26 April 1996
Supreme Court


Bench: KURDUKAR S.P. (J)
Case number: Crl.A. No.-000469-000469 / 1986
Diary number: 68245 / 1986






DATE OF JUDGMENT:       26/04/1996


CITATION:  JT 1996 (5)   523        1996 SCALE  (3)780



JUDGMENT:                       J U D G M E N T. S.P. KURDUKAR, J.      This  criminal   appeal  is  filed  by  six  appellants challenging the legality and correctness of the judgment and order of  conviction date 24th July, 1986 passed by the High Court of  Madhya Pradesh  at Jabalpur.  Under  the  impugned orders the  High Court  set aside  the  order  of  acquittal passed in  favour of  appellants on  7-12-1982 by  the Addl, Sessions Judge, Hoshangabad. 2.   The appellants  were put  up for trial for the offences punishable under sections 148, 302 and 324 read with section 149 of the Indian Penal Code for committee murders of Lakhan Pal and  Ramvati and  also causing  injuries to Girdhari Lal (PW2), Omkar  (PW3), Satish  Kumar (PW4)  and Rajender Kumar (Pw6). 3.   One Gopi  Lal had  two sons namely Lakhan(deceased) and Girdhari    Lal(PW2).     They    were    living    jointly. Ramvati(deceased)  was   the   wife   of   Lakhan(deceased). Mayabai(PW1) is  the wife of Girdhari Lal(PW2). Satish Kumar (PW4) and  Rajender Kumar (PW6) are the sons of Lakhan while Omkar (PW3) is brother-in-law of Girdhari Lal. 4.   Appellants 1  to 3  and 6  namely Shanker Lal, Girdhari Lal, Lakhan  and Chhote  Lal are  the sons  of  one  Manbodh Singh. Appellant  Nos. 4  and 5  are their  nephews.  It  is alleged by  the prosecution  that Gopi Lal had mortgaged his field with  Suman Bai wife of appellant No.4 Kalu Ram and it was agreed  that the  loan would  be repaid within two years and thereupon  the said field would be returned to Gopi Lal. However, the  said Kalu  Ram instead of keeping his word got the said  field mutated in the name of Suman Bai, It is this act of  Kalu Ram, the appellant No.4, had led to ill-feeling between the  parties and it is stated that on report of Gopi Lal proceedings  against the  mutation were  innitiated  and Lakhan (deceased) was looking after the said litigation. 5.   It is  alleged by  the prosecution  that on 14-11-1981, the women  folk from  both the  sides had  some quarrel.  At



about 5,00  p.m., Ramvati  (deceased), Maya  Bai  (PW1)  and their mother-in-law  Dipya Bai  were sitting  in their court yard  in  front  of  their  house.  All  of  a  sudden,  the appellants who were armed with deadly weapons, came to their court yard.  It is  the case of the prosecution that Shanker Lal, appellant No.1 was armed with Farsa, Kalu Ram appellant No.4 was  armed with  an axe and rest of the appellants were carrying lathis.  At about  the same  time, Lakhan(deceased) was in  the court yard and he was unloading his bullock cart in Khalian.  Seeing all  the appellants  in the  court yard, Lakhan(deceased) went to them. He was then surrounded by the appellants and  suddenly the appellant No.1 Shanker Lal gave a blow  of Farsa  on his  head. Kalu  Ram the appellant No.4 gave an axe blow on the waist of Lakhan. Lakhan fell down on the ground  and all  the accused  thereafter started beating with lathis. Seeing this ghastly assault on Lakhan, Ramvati, the wife  of Lakhan  rushed towards him to save him from the said assault.  She was also assaulted by the appellants with lathis. In  the mean-times  Girdhari Lal(PW2),  Omkar (FW3), Satish Kumar  (PW4) and  Rajender Kumar (PW6) also rushed to the scene  of incident  to save  Lakhan and Ramvati from the said assault.  It is  the case  of the  prosecution that the appellants have  also assaulted these witnesses with weapons in their hands. 6.   At about  the same  time, a Bus was passing by the said road and  the conductor  of the  said bus Faquir Mohd.(PW13) seeing a crowd rushed to the Police Station Piparia which is about two  and  half  kilometers  away  from  the  place  of incident and  gave a  sanaha report Ex.14 at about 5.15 p.m, He only  referred to  the quarrel but no details were given. P.S.I. Pateria  (PW17) on  receipt of the said sanaha report reached the  place of  incident with  his staff and recorded the Dehati  Nalishi(Ex.P1) on  the information given by Maya Bai (PW1).  P.S I.  Pateria  (PW  17)  during  investigation recorded the  statements of  some witnesses  On  15-11-1981, P.S.I. Pateria  (PW17) prepared  an inquest Panchnama on the dead bodies  of Lakhan  and Ramvati  and sent  them for post mortem examination, During investigation, PSI Pateria (PW17) recovered  some   incriminating  articles  pursuant  to  the statements  made   by  the  accused.  After  completing  the investigation, all  the appellants were put up for trial for the offence  of committing  murders of Lakhan (deceased) and Ramvati (deceased)  and causing  injuries to the prosecution witnesses punishable  under sections  148, 302  and 324 read with sections 149 of Indian Penal Code. 7.   The prosecution in support of its case examined as many as seventeen witnesses out of which Maya Bai (PW1), Girdhari Lal (PW2),  Omkar (PW3),  Satish Kumar  (PW4)  and  Rajender Kumar (PW  6) were  the eye  witnesses. The  prosecution  in order to  prove various  Panchanamas including  recovery  of weapons examined  five witnesses.  Dr. Devender  Kumar  Jain (PW15)  was   also  examined   to  prove   the  post  mortem examination report  Ex.P22, on  the dead body of Lakhan. Dr. R.O. Maheshwari  (PW14) held  post mortem examination on the dead body of Ramvati and the said report is Ex.P-20. 8.   The defence  of the  appellants(accused) was  of  total denial. According  to them,  they were falsely implicated in the case.  The evidence  of the eye witness is totally false and they  have implicated them (accused) out of enmity. They also denied  to have  caused any  injury to  the prosecution witnesses, The  appellant, therefore,  prayed that  they are innocent and they be acquitted . 9.   The learned  Addl, Sessions  judge on  appraisal of the evidence  on   record  disbelieved  all  the  eye  witnesses principally on  the ground  that they are close relatives of



the deceased  and are  on inimical terms with the appellants (accused). The  medical evidence  adduced by the prosecution does not  lend support  to the evidence of the eye witnesses in as  much as  there are  various  discrepancies  in  their evidence. The learned Addl. Sessions Judge has enumerated as many as 13 circumstances which in his opinion go against the prosecution case  and consistent  with these  findings,  the Addl. Sessions Judge acquitted all the appellants. 10.  The State  of Madhya  Pradesh aggrieved by the order of acquittal preferred  an  appeal  to  the  High  Court  under Section 378(1)  and (3)  of  the  Criminal  Procedure  Codes challenging the  legality and  correctness of  the order  of acquittal. The  High Court  in its  judgment dated  July 24, 1986 on re-appraisal of the evidence on record did not agree with the  reasons given  by the learned Addl. Sessions Judge for the  order of  acquittal. The  High Court  held that the view taken  by the  Addl. Sessions  Judge  is  perverse  and cannot be  sustained. The  High Court consequently set aside the order  of acquittal and convicted the appellants Shanker Lal and  Kalu Ram  for the  offence punishable under section 302 or  in the  alternative 302 read with section 149 of the Indian  Penal   Code  for  committing  the  murder    Lalhan (deceased)  and   Ramvati(deceased)  The   High  Court  also convicted Girdhari  Lal  the  appellant  No.2,  Lakhan  Pal- appellant No.3  and appellant  No.5 Phool  Chand for offence punishable under  section 302  read with  section 149 of the Indian Penal  Code  and  sentenced  each  of  them  to  life imprisonment.  The  appellants  were  also  convictod  under section 323  read with  section 149 of the Indian Penal Code and each  one of them was sentenced to rigorous imprisonment for  six   months.  All   sentences  were  directed  to  run concurrently. It  is against  this  judgment  and  order  of conviction passed  by  the  High  Court  on  24-7-1986,  the appellants have preferred this appeal. 11.  Sh.  S.K.  Mehta,  the  learned  counsel  appearing  in support of  this appeal  assailed the  impugned judgment and order on  various grounds.  He firstly  urged that  the High Court has committed an illegality while interfering with the reasoned order  of  acquittal  passed  by  the  trial  Court Counsel urged  that the  trial court has assigned as many as thirteen good, reasons for acquitting all the appellants and each one  of them  is supported  by evidence  on record. The High Court on reappraisal of the. evidence on record was not justified in  reversing  the  order  of  acquittal.  Learned counsel contended  that it  is well  settled that  the  High Court although   got the power to re-appreciate the evidence on record  but unless  three   are ’compelling  reasons   to differ with order of   acquittal, the High Court  ought  not to have  interfered with  the  order  of  acquittal  Counsel further urged  that if  two views  are possible  and the one which is  in favour  of the  accused if  taken by  the trial court the  High Court  had committed  an error  while taking contrary view  and consequently  setting aside  the order of acquittal. Learned counsel for the appellants then contended that the  trial court  had refused  to believe  the evidence given by  the eye  witnesses principally  on the ground that they are close relatives of the deceased and the prosecution has not  examined any  independent eye witness who were said to be  present at  the time  of incident. Supplementing this argument, learned  counsel for the appellants urged that the evidence of  the eye  witnesses is full of discrepancies and material omissions  and the  High  Court  has  totally  over looked this  lacuna in the prosecution case. Learned counsel for the  appellant then  urged  that  the  medical  evidence totally belies  the prosecution  story narrated  by the  eye



witnesses and  therefore, the  High Court  has committed  an error in setting aside the order of acquittal. 12.  Sh,   T.C.    Sharma,   learned    counsel   for    the respondent/State of  Madhya Pradesh  supported the  impugned judgment and order, 13.  We have   carefuly gone through the evidence of the eye witnesses and  have perused  the judgment of the trail court as also  the  judgment  of  the  High  Court  we  have  also considered the  above submissions of learned counsel for the appellants with reference to the evidence on record. 14.  It is  well settled  proposition that  the  High  Court while interfering  with the  order of acquittal must bear in mind the  reasons given by the trial court for acquittal. It is also  well settled that if two views are possible and the one in  fovour of the acquittal if taken by the trial court, the  High   Court  will  not  interfere  in  such  order  of acquittal. there is catena of judgments of this Court on the aforesaid proposition  and  it  is  not  necessary  to  make reference to  these decisions. From the judgment of the High Court, it  is clear  that the High Court was very much aware of this settled position of law and had also referred to all these decisions. The High Court has given reasons as how the order of acquittal passed by the trial court unsustainable. 15.  He are  in agreement with the reasons given by the High Court while  setting aside  the order of acquittal passed by the trial court. 16.  Coming to  the next  submission of  the learned counsel for the appellants that the evidence of the eye witnesses be discarded on the ground that they are close relatives of the deceased and  the prosecution  has  failed  to  examine  the independent witnesses  although they  were  available,  here again, we  are unable to agree with this contention. It is a well settled  proposition that evidence of the eye witnesses who are said to be close relatives, cannot be discarded only on the  ground that  they are  the close  relatives  of  the deceased. This  Court has time and again held that in such a Situation all  that is  needed is  that the  Court must  put itself on  guard and  the evidence  of such eye witnesses be appreciated  with   close  scrutiny.   The  High  Court  has considered this  aspect in  its judgment and has come to the conclusion that  the evidence  of the  eye witnesses  namely Maya Bai  (PW1), Girdhari  Lal (PW2), Satish Kumar (PW4) and Rajender Kumar  (PW6) suffer from no infirmity. We have also carefully gone  through the  evidence of  four eye witnesses and we  find that  the evidence  of these four witnesses can safely be  relied upon  despite the  act that  they are  the close  relatives   of  deceased  Lakhan  and  Ramvati.  Maya Bai(PW.1) in  her evidence  before the  Court has  given all details of  the incident.  According to this witness, on 14- 11-1981 at  about 4,00  p.m., she  was sitting  in the court yard alongwith  Ramvati(deceased)  and  their  mother-in-law Dipya Bai.  They were  chit-chatting. At  that times Shanker Lal armed with Farsa, Kalu Ram armed with an axe and rest of the appellants  armed with  lathis came to their court-yard. At that time, deceased Lakhan was unloading his bullock-cart in the  Khalian, Seeing  all  these  appellants  around  the women-folk, Lakhan  (deceased) rushed  to the court yard and thereupon all the appellants surrounded him. The witness has further stated  that Shanker  Lal gave a blow with his Farsa on the  head of Lakhan and then Kalu Ram gave an axe blow on his waist  Lakhan fell  down and then rest of the appellants started assaulting him with lathis. The witness then started that, Ramvati,  who was  the wife of Lakhan immediately went to him and in order to save him from the assault fell on his body.   The   appellants   thereafter   started   assaulting



Ramvati(since  deceased).  When  hue  and  cry  was  raised, Girdhari Lal (PW2), Satish Kumar (PW4), Rajender Kumar (PW6) and  other   persons  came  at  the  scene  of  offence  and thereafter the  appellants fled away. This is the substratum of the  prosecution case  deposed to  by Maya Bai (PW1). The appellants have  cross-examined this witness at great length but there  is nothing  in the  cross-examination which would make her  evidence unreliable. Having regard to the time and place of  the incident, it would be quite natural to believe that the  witness was present at the time of incident at her house. There  are some  minor contradictions which have been brought on record by the appellants but these contradictions have been rightly ignored by the High Court. The evidence of Maya  Bai   (PW1)  finds   corroboration  in   all  material particulars  from  the  evidence  of  other  eye  witnesses, namely, Girdhari Lal (PW2), Satish Kumar (PW4), and Rajender Kumar (PW6).  We have carefully gone through the evidence of all these  eye witnesses  and in our opinion, the High Court has committed  no error  in accepting  the evidence of these eye witnesses         High  Court has  rightly held that the evidence of  these eye witnesses cannot be discounted on the ground that  they are close relatives of Lakhan deceased and Ramvati. 17.  There is  also evidence  on record  to  show  that  the appellants bore  a grudge  against the family of complainant and in  particular Lakhan(since  deceased) who  was  looking after the  litigation pending against Suman Bai, the wife of Kalu Ram  (appellant No.4)  who had  managed to get the land mutated in  the name  of his  wife(Suman Bai). It is come on record that  the appellants  who are closely related to each other and  had an  ill-feeling against  the  family  of  the deceased Lakhan on that count. The High Court in our opinion was right  in accepting  the  evidence  of  the  prosecution witnesses as  regards the  enmity held out by the appellants against Lakhan(deceased). 18.  Coming  to  the  arguments  raised  on  behalf  of  the appellants  as   regards  the  discrepancy  in  the  medical evidence and  the evidence of eye witnesses, we have perused the evidence  of Dr.  Jain (PW15)  and Dr. Maheshwari (PW14) and the  post mortem  reports Ex.P-22  and Ex.P-20 of Lakhan and Ramvati  respectively.  There  are  number  of  injuries caused by sharp edged weapons like Farsa and Kulhari as well as by  lathis. There  is, therefore,  no  substance  in  the contentions raised  on behalf  of the  appellants  that  the medical evidence  does not support the evidence given by the prosecution witnesses. 19.  After hearing  arguments of  both the parties and after going through  the record of the case, we are satisfied that there is  no substance  in the appeal. The impugned order of the High  Court does  not  suffer  from  any  illegality  or infirmity. The  appeal, thus,  stands dismissed. Appellants, who are on bail shall surrender to their bailbonds forthwith to serve  out the  remainder  of  the  respective  sentences awarded to  each one of them under the impugned order passed by the High Court.