi) The trial court has ignored the evidence or  misread the material evidence or has ignored  material  documents  like  dying  declarations/report of the ballistic expert, etc. (vii) This list is intended to be illustrative, not  exhaustive.

2. The appellate court must always give proper weight  and consideration to the findings of the trial court. 3. If two reasonable views can be reached—one that  leads  to  acquittal,  the  other  to  conviction—the  High  Courts/appellate  courts  must  rule  in  favour  of  the  accused.”

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13. The question to be considered is : is the High Court  

justified in reversing the judgment of  acquittal  and convicting  

the  appellants  for  the  offence  punishable  under  Section  302  

read with Section 149, IPC.

14. The  prosecution  tendered  PW-2,  PW-3,  PW-4,  

PW-5,  PW-6,  PW-7,  PW-8  and  PW-9  as  eye-witnesses  in  

support of its case. The witnesses other than PW-2, PW-3 and  

PW-4 did not support prosecution case and they were declared  

hostile witnesses. PW-2 is son of D-1. The Trial Court did not  

find his evidence worthy of  acceptance as his  evidence was  

found to be inconsistent with the evidence of PW-3, PW-10 and  

PW-20. The trial court also noticed material contradictions in his  

deposition. In cross examination he was completely shaken in  

respect of his statement in chief that A-2, A-3, A-7, A-17, A-60  

and  some  others  hatched  the  plan  to  do  away  with  the  

deceased  persons  suspecting  them  to  be  sorcerers.  He  

admitted  in the cross examination that he was not aware as to  

who brought  D-2 and D-5 to the scene of  offence. The Trial  

Court meticulously considered the evidence of PW-2 and gave  

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the  following  reasons  in  reaching  the  conclusion  that  his  

evidence is full of embellishments and improvements :

“No  doubt,  P.W.  2  has  alleged  in  his  chief- examination  that  he  found  A.2,  A.3,  A.7,  A.17,  A.60  and  someothers  hatching  a  plan  to  do  away  the  deceased  persons suspecting them to be sorcerers but he did not state  the  same  before  the  Investigating  Officer-P.W.  20  in  his  statement u/s. 161 Cr.P.C. He has also denied the said part  of  evidence  in  his  cross-examination.  During  the  cross- examination, P.W. 2 has admitted that he did not know about  the approach of  any of  the accused persons to A.16 and  bringing  him  to  Thimmapur  (v)  in  order  to  identify  the  sorcerers. P.W. 2 has deposed in his chief-examination that  A.2, A.3, A.5, A.6, A.9 to A.12, A.14, A.41, A.48, A.59, A.68  and A.77 brought the deceased persons and P.Ws. 6 and 7  forcibly from their respective houses. But during his cross- examination,  he could not  say who brought  the deceased  Uppakantha and Narsamma to the scene of offence though  admittedly, they were his neighbours. He has also admitted  at the end of his cross-examination that A.10 did not take the  deceased, mother of P.W. 2 to the scene of incident from his  house. As per his evidence in the cross-examination, by the  time he reached the scene of offence, he found gathering of  60 to 70 persons and that only 25 persons were near the  deceased  persons  and  others  were  at  a  distance.  This  version creates doubt about his version given in the chief- examination with regard to his witnessing of forcibly taking  the deceased persons to the scene of offence. P.W. 2 has  given the duration of the incident as 9.00 p.m. to 3.00 a.m.  and his presence at the scene althrough. As per his version,  he did not go to Police Station on the night of the incident  due to fear but went thereon the following morning on 3.8.2k  at 5.00 a.m. and informed about the incident to the SHO and  returned back to his village. If this version is taken to be true,  it can be said that the police received the information about  the incident at 5.00 a.m. for the first time on 3.8.2k but not at  6.30  a.m.  on  the  said  day  through  PW-1  by  way  of  his  complaint, ex. P.1. But contrary to the evidence of P.W. 2,  P.W. 10 has deposed that on the night of the incident itself at  about 2.00 a.m. P.W. 2 went to P.W. 10, engaged his jeep,  arrived  to  Thimmapur  (v)  at  about  6.00  a.m.  and  then  proceeded to Sangem P.S. and lodged a written complaint.  In fact, P.W. 2 has denied about it to a suggestion given by  the learned defence counsel in his cross-examination. P.W.  

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10  in  his  cross-examination  also  deposed  that  P.W.  2  informed him that  he came to know about the incident on  that night. If the version of P.W. 10 is taken to be true, the  entire evidence of P.W. 2 has to be jettisoned with regard to  his actual  witnessing of the incident.  P.W.  2 has deposed  that he has given names of the culprits who have committed  the offences to the A.S.I  and that he has noted down the  same  and  obtained  signature  of  P.W.  2.  But  the  C.I.  of  Police-P.W.  20  has  deposed  that  on  the  next  day  of  the  incident  i.e.  on  4.8.2k he  has recorded the statements  of  witnesses including P.W. 2 and for  the first  time came to  know about the names of accused persons. It is to be noted  that as per the evidence of P.W.2 and P.W.20, the C.I. of  Police visited Thimmapur (v) at 9.00 a.m. on 3.8.2k and that  at  that  time,  P.W.  2 was also present  in  the village.  This  aspect  creates  doubt  about  the  identity  of  the  accused  persons  during  the  course  of  investigation  conducted  by  P.W. 20.”

15. The Trial  Court  was also not convinced to accept  

the testimony of PW-3 (husband of D-5) as his evidence was  

inconsistent on material points with the evidence of PW-2.  The  

Trial  Court  pointed  out  the  material  contradictions  in  the  

deposition of PW-3 thus :

“P.W.  3  is  husband  of  the  deceased  Uppakanthamma. He has given time of the incident as 9.00  p.m. which is contrary to the time noticed in Ex. P.1 as 1.00  a.m.  As per the evidence of P.W. 3, A.1, A.2, A.3, A.5, A.6,  A.7, A.10 to A.13, A.34, A.37 and A.54 took his deceased  wife forcibly from his house to the scene of incident. Though  P.W.  2  has  alleged  in  his  chief-examination  about  his  witnessing the fact of taking the deceased Uppakanthamma  from her house, he did not give names of A-1, A.7, A.13,  A.34 and A.37 and A.54. Though P.W. 3 alleged that A-9  beat  his  deceased wife with a stick on her head and she  sustained  bleeding  injury  and  that  A.71  sprinkled  chilli  powder on it. P.W. 2 did not whisper about it  in his entire  evidence.  P.W.  2  has  deposed  that  A.13,  A.20  and  A.65  

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brought kerosene drum from the house of A.19 and that A.10  sprinkled kerosene on the deceased persons but P.W. 3 has  given the names of the accused persons noted above as to  have  brought  the  kerosene  drum  and  that  A.13  poured  kerosene on the deceased. Though P.W. 3 has stated that  A.17 supervised the whole affair, P.W. 2 did not state about  it. These are material contradictions in the evidence of P.Ws.  2 and 3 going to very root of the case………  

As  per  the  evidence  of  P.W.  3,  he  was  with  his  deceased wife Appakanthamma at the scene of incident till  she was shifted to MGM Hospital,  Warangal  for  treatment  and  that  although  she  was  conscious  and  did  not  give  names of  the persons who poured kerosene on her body  and set on fire. Evidently, she did not give names of any of  the accused persons as responsible for causing burn injuries  to her in her dying declaration dt. 3.8.2k vide Ex. P. 36.”

16. As regards PW-4 who is son of D-3 and D-4, the  

Trial  Court  found  his  evidence  self-contradictory  and  also  

doubted  his  witnessing  the  incident.  After  scanning  his  

evidence,  the  Trial  Court  gave  the  following  reasons  in  not  

accepting the evidence of PW-4 :

“P.W.  4  is  son  of  deceased  K.  Yellaiah  and  K.  Rajamma.  His evidence is self-contradictory because during  his chief-examination he has deposed that he saw A.1, A.5,  A.7,  A.8,  A.10 to  A.15,  A.17  and A.  41 while  beating  his  parents but in his cross-examination, he has deposed that by  the time, he reached the scene of incident, his parents were  already  lying  unconscious  and  were  surrounded  by  20  persons. Even at the end of his chief-examination itself, he  has  deposed  that  by  the  time  he  reached  the  scene  of  offence,  he  found  the  other  accused  persons,  except  the  accused  persons  noted  above,  were  not  present  there.  Admittedly,  when  his  parents  were  allegedly  taken  to  the  scene  of  offence  forcibly,  they  were  sleeping  in  the  front  portion of the house whereas PW-4 was sleeping  inside the  house. This aspect creates doubt about his witnessing the  

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incident.  As  per  his  evidence,  he  heard  a  commotion  at  about 12.30 midnight but as per the evidence of P.Ws. 2 and  3, the incident commenced at 9.00 p.m. itself,  P.W. 4 has  alleged that A.5, A.12 and A.13 only brought kerosene drum  from the house of A.19 which is contradictory to the versions  given by P.Ws. 2 and 3 noted above.  

17. Although  PW-6  and  PW-7  are  injured  witnesses  

and, according to prosecution, they were beaten at the scene of  

offence by the villagers but in their deposition, they stated that  

they  went  to  the  scene  of  occurrence  voluntarily.  Neither  of  

them named any of the accused for the injuries sustained by  

them. PW-8 is daughter of D-3 and D-4 and she deposed that  

she did not witness the incident and came to know about the  

same on the next day through the wife of PW-4. PW-9 deposed  

that  at  midnight  he heard  the  commotion  and rushed to  the  

scene  of  offence  but  he  returned  back  to  his  house  after  

somebody beat him and he could not identify as it  was dark  

night.

18. The Trial Court, thus, held that PW-5 to PW-9 have  

not supported the case of prosecution at all. As a matter of fact  

they were declared hostile witnesses by the prosecution.

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19. Insofar as High Court is concerned, it accepted the  

view of the Trial Court that offence punishable under Section  

148, IPC is not made out. The High Court affirmed the acquittal  

of the accused under Section 148, IPC holding thus :

“Coming to charge No. 1, leveled against accused 1  to 15, 17 to 59 (except accused No. 21) and 62 to 78, for the  offence punishable under Section 148 I.P.C., we are of the  view that though the act of rioting is made out, regarding the  persons and the weapons of offence said to have been used  by them, there is no evidence about  their  presence much  less usage of deadly weapons. The evidence of P.Ws. 2 to 4  is  also  totally  silent  on  this.  So,  in  the  absence  of  main  ingredient i.e., the presence of deadly weapons, the act of  the  accused,  even  assuming  that  the  same is  made  out,  cannot  be  brought  into  the  ambit  of  Section  148  I.P.C.  Accordingly,  the  acquittal  of  the  accused recorded by  the  trial  court  for  the  offence  under  Section  148  I.P.C.,  is  confirmed.”   

20. With regard to the offence punishable under Section  

448, IPC, High Court held that the evidence was lacking as to  

who actually trespassed into the houses of the deceased and  

forcibly dragged them out of their respective house. The High  

Court,  accordingly,  affirmed  the  finding  of  the  Trial  Court  

acquitting the accused for the offence under Section 448, IPC.

21. However, the High Court held that PW-2 to PW-4  

were reliable being eye-witnesses of truth. The High Court held  

that the contradictions in the evidence of PW-2 to PW-4 and the  

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evidence of Investigating Officer (PW-20) about the presence of  

accused cannot be accepted as the evidence of PW-20 is liable  

to be discarded. This opinion was formed by the High Court by  

perusal  of  the  statements  of  PW-2  to  PW-4  recorded  under  

Section  161(3),  Cr.P.C.  after  calling  for  the  case  diary  in  

exercise  of  the  power  of  the  Court  under  Section  172(2)  of  

Code of Criminal Procedure.

22. In the first place, High Court erred in accepting the  

evidence  of  PW-2  to  PW-4  without  adequately  meeting  the  

reasons  given  by  the  Trial  Court  for  not  accepting  their  

evidence.  Moreover,  we  considered  the  evidence  of  these  

witnesses ourselves and we find that the view of the Trial Court  

in not accepting the evidence of PW-2, PW-3 and PW-4 cannot  

be said to be erroneous. Secondly, and more importantly, the  

High Court committed a serious error of law in discarding the  

evidence of  PW-20 on the basis of  case diary summoned in  

exercise of power conferred on the Court under Section 172 of  

the Code.      

23. Section 172 of Code of Criminal Procedure reads thus :  

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(1) “Every  police  officer  making  an  investigation  under  this  Chapter  shall  day  by  day  enter  his  proceedings in the investigation in a diary, setting  forth  the  time  at  which  the  information  reached  him, the time at which he began and closed his  investigation, the place, or places visited by him,  and a statement of the circumstances ascertained  through his investigation.

(2) Any Criminal Court may send for the police diaries  of  the case under inquiry or  trial  in such Court,  and may use such diaries, not as evidence in the  case, but to aid it in such inquiry or trial.

(3) Neither  the  accused  nor  his  agents  shall  be  entitled to call for such diaries, nor shall he or they  be entitled to see them merely because they are  referred to by the Court; but, if they are used by  the police officer who made them to refresh his  memory,  or  if  the  Court  uses  them  for  the  purposes of contradicting such police officer, the  provisions of Sec. 161 or Sec. 145, as the case  may be,  of  the Indian Evidence Act,  1872 (1 of  1872) shall apply.”

24. A criminal court can use the case diary in the aid of  

any inquiry or trial but not as an evidence. This position is made  

clear  by  Section  172(2)  of  the  Code.  Section  172(3)  places  

restrictions  upon  the  use  of  case  diary  by  providing  that  

accused has no right to call for the case diary but if it is used by  

the  police  officer  who  made  the  entries  for  refreshing  his  

memory or if the Court uses it for the purpose of contradicting  

such police officer, it will be so done in the manner provided in  

Section 161 of the Code and Section 145 of the Evidence Act.  

Court’s power to consider the case diary is not unfettered.  In  

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light of the inhibitions contained in Section 172(2), it is not open  

to the Court to place reliance on the case diary as a piece of  

evidence directly or indirectly.   This Court had an occasion to  

consider Section 172 of the Code vis-à-vis Section145 of the  

Evidence  Act  and  Section  162  of  the  Code  in  the  case  of  

Mahabir  Singh v.  State  of  Haryana2 and  it  was  stated  as  

follows:

“14. A  reading  of  the  said  sub-sections  makes the  position clear that the discretion given to the court to  use such diaries is only for aiding the court to decide  on a point. It is made abundantly clear in sub-section  (2)  itself  that  the  court  is  forbidden  from using  the  entries of such diaries as evidence. What cannot be  used  as  evidence  against  the  accused  cannot  be  used in  any other  manner  against  him.  If  the court  uses the entries  in  a case diary  for  contradicting  a  police  officer  it  should  be done only in  the manner  provided in Section 145 of the Evidence Act i.e. by  giving the author of the statement an opportunity to  explain the contradiction, after his attention is called  to that part of the statement which is intended to be  so used for contradiction. In other words, the power  conferred on the court for perusal of the diary under  Section 172 of the Code is not intended for explaining  a contradiction which the defence has winched to the  fore  through  the  channel  permitted  by  law.  The  interdict contained in Section 162 of the Code, debars  the court from using the power under Section 172 of  the  Code  for  the  purpose  of  explaining  the  contradiction.”

25. The  High  Court,  however,  did  not  keep  the  

aforesaid legal position in mind and erred in placing reliance  

upon  the  evidence  of  PW-2  to  PW-4  by  verifying  their  2 (2001) 7 SCC 148

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statements recorded under Section 161(3) of the Code from the  

case diary.  It is here that the High Court fell into grave error in  

using the statements of PW-2 to PW-4 recorded under section  

161(3) of the Code; particularly for contradicting PW-20 without  

affording any opportunity to him to explain the position.  The  

course adopted by the High Court is impermissible in law as  

Section  172  of  the  Code  is  not  meant  to  be  used  for  the  

purpose it has been used by the High Court i.e. to overcome  

the contradictions pointed out by the defence. Ought we know  

what would have been the view of the High Court with regard to  

the  evidence  of  PW-2  to  PW-4,  had  it  not  considered  the  

statements  of  these  witnesses  under  Section  161(3)  of  the  

Code. As a matter of fact, High Court heavily relied upon the  

deposition  of  PW-2  to  PW-4  in  upsetting  the  judgment  of  

acquittal passed by the Trial Court.  This is what the High Court  

held :  

“Accused 2,3,5,6,9,10,11,12,14,41 and 48 were identified by  P.W.2;  Accused  1,2,3,5,6,7,10,11,12,13,34  and  37  were  identified  by P.W.3;  Accused 1,5,7,8,10,11,12,13,14,15,17,  41  and  48  were  identified  by  P.W.4;  and  Accused  1,2,3,5,6,7,8,9,10,11,12,13,14,15,17,34,37,41  and  48  were  commonly identified by P.Ws. 2 to 4.”

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26. In our view, as a result of aforenoticed error of law,  

judgment of the High Court is rendered unsustainable.

27. Another grave illegality vitiating the judgment of the  

High Court  is  conviction of  the appellants under Section 302  

read with Section 149 IPC even though appellants have been  

acquitted of the offence under Section 148 IPC.  

28. All 77 accused, vide charge No. 1, were charged to  

the effect  that  they were members  of  the unlawful  assembly  

and in prosecution of the common object of such assembly, to  

commit the murder of D-1, D-2, D-3, D-4 and D-5, committed  

the  offence  of  rioting  by  pouring  kerosene  and  thereby  

committed an offence punishable under Section 148 IPC vide  

charge No.4, all the accused were charged that they committed  

murder  by intentionally causing the death of  D-1 to  D-5 and  

thereby committed  an offence punishable  under  Section  302  

IPC.  The Trial  Court  held that  neither  offence under  Section  

148 IPC nor under Section 302 IPC was established against the  

accused  beyond  any  reasonable  doubt.   The  High  Court  

affirmed the finding of the Trial Court about the acquittal of the  

appellants under Section 148 IPC but convicted them for the  

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offence punishable under Section 302 read with  Section 149  

IPC without their being any charge to this effect.  Section 149  

IPC creates constructive liability i.e. a person who is a member  

of  the  unlawful  assembly  is  made  guilty  of  the  offence  

committed by another  member  of  the same assembly  in  the  

circumstances mentioned in the Section, although he may have  

had no intention to commit that offence and had done no overt  

act  except  his  presence  in  the  assembly  and  sharing  the  

common object  of  that  assembly.   The legal  position is  also  

fairly well settled that because of a mere defect in language or  

in the narration or in form of the charge, the conviction would  

not be rendered bad if accused has not been affected thereby.  

But in a case such as the present one where the appellants  

have been expressly charged for the offence punishable under  

Section  148  IPC  and  have  been  acquitted  thereunder,  they  

cannot  be legally  convicted for  the offence punishable under  

Section 302 read with Section 149 IPC.  It is so because the  

offence of rioting must occur when members are charged with  

murder  as  the  common  object  of  the  unlawful  assembly.  

Section 148 IPC creates liability on persons armed with deadly  

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weapons and is a distinct offence and there is no requirement  

in  law  that  members  of  unlawful  assembly  have  also  to  be  

charged  under  Section  148  IPC  for  legally  recording  their  

conviction  under  Section  302  read  with  Section  149  IPC.  

However, where an accused is charged under Section 148 IPC  

and acquitted, conviction of such accused under Section 302  

read with Section 149 IPC could not be legally recorded.  We  

find support from a Four Judge Bench decision of this Court in  

the case of  Mahadev Sharma v.  State of Bihar3 wherein this  

Court held thus :

“…………..Of  course,  if  a  charge  had been  framed  under  s.147  or  s.148  and  that  charge  had  failed  against any of the accused then s.149 could not have  been used against him. The area which is common to  ss.147 and 149 is the substratum on which different  degrees  of  liability  are  built  and there  cannot  be  a  conviction  with  the  aid  of  s.149  when  there  is  no  evidence of such substratum.”

29. In  view  of  the  aforesaid  legal  position,  the  

appellants having been acquitted under Section 148 IPC by the  

Trial Court as well as the High Court, they could not have been  

legally convicted by the High Court under Section 302 read with  

Section 149 IPC.

3 (1966) 1 SCR 18

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30. It is also pertinent to mention that the prosecution  

came  out  with  the  case  that  the  accused  committed  house  

trespass by entering into houses of  D-1 to D-5 and dragged  

them out with an intent to kill.  Accordingly, all accused persons  

were charged under Section 448 IPC  but all of them have been  

acquitted  as  prosecution  failed  to  establish  the  said  offence  

against them. This again  dislodges the material aspect of the  

prosecution case. Be that as it may, the view of the Trial Court  

in  passing  the  judgment  of  acquittal  is  a  possible  view and  

cannot  be  said  to  be  palpably  wrong  on  facts  or  based  on  

erroneous  view  of  law  and,  therefore,  High  Court  was  not  

justified in interfering with the judgment of acquittal.  It  is true  

that five persons were done to death in the dead of night in a  

ghastly manner and the whole incident is quite shocking but in  

the  absence  of  cogent  and  reliable  evidence  against  the  

appellants connecting them to crime, view of the Trial Court in  

passing  the  judgment  of  acquittal  cannot  be  said  to  be  

unjustified.   

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31. In the result  and for the reasons indicated above,  

the  appeal  deserves  to  be  allowed  and  is  allowed.  The  

judgment of the High Court passed on October 4, 2007 is set  

aside.   The  appellants  shall  be  released  forthwith,  if  not  

required in any other case.  

      ……………………J

(D.K. Jain)

      …….……………..J         (R. M. Lodha)

New Delhi November 6,  2009.

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