TaxTMI 
TaxTMI 
2011 (7) TMI 1379
X X X X Extracts X X X X
X X X X Extracts X X X X
....onment for life along with fine of Rs. 5,000/- each and in default of payment of fine to suffer six months' simple imprisonment. (b) Under Section 148 IPC, all the three accused were awarded one year's rigorous imprisonment. (c) Under Section 324/149 IPC, all the accused were awarded one year's rigorous imprisonment each and (d) Lastly, under Section 449 IPC, they were awarded three years' of rigorous imprisonment each along with fine of Rs. 1,000/- each, in default of payment of fine, to undergo simple imprisonment for three months. 2. Aggrieved by the judgment of the trial court, all the three accused preferred an appeal before the High Court, raising various issues in relation to the appreciation of evidence, false implications, contradiction in statements of witnesses and that no evidence had been led against them. On these premises, they prayed for setting aside of the judgment of the trial court and claimed acquittal. The High Court vide its judgment dated 15th March, 2005, acquitted all the accused and passed the following order: 9. That takes us to the evidence of the eye witnesses examined at the trial. Coming to the testimony of Mahesh (PW-4) we notic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in convicting and sentencing the Appellants. 10. For these reasons we allow the instant appeals and set aside the judgment dated September 7, 1999 of the learned Special Judge Shri G.C. Sharma, Communal Riots and Man Singh Murder Case, Jaipur in Sessions Case No. 1/1997. We acquit the Appellants Abdul Zabbar, Afzal and Abdul Mannan of the charges under Sections 148, 302/149, 324/149 and 449 IPC. The Appellants Abdul is on bail, he need not surrender and his bail bonds stand discharged. The Appellants Abdul Zabbar and Afzal, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. 3. State of Rajasthan aggrieved by the said judgment of acquittal, preferred the present appeal before this Court. 4. Let us briefly examine the case of the prosecution. As per the submission of the State, this Court should set aside the judgment of acquittal and punish the accused in accordance with law. 5. Satyanarain Baheti made a report to the S.H.O., Police Station, Malpura in front of the hospital at Malpura on 9th December, 1992 to the effect that, at about 11.15 a.m. that morning the complainant had been standing outside his house in Bahetiyon-ke-Mo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hri Rajendra Ojha. The incriminating evidence against the accused was put to the accused while recording their statement under Section 313 of the Code of Criminal Procedure The plea taken by the accused was that these witnesses are deposing falsely, and have implicated them in commission of the crime at the instance of the police. Abdul Mannan took the plea of false implication, and claimed that he was in a school at a distance of 18 km away from the Malpura. Accused Afzal also took the plea of false implication, and stated that there were two or three persons by the name of Afzal Lakhara and he had not been present at the place of occurrence. Similar stand was taken by Zabbar. 7. The learned trial court discussed the prosecution evidence as well as the defence at great length. While holding the statements of above eye-witnesses trustworthy and finding the witnesses led by the defence as not credible, the court held as under: In the opinion of the court, the evidence of witnesses Ramnarain and Nathu Lal does not inspire confidence. When this Court could not ignore the evidence of witnesses - Mahesh, Kanhaiyalal and Satyanarain in any manner, which is the reliable evidence of eye-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vidence adduced in the case, then the one favourable to the accused, may be adopted by the Court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the Court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that accused is guilty then the Court can interfere even with the judgment of acquittal. The judgment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f Bihar, State of Punjab v. Karnail Singh, State of Punjab v. Phola Singh, Suchand Pal v. Phani Pal and Sachchey Lal Tiwari v. State of U.P. 10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference. 11. In a very recent judgment, a Bench of this Court in Criminal Appeal No. 1098 of 2006 titled State of Kerala and Anr. v. C.P. Rao decided on 16.05.2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three Judge Bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan, AIR 1961 SC 715, the Court held as under: 14. In coming to its conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of inter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed principles, we revert to the facts of the present case. As already noticed, three eye witnesses PWs. 4, 5 and 7 were found to be truthful and reliable witnesses by the trial court whereas those very witnesses were held to be untrustworthy witnesses by the High Court. We shall shortly proceed to discuss the statements of these three witnesses in some detail, as it is necessary for us to practically re-appreciate the entire evidence in view of the serious conflict, on findings of fact, in the two judgments under consideration in the present appeal. One must notice another very significant error in the judgment of the High Court. Though the High Court has made a reference to the injuries inflicted upon the body of the deceased as detailed by Dr. Chandra Prakash (PW2) in his report, there is no discussion of his statement, in regard to nature of injuries inflicted and the weapon used for inflicting such injuries. There is also no discussion in the judgment of the High Court on the comparative evaluation of medical evidence, ocular evidence and the documentary evidence produced by the prosecution on record. These are certainly material evidence which have either been completely ignor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Metter (sic) was coming out this injury was on the center of the head from where the blood was oozing. Both the edges of the wound were sharp. 2. Lacerated wound in size of 3 inch x 1/4 inch deep up to the bones on the center with depressed fracture. And obtuse injury all around right eyes (sic). 3. The blood was coming out from the right ear. In my opinion the death of Govind was caused due to Neutrogena (sic) shock which was caused by injury No. 1 and due to hemorrhage which was caused by injury No. 2. All the 3 injuries were caused before the death and in general nature were sufficient to cause the death of Govind. The death of Govind was caused within 2 to 3 hours from (sic) conducting the post mortem I have prepared the post mortem report which is exhibit and is verified. It bears my signature at A to B and I have entered the cause of death at C to D. 14. Mahesh (PW 4) in his statement in Court had stated that he saw a mob of persons belonging to the Muslim community approaching when he was standing outside his house. Some of them held swords in their hands, some of them lathies and some held pharsi and once they reached the house of Govind Narain, they forcibly opened the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ho is the most material witness of the prosecution, had made the report (Ex.P7) to PW6. He is the injured witness. He stated that a mob of 50-60 persons had come towards that area shouting, "Maro! Maro!". He went inside his house and closed the door but in a short while stones were thrown at the house. Some members of the mob started pushing the door and eventually broke the door and PW7 ran away for safety. Afzal Mota Lakhara, Mahboob, Hanif tractorwala, Jabbar Ahmad Tractorwala came inside and some other persons who he could not identify started assaulting Govind Narain and Hari Narain with lathi and pharsi which he witnessed from his room. According to PW7, the injuries were caused on the head. He came out of his room and tried to save them, and in the process, he also suffered injuries. In the meantime, the police siren blew and upon hearing the same, these persons ran away. The witness correctly identified Zabbar and Afzal in Court and stated that these persons had caused injuries to the deceased. This witness referred to the place of occurrence, preparation of site plan and medical report by the doctor, he admitted his signature on all these documents including Exh. P-8. It a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1999 when he made a statement at variance with his earlier statement in Court as well as his statement recorded under Section 161 of the Code of Criminal Procedure Another fact which the Court cannot lose sight of is that Exh. P2 was not a document written by the police but was written in his own hand and duly signed by him which he admitted even in his statement in Court. 18. Satyanarain (PW 7) has also made statements which fully aid the case of the prosecution and his statement recorded on the adjourned date before the trial court i.e. 18th March, 1999 which is at variance cannot be treated as gospel truth. In fact the bare reading of the statement clearly shows this fact. Even if we exclude the statement of PW7 from consideration, then identity of the accused is still fully established by the statements of PW3, PW4, PW5 and PW6. There is no reason, whatsoever advanced, as to why PW4 and PW5 (neighbours of the deceased) who are otherwise independent witnesses, and the doctor would involve the accused falsely. There is no animosity between the parties, and in fact according to these witnesses, they knew the accused particularly Abdul Zabbar, Afzal and Mannan for quite some time.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....High Court, this Court held as under: 15 ... Once the prosecution had brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot at that dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution, and having failed to do so, the trial court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable. The trial court did not find evidence of Bhugan (DW.1), examined by Mohd. Iqram, one of the Respondents, worth acceptance. 16. The High Court did not even make any reference to him. It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e. the conclusions of the courts below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, lea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e common intention could even develop at the spur of the moment when the three accused, as duly identified, were actively inflicting injuries on the body of the deceased. They, therefore, not only caused injuries to the vital body parts of the deceased, including head injury, but kept on inflicting injuries even after the deceased had fallen to the ground. The efforts of Satyanarain to save them were in vain and he himself suffered certain injuries. Thus, in the present case, it has been established that more than five persons constituted an unlawful assembly and in furtherance to their common object and intent, assaulted and caused injuries to vital parts of the bodies of the deceased, ultimately resulting in their death. We, therefore, have no hesitation in holding that there is no merit in this contention of the accused and the trial Court applied the law correctly. 21. Section 149 consists of two parts; the first deals with the commission of an offence by any member of an unlawful assembly in prosecution of the common object of that assembly; the second part deals with commission of an offence by any member of an unlawful assembly in a situation where other members of that ass....