REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1362-1363 OF 2004

STATE OF M.P. … APPELLANT

VERSUS

SUGHAR SINGH & ORS. … RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. Both these appeals arise out of common

judgment and order passed by the High Court of

Madhya Pradesh (Gwalior Bench) dated January 3,

2003 in Criminal Appeal Nos. 242 of 1991 and

253 of 1991. By the said order, the High Court

allowed the appeal filed by the accused and set

aside  the  order  of  conviction  and  sentence

recorded  by  the  Additional  Sessions  Judge,

Shivpuri  dated  October  14,  1991  in  Sessions

Case No. 29 of 1990. 2. The case of the prosecution is that on

October  20,  1989  Balkishan  (hereinafter

referred to as ‘the deceased’) and PW 2 Sarvan

Lal were guarding their Jowar crop and for the

said purpose they had stayed during night time

in  their  field.  Their  neighbour  farmers,

namely,  Ramprasad  (PW8),  Ramsingh  (PW9)  and

Raghunath (PW10) were also guarding over their

respective  crops  and  were  in  the  huts

constructed in their fields. According to the

prosecution, at about 3-4 a.m. early in the

morning,  cattle  of  village  Nehgawan  started

grazing  the  Jowar crop  of  the  deceased.

Deceased  Balkishan  and  Sarvan  Lal  (PW2)

surrounded the cattle and started taking them

to  cattle  pond.  At  that  time,  all  accused

persons who were residents of village Nehgawan

appeared  on  the  spot.  They  were  armed  with

lethal  weapons, like  farsa, ballam,  luhangi,

lathi, etc. They attacked Balkishan and Sarvan

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Lal and caused injuries to them. On the shouts

of injured Balkishan and Servanlal, Ram Singh,

Raghu Nath, Ram Prasad and Ram Niwas reached

there and saved Balkishan and Sarvan Lal. The

accused did not allow the cattle to be taken to

cattle  pond  and  took  away  with  them.  While

leaving  the  place,  they  threatened  deceased

Balkishan and Sarvan Lal of their lives. 3. Immediately  after  the  incident,

deceased  Balkishan  and  Sarvan  Lal  went  to

thana and lodged First Information Report (FIR)

at  Police  Station  Rannod.  The  incident  was

narrated by deceased Balkishan and Case No. 57

of 1989 of was registered against the accused

for  offences  punishable  under  Sections  147,

148, 149, 323, 324 and 406 of the Indian Penal

Code, 1860 (IPC). Both the injured were then

taken  to  Primary  Health  Centre,  Rannod  for

medical  examination. Dr.  Suresh Majeji  (PW5)

examined  Balksihan.  He  also  examined  Sarvan

Lal.  Since  the  condition  of  Balkishan  was

critical, he was taken to District Hospital,

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Shivpuri. On the way, however, Balkishan died.

Postmortem of Balkishan was performed by Dr.

G.D. Agrawal    (PW 1) on the next day i.e. on

October  21,  1989.  Usual  investigation  was

carried  out,  accused  were  arrested,  weapons

were recovered at their instance and charge was

framed against the accused. They denied having

committed any offence and claimed to be tried. 4. The learned Additional Sessions Judge,

Shivpuri believed the evidence of PW 2 Sarvan

Lal, PW 4 Ram Niwas, PW 8 Ram Prasad, (eye

witnesses) and PW 1 Dr. G.D. Agarwal, convicted

all the accused for an offence punishable under

Sections 143, 302 read with 149 and 324 read

with  149,  148,  IPC  for  forming  unlawful

assembly and for causing death of Balkishan and

for  causing  grievous  hurt  to  Sarvan  Lal  in

furtherance  of  common  object.  They  were

accordingly punished for the offence punishable

under Section 302 read with Section 149, IPC

for which they were ordered to undergo rigorous

imprisonment  for  life.  For  the  offence

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punishable under Section 324 read with Section

149,  IPC,  they  were  ordered  to  undergo

imprisonment for two years. Similarly, for an

offence  under  Section  148,  IPC,  they  were

ordered  to undergo  rigorous imprisonment  for

two years. 5. Being  aggrieved  by  the  judgment  and

order  passed  by  the  trial  Court,  the

respondent-herein preferred appeals. As stated

above, the High Court, vide its judgment and

order  dated  January  3,  2003,  set  aside  the

order of conviction and sentence recorded by

the trial Court and acquitted all the accused

mainly  on  the  ground  that  there  was

inconsistency  between  the  evidence  of  eye-

witnesses and medical evidence. 6. The State has challenged the order of

acquittal recorded by the High Court. 7. Notice  was  issued  by  this  Court  on

March 19, 2004. Leave was granted on November

19, 2004. The matter has now been placed before

us for final hearing.

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8. We have heard learned counsel for the

parties. 9. The  learned  counsel  for  the  State

contended that the High Court was wholly wrong

in allowing the appeal filed by the accused and

in acquitting them for the offences with which

they were charged and convicted by the trial

Court. It was submitted that the trial Court,

after  properly  appreciating  the  evidence  of

prosecution witnesses, held that the incident

in question was proved, all the accused were

members  of  unlawful  assembly,  they  attacked

deceased  Balkishan  and  Sarvan  Lal.  Several

injuries were caused to deceased Balkishan and

injured  Sarvan Lal.  Participation of  accused

persons was proved beyond reasonable doubt from

the evidence of prosecution witnesses, namely,

PW2-Sarvan Lal-injured eye-witness and PW 4 Ram

Niwas,  and  PW8-Ram  Prasad  (other  eye-

witnesses).   Injuries  caused  to  deceased

Balkishan and injured Sarvan Lal were proved by

medical examination. The prosecution evidence

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also  went  to  show  that  the  accused  had

committed the above offences in furtherance of

common object of unlawful assembly as deceased

Balkishan and Sarvan Lal were taking cattle of

the accused to cattle pond. The accused did not

allow the cattle to be taken to cattle pond and

attacked deceased Balkishan and Sarvan Lal with

lethal weapons. There was no inconsistency in

the  evidence  of  eye-witnesses  and  medical

evidence.   The  trial  Court  considered  the

evidence of eye-witnesses.  It also considered

medical evidence and held that the incident and

participation  of  the  accused  was  clearly

proved. 10. The  High  Court  disbelieved  the

prosecution case on incorrect appreciation of

evidence and set aside the order of conviction.

The impugned order of the High Court, hence,

deserves to be set aside by allowing the appeal

and by restoring the order of conviction and

sentence recorded by the trial Court.

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11. The  learned  counsel  for  the

respondents-accused,  on  the  other  hand,

supported the order passed by the High Court.

It  was  submitted  that  taking  into  account

inconsistencies  and  contradictions  in  the

testimony  of prosecution  witnesses, the  High

Court extended benefit of doubt to the accused

and there is no reason to interfere with the

said finding. It was also submitted that even

if  this  Court  feels  that  two  views  are

possible, benefit of doubt ought to be extended

to the accused and not to the prosecution. In

any case, in exercise of power under Article

136 of the Constitution, this Court may not

interfere with the order of acquittal recorded

by  the  High  Court  and  the  appeals  may  be

dismissed. 12. Having heard learned counsel for the

parties, in our opinion, the appeals deserve to

be partly allowed. 13. As  far as the contradictions in the

deposition  of  eye  witnesses  and  medical

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evidence is concerned, in our opinion, the High

Court was not right in coming to the conclusion

that  medical  evidence  did  not  support  the

version  of  eye-witnesses.  It  is  clearly

established from the evidence of injured eye-

witness, PW2-Sarvan Lal and PWs 4 and 8 Ram

Niwas  and  Ram  Prasad  that  the  prosecution

witnesses were in their fields protecting the

crop of Jowar in the early morning of October

20, 1989 and the cattle entered the fields.

Deceased Balkishan and injured PW2-Sarvan Lal

wanted to take them to cattle pond. The said

act  enraged  the  accused  and  they  attacked

Balkishan and Sarvan Lal which resulted in the

death of Balkishan and caused serious injuries

to  PW2-Sarvan  Lal.  There  was  no  reason  to

disbelieve  the  evidence  of  prosecution

witnesses.  PW2-Sarvan Lal  was injured  during

the  same incident.  The prosecution  witnesses

have supported the case of the prosecution with

regard to the incident as also participation of

the accused.

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14. Injuries  sustained  by  deceased

Balkishan and injured Sarvan Lal-PW2 have been

clearly  established. The  main reason  weighed

with  the  High  Court  was  that  PW1-Dr.  G.D.

Agrawal (PW 1) had found seven injuries on the

body of the deceased and he had opined that the

injuries  were  caused  by  hard  and  blunt

substance. PW1-Dr. G.D. Agrawal did not find

any incise wound on the head of the deceased.

PW5-Dr.  Suresh  Majeji  who  had  examined  the

deceased  immediately  after  the  incident  and

advised  him  to  be  taken  to  the  District

Hospital had stated that there were two incise

injuries, one on the middle of the head and the

other on the medial aspect of lower 1/3” of the

right  leg.  According  to  the  High  Court,

therefore, medical evidence was not consistent

with the prosecution evidence and the benefit

of doubt should be given to the accused.  15. In our opinion, the High Court was not

right in acquitting the accused on the ground

that  there  was  inconsistency  in  the  medical

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evidence and medical evidence is not in accord

with  ocular  evidence  of  the  prosecution

witnesses.  Dr.  Suresh  Majeji  (PW5),  in  his

sworn testimony stated that he applied stitches

on  the  wounds  of  the  deceased.  Since  his

condition was serious, he was advised to go to

District  Hospital  but  before  the  deceased

reached  there,  he  died.  In  fact,  when  a

question was put to PW1-Dr.G.D. Agrawal in the

cross-examination  on  behalf  of  the  accused

regarding  injuries  sustained  by  deceased

Balkishan, the latter replied that he did not

find incise wound either on the forehead or at

the right thigh. He, however, stated; “After

dressing, it is difficult to tell about the

nature  of  injuries”.  In  view  of  the  above

explanation, it was clear that the High Court

committed an error in ordering acquittal on the

ground of inconsistency in medical evidence and

version  of  eye-witnesses.  To  that  extent,

therefore,  the  decision  of  the  High  Court

deserves to be interfered with.

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16. As  far  as  injuries  to  the  deceased

Balkishan are concerned, he had the following

injuries; (1) Incised  wound  1’  x  1/2”  x  1/4”  on  the

middle of the head. Margin clean cut well

defined.

(2) No injury seen on the left lower limb.

(3) Incised  wound  d1”x1/4”4x1”  deep  on  the

medial aspect of lower 1/3” of the right

leg.  Margin  clean  cut  bleeding  present,

whole lower left leg below knee joint to

be left ankle joint.

(4) Multiple  contusions  4”x2  and  5”x2  were

present on the back. Bluish red colour.

17. It has also come in evidence that the

incident took place ‘all of a sudden’.  When

the  accused  saw  that  deceased  Balkishan  and

Sarvan Lal were taking cattle to cattle pond,

they wanted both of them not to do so and with

a view to prevent them from taking cattle to

cattle pond, the accused attacked them.

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18. Considering  the  nature  of  injuries,

and totality of facts and circumstances, we are

of the view that the case does not fall within

the  definition  of  ‘murder’  as  defined  in

Section 300, IPC punishable under Section 302,

IPC, but in a case of culpable homicide, not

amounting  to murder  punishable under  Section

304 II, IPC. 19. For  the  foregoing  reasons,  in  our

opinion,  the  appeals  deserve  to  be  partly

allowed and are allowed by setting aside the

order of acquittal recorded by the High Court.

We, therefore, convict the respondents-accused.

The  conviction  of  the  respondents  for  an

offence punishable under Section 302 read with

Section 149, IPC recorded by the trial Court

for  causing  death  of  deceased  Balkishan  is

modified to an order of conviction punishable

under Section 304, Part II read with Section

149, IPC. The accused are ordered to undergo

rigorous imprisonment for six years. Conviction

under Section 148, IPC as also under Section

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326  read  with  Section  149,  IPC  for  causing

grievous hurt to PW2 Sarvan Lal is maintained

in view of the fact that the High Court was not

right in interfering with the order passed by

the trial Court. The sentence awarded on the

accused in respect of both the offences also

calls for no interference. 20. The appeals are partly allowed and the

accused  are  convicted  for  the  offence

punishable under Section 304, Part II read with

Section  149,  IPC  and  they  are  ordered  to

undergo  rigorous imprisonment  for six  years.

Since the order of acquittal was recorded by

the  High  Court,  the  respondents-accused  are

ordered to surrender to undergo the remaining

period of sentence.  It is needless to clarify

that the period during which the accused had

remained in jail will be adjusted. 21. Ordered accordingly.

…………………………………………………………J. (ARIJIT PASAYAT)

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…………………………………………………………J. (C.K. THAKKER)

NEW DELHI, …………………………………………………………J. NOVEMBER 07, 2008. (LOKESHWAR SINGH PANTA)

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