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                                              REPORTABLE

         IN THE SUPREME COURT OF INDIA          CRIMINAL APPELLATE JURISDICTION

      CRIMINAL APPEAL NO. 869 OF 2008                 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 4710 OF 2007

TULSIRAM & ORS.                ......   APPELLANT

VERSUS

STATE OF M.P.                  ......   RESPONDENT

            J U D G M E N T

C.K. THAKKER, J.

1.       Leave granted.

2.       The present appeal is directed against

the judgment and order passed by the Court of

Additional      District   &   Sessions       Judge,

Chanchoda, District Guna on February 22, 2000

in Sessions Case No. 587 of 1997 and confirmed

by the High Court of Madhya Pradesh, Jabalpur

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(Gwalior      Bench)        on     December       11,     2006     in

Criminal Appeal No. 210 of 2000.

3.         The short facts of the case are that

First Information Report (FIR) was lodged by

one Ram Singh (PW7), son of Ram Prashad Meena

resident      of     Kulakheda       on    October       1,     1997.

According     to     the     prosecution,         on    October    1,

1997, one Ramesh Singh was going from Anjali to

Kumbhraj      on    motor-cycle       of    one    Govind       Singh

along    with      Raghuveer       Singh    and    Hukum       Singh.

When they reached near Khatakiya Tiraha, all

accused persons who were hiding themselves in

the shadow of a Mini Bus and armed with lethal

weapons,        like       lathi,     farsa        and        luhangi

appeared,       stopped      the    motor-cycle          driven    by

Ramesh     Singh       and       started    beating        him     by

inflicting         blows.         Accused-2       Bhagwan       Singh

caused farsa blow on the left hand of Ramesh,

Accused-1       Tulsiram         caused     luhangi       blow     on

parietal region of Ramesh Singh, Accused-4 Daku

and Accused-3 Roop Singh gave lathi blows on

legs    and   knees     of       Ramesh    Singh.        Raghuveer

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Singh Meena came to the rescue of Ramesh Singh,

but Accused-1 Tulsiram inflicted luhangi blow

over   his     right     hand.   Raghuveer     Singh    Meena,

hence, immediately ran away from the place of

occurrence.          Several injuries were caused by

accused persons to Ramesh Singh.               Ramesh Singh

fell    down    and    became    unconscious.         All   the

accused then took Ramesh Singh and threw him in

the    pit.    Hari    Singh,    Chandan     Singh    and   Ram

Singh meanwhile came at the place of occurrence

and    saw     the    accused    running    away     from   the

place.       Ramesh Singh was then taken out of the

pit, was placed in a Matador and was taken to

the Police Station Kumbhraj. Injured Raghuveer

Singh Meena also reached the Police Station.

4.           According to prosecution, Ramesh Singh

and    injured        Raghuveer     Singh      were    plying

passenger-jeep         between    Kumbhraj     to    Khatakiya

and Khatakiya to Kumbhraj.              The accused persons

demanded       Rs.50/-    per    day,    per   trip.        The

injured, however, did not oblige the accused

which was the route cause and with a view to

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teach a lesson to Ramesh Singh and Raghuveer

Singh, the accused persons assaulted them.

5.        A     case      was    registered       against      the

accused for offences punishable under Sections

307, 325, 323, 147, 148, 149 and 34 of the

Indian      Penal         Code     (IPC).        After       usual

investigation, challan was filed in the Court

of Judicial Magistrate, First Class who passed

an order of committal in view of the case being

triable by a Court of Session.                 The accused did

not plead guilty and claimed to be tried.

6.        The       prosecution,         to    prove   its    case

against       the      accused,          examined        fourteen

witnesses.          The    learned       Additional      Sessions

Judge held that the prosecution was able to

establish     the      case      beyond       reasonable     doubt

against   the       accused      and   after     hearing     them,

passed an order of conviction and sentence. The

High Court confirmed the order passed by the

trial court.

7.        Against         the    order    of    conviction     and

sentence, the appellants have approached this

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Court. Prayer for exemption from surrendering

was   rejected       by     this      Court.      The    appellants

thereafter surrendered and notice was issued.

Records and proceedings were called for.                        Since

neither exemption from surrendering was granted

nor   the    accused       were       enlarged     on    bail,    the

matter      was    ordered       to    be    posted      for    final

hearing.

8.          We have heard the learned counsel for

the parties.

9.          The learned counsel for the appellants

contended     that        both   the     courts     committed      an

error in convicting the appellants.                            It was

submitted that the genesis of the prosecution

was doubtful as the prosecution has not come

with clean hands. It has suppressed material

facts from the Court.              Apart from omissions and

material     contradictions            in    the    testimony      of

witnesses,         even     medical         evidence     does     not

support the case of the prosecution.                           It was

submitted         that     according        to     PW4   Dr.     A.D.

Chinchurkar,        Ramesh       Singh      had    received      only

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three injuries.             Ramesh Singh, however, stated

in     his       evidence       that    he     had    received         28

injuries.         Ramesh        Singh    himself       has         stated

before the Police that there were other persons

over and above accused and even those persons

had     assaulted         him.     Thereafter,         however,        he

totally turned round and stated on oath before

a Court of law that other persons were not

there.       The evidence of injured Raghuveer Singh

is    of     no    use    to     the    prosecution       as        after

receiving injury, he had left the place and was

not     there.      The     third       person       (Hukum        Singh)

virtually         did     not     support      the     prosecution.

According to the counsel, the accused persons

were falsely implicated and involved because of

‘business rivalry’. Ramesh Singh and Raghuveer

Singh were running taxi without any licence.

When       the    accused        persons      objected        to     such

illegal activity, they were roped in a criminal

case.      It     was,    therefore,         submitted    that        the

appellants are entitled to acquittal.

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10.        It     was       further       submitted        that     the

courts below had committed an error of law in

not considering the provisions of Sections 360

and 361 of the Code of Criminal Procedure, 1973

(hereinafter referred to as ‘the Code’) which

enjoin    the     Court        to    release       offenders         on

probation of good conduct if the offence is not

punishable with death or with imprisonment for

life.     In the instant case, though the charges

were     framed       for     offences      punishable            under

Sections 307, 325 and 323 read with Sections

147, 148, 149 and 34, IPC, the trial Court

acquitted       all     the     accused      for      an     offence

punishable under Section 307, IPC.                         The said

acquittal is not challenged and it has attained

finality.         The       conviction      was    recorded         for

offences punishable under Sections 325 and 323

read    with     Section       34,    IPC    and    not      for     an

offence punishable with imprisonment for life.

It was, therefore, obligatory on the Court to

consider grant of probation. Non-consideration

thereof    has    vitiated          the   order    of      sentence.

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Finally,      it   was    submitted          that       after    the

incident, the accused had remained in jail for

quite some time and even after the order passed

by the High Court in December, 2006, neither

exemption     from     surrendering          was    granted      nor

they were enlarged on bail and they are in jail

since then. Therefore, even if this Court finds

that the order of conviction and sentence is in

consonance with law, on the facts and in the

circumstances of the case, the period which the

appellants have already undergone in jail may

be treated as sufficient.

11.        The learned counsel for the State, on

the other hand, supported the order passed by

the   trial    Court     and     confirmed         by    the    High

Court.     It was submitted that on the basis of

evidence      adduced      by     the        prosecution         and

appreciating       the     depositions             on    oath     of

prosecution witnesses, both the courts below

have recorded a finding that the accused had

committed      the       offences       in     question          and

convicted      them.      This    Court       does       not     re-

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appreciate the evidence under Article 136 of

the    Constitution     and    as    such,        the    appeal

deserves to be dismissed. As to non-compliance

with Sections 360 and 361 of the Code, it was

submitted by the counsel that looking to the

facts of the case and the manner in which the

offences have been committed, no benefit of the

said    provisions     could    be    extended          to   the

accused. It was, therefore, submitted that the

appeal deserves to be dismissed.

12.       The learned counsel for the appellants

invited our attention to the deposition of PW4-

Dr. A.D. Chinchurkar. He stated that on October

1, 1997 at 5.30 p.m., Ramesh Singh, son of

Madansingh     Meena    was    brought       by     constable

Rambharose for his medical examination. Ramesh

Singh was unconscious. Whole body with clothes

had    been   soiled   with    wet   soil.    Breathe        and

heartbeat was continuing. He found following

three injuries from the person of Ramesh Singh:

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1.     Lacerated wound on scalp of head 6x1 cm x

      1   cm     scalp       thickness     deep        in    middle     of

      scalp on left side.

2.     One lacerated wound in 1x1x0.5 cm area on

      backside of head.

3.     One lacerated broken wound 2x1x1.5 cm on

      left hand with apparent fracture of bone.

13.             According       to   this       witness,           all   the

three      injuries       appeared         to    have     been      caused

with       ‘hard       and     blunt’      weapons.           In    cross-

examination,            the    witness      stated       that       Ramesh

Singh had sustained ‘only three injuries’. He

further admitted that the injuries could not

possibly be sustained with any sharp weapon.

14.             Now,    reading      the    evidence          of    victim

Ramesh Singh, injured and the star witness of

the prosecution, it is clear that according to

him,       he     was     ‘attacked’            by     Accused       No.1-

Tulsiram, Accused No.2-Bhagwan Singh, Accused

No.3-Roop Singh and Accused No.4-Daku. Bhagwan

Singh had administered farsi blow on his left

hand.       Tulsiram          had    given           luhagi    blow       on

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forehead and Daku and Roop Singh gave lathi

blows. He stated that in his police statement,

besides    names    of    four    accused,    he    had    not

mentioned any other name. In view of the above

statement, the prosecution requested the Court

to declare the witness ‘hostile’ and permission

was sought to put questions which could be put

in    cross-examination.          Such     permission      was

granted. It was then brought on record that in

the police statement, the witness had stated

that over and above the accused persons, one

Harsingh Meena, Ramcharan Meena and Harbhajan

Meena were also present with lathis and they

had also inflicted lathi blows on the witness

and had thrown him in the ditch. The witness

though admitted in the cross-examination that

he could not say exact number of injuries he

had   sustained     but    there    were    more    than    28

injuries    on     his    whole    body.    Out    of   those

injuries, 5-6 injuries were of grievous nature

and remaining injuries were simple.

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15.          From the deposition of other injured

witness Raghuvir Singh also, it appears that

the prosecution has not come forward with all

facts. In his evidence on oath, Raghuvir Singh

stated that Tulsiram had given wood blow to him

and then stated that Tulsiram had given luhagi

blow to Ramesh and lathi blow to the witness.

The witness then ran away from there out of

fear. According to the witness, after running

away from the place of occurrence, he went to

nursery situated near Khatkiya and then reached

Kumbhraj       where    he    lodged    report    at   Police

Station, Kumbhraj. The witness asserted that

the police had written his report and obtained

his signature on the report. No such report,

however, has been produced by the prosecution

at the trial.

16.          PW9-Hari        Singh,    in   his    statement

admitted that he had seen the quarrel while

returning from Fadalpur to Kumbhraj. According

to    him,   the   accused      persons     present    in   the

Court    had    beaten       Ramesh    Singh.    The   witness

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intervened      in    the    fight   and    requested    the

accused persons not to beat Ramesh Singh. He,

however, stated that except the witness, nobody

intervened in the fight. Later on, Ram Singh

came there and the witness and Ram Singh pulled

Ramesh out of the ditch. He further stated that

besides the three accused, nobody had beaten

Ramesh.

17.       The        Addl.    Public       Prosecutor,     in

respect of this witness (Hari Singh) also, made

prayer to the Court to declare him ‘hostile’

and to permit to put questions which could be

put in cross-examination and the permission was

granted. The witness was then confronted with

his   police    statement      wherein     he   stated   that

Tulsiram Meena, Bhagwan Singh Meena, Roop Singh

Meena and Daku Meena were beating Ramesh Singh

with lathi, luhagi and farsi with intention to

kill him. Though the witness denied it and went

to the extent that the police did not record

his statement, the contradiction had been duly

established. He went to the extent that police

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had   written    wrong      statement.        He   denied       that

accused   Roop      Singh    Meena      had    beaten      Ramesh

Singh in his presence and that it was wrong

that in collusion with accused Roop Singh, he

was not giving correct evidence.

18.       From       the        above         evidence          and

discussion, it appears that the prosecution has

not   come   with    clean      hands     and      the    genesis

becomes doubtful. The prosecution-witnesses and

in particular the star witness injured, PW5-

Ramesh Singh himself was declared ‘hostile’ by

the prosecution as it was clear that though

initially his case was that over and above four

persons who were before the Court, three other

persons      were        very     much        present,           but

subsequently,       he   stated      that     they       were   not

present. Not only that three other persons were

present at the scene of offence, but they were

armed with weapons, their common object was to

beat the witness and in fact they attacked the

witness with lathis. The initial case, however,

was   subsequently          totally      changed         and    the

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witness had gone to the extent that over and

above four accused before the Court, nobody was

present and he was not attacked and beaten by

anyone else.

19.        According to the said witness, he had

sustained several injuries (28 injuries) but

according to the medical evidence, there were

only three injuries on the person of Ramesh

Singh. Further, according to the witness, the

injuries    were     caused   by   farsi,     luhangi    and

sticks.    Medical    opinion,     on   the   other   hand,

goes to show that injuries were possible by

‘hard’ and ‘blunt’ substance and not by any

‘sharp’ weapon. All the three injuries referred

to hereinabove also clearly prove it. They were

all lacerated wounds and no incise wound was

found on the person of Ramesh Singh.

20.        PW6-Raghuveer      Singh’s     evidence      also

was shaky. He was not sure as to with which

weapon, he was beaten. Moreover, according to

him, he lodged a report at the police station

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on    which   his    signature   was    taken,      but    that

report is not forthcoming.

21.        PW9-Hari Singh, who had intervened in

the scuffle, was also declared ‘hostile’. His

evidence      also   did   not   go    to    show   that    the

incident had happened in the manner deposed by

the prosecution.

22.        Considering facts and circumstances in

their      totality,       evidence         of   prosecution

witnesses, particularly of the witnesses who

were     ‘attacked’,       and    had        been   declared

‘hostile’ (partly or fully) coupled with the

medical evidence, so far as injuries sustained

by      PW5-Ramesh      Singh     is        concerned       and

withholding of report said to have been lodged

by PW6-Raghuveer Singh, in our opinion, this is

not a case to reach a finding that the accused

had committed the offences with which they were

charged. If it is so, obviously the benefit of

doubt should be given to them. We accordingly

hold that it cannot be said ‘beyond reasonable

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doubt’   that         the          accused     had           committed                         the

offences with which they were charged.

23.      For          the          foregoing        reasons,                      in           our

opinion, the appeal deserves to be allowed and

is accordingly allowed. The order of conviction

and sentence recorded by the trial Court and

confirmed by the High Court is set aside.

24.      In view of acquittal recorded by us,

the question of consideration of provisions of

Sections 360 and 361 of the Code and grant of

benefit to the accused does not arise and we

express no opinion thereon.

25.      The appeal is accordingly allowed. The

conviction and sentence of the appellants is

set aside.

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

NEW DELHI,                               ................................................... ......J. MAY 13, 2008.                            (D.K. JAIN)

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