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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1418 of 2014

Soyebbhai Yusufbhai Bharania & Ors. ...Appellant(s)

:VERSUS:

State of Gujarat ...Respondent(s)

J U D G M E N T

Pinaki Chandra Ghose, J.

1.This appeal is directed against the judgment and order

dated 29.11.2013 passed by the High Court of Gujarat at

Ahmedabad in Criminal Appeal No.1747 of 2010 with Criminal

Appeal Nos.2223 & 2224 of 2010, whereby the High Court

dismissed the appeal of the appellants herein and confirmed their

conviction and sentence for various offences punishable under

Sections 302, 147, 148 read with Section 149 of the Indian Penal

Code, 1860 (hereinafter referred to as “IPC”).

2.The brief facts necessary to dispose of these appeals are that

on 04.07.2009, at about 3:00 a.m., while one Rameshbhai

Prajapati (since deceased), who was the Taluka President of

Shivsena, his wife Bhavnaben and their children were sleeping,

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the accused persons assaulted the deceased in sleeping condition

with a large knife because even after protest of the accused

persons, younger brother of the deceased got married with a

woman hailing from the community of the accused. Rameshbhai

died on the spot and the whole incident was seen by his wife

Bhavnaben (PW1) as she woke up. The accused after killing the

deceased escaped from there.

3.The law was set into motion upon lodging of FIR by PW1

(complainant) on 04.07.2009 at 06:15 a.m., at Vagdod Police

Station. The FIR was registered as C.R.No.69 of 2009. The

post-mortem of the deceased was performed by Dr. Mayankbhai

Vrajlal Sheth (PW2). As per the deposition of PW-2 with regard to

post-mortem of the deceased, marked Exh. 25, there were

injuries on artery, veins and windpipe due to injury caused on

the throat by large knife.

4.Upon completion of investigation, charge-sheet under

Sections 147, 148, 149, 302 and 120-B of the IPC was filed on

29.09.2009 in the Court of Judicial Magistrate, First Class,

Patan, which was registered vide Criminal case No.4108 of 2009.

However, the case being exclusively triable by the Court of

Sessions, Surat, the same was committed to the Sessions Court

under Section 209 of the Cr.P.C. Accordingly, a Sessions Case

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No.72 of 2009 was registered against the accused. Thereafter,

upon the case being transferred to the Court of Additional

Sessions Judge, (FTC-2), Patan, charges were framed against the

accused persons vide Exh.8, for the offences punishable under

Sections 147, 148, 149, 302 and 120-B of IPC. After the accused

persons denied the said charges in their statements vide Exhibit

Nos.9 to 13, the evidence of prosecution witnesses was recorded.

5.Upon recording the evidence of the prosecution witnesses

and after considering all the relevant facts, the Trial Court vide

its judgment and order dated 16.08.2010 convicted accused

Nos.1 to 4 for the offences punishable under Sections 302, 147

and 148 read with 149 of IPC and sentenced them to

imprisonment for life and to pay a fine of Rs. 2,000/- and, in case

of default to pay fine, to undergo further simple imprisonment for

six months. However, the Trial Court acquitted accused No.5 -

Umarbhai for the offences punishable under Sections 147, 148,

149, 302 and 120-B of the IPC, and acquitted rest of the accused

for the offences punishable under Section 120-B of the IPC. It

was further ordered that if the accused Nos.1 to 4 pay the

amount of fine, then an amount of Rs.8,000/- be paid as

compensation to the complainant on behalf of all the dependants.

Being aggrieved by the aforesaid judgment and order of the Trial

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Court, the accused persons filed an appeal before the High Court.

While accused preferred Criminal Appeal No.1747 of 2010

against order of their conviction and sentence, Criminal Appeal

Nos.2223 & 2224 of 2010 were preferred by the State for

enhancement of the sentence and against the acquittal of

accused No.5, respectively.

6.The High Court vide its judgment and order dated

29.11.2013, dismissed the aforesaid appeals filed by the State.

The High Court partly allowed Criminal Appeal No.1747 of 2010

filed by the accused persons and thereby quashed and set-aside

the judgment and order of conviction and sentence passed by the

Trial Court qua accused No.4 and he was acquitted. However, the

judgment and order of conviction and sentence passed by the

Trial Court qua accused Nos.1, 2 & 3 was confirmed. Aggrieved

by the aforesaid judgment and order passed by the High Court,

the accused persons have sought to challenge the same before us

in this appeal.

7.We have heard the learned counsel appearing for the

accused appellants as also the learned counsel appearing for the

respondent and have perused the oral and documentary evidence

on record.

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8.A two-Judge Bench of this Court has formulated the

principles for the exercise of jurisdiction in a petition under

Article 136 of the Constitution of India in Ganga Kumar

Srivastava Vs. State of Bihar, (2005) 6 SCC 211, in the

following terms:

i.“The powers of this Court under Article 136 of the

Constitution are very wide but in criminal appeals

this Court does not interfere with the concurrent

findings of the fact save in exceptional

circumstances.

ii.It is open to this Court to interfere with the

findings of fact given by the High Court, if the

High Court has acted perversely or otherwise

improperly.

iii.It is open to this Court to invoke the power under

Article 136 only in very exceptional circumstances

as and when a question of law of general public

importance arises or a decision shocks the

conscience of the Court.

iv.When the evidence adduced by the prosecution

fell short of the test of reliability and acceptability

and as such it is highly unsafe to act upon it.

v.Where the appreciation of evidence and finding is

vitiated by any error of law of procedure or found

contrary to the principles of natural justice, errors

of record and misreading of the evidence, or where

the conclusions of the High Court are manifestly

perverse and unsupportable from the evidence on

record.”

9.Keeping in mind the above position of law as enunciated

and settled by a series of decisions of this Court, we shall now

examine the evidence adduced by the parties and the materials

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on record and see that in view of the nature of offence alleged to

have been committed by the appellants, whether the concurrent

findings of fact call for interference in the facts and

circumstances of the case.

10.In the present case, there have been concurrent findings as

to the guilt of the accused persons by both the Courts below. In

upholding the judgment and order of conviction of the Trial

Court, the High Court had primarily relied upon the evidence of

eye-witnesses, namely, PW1 who was found to be trustworthy.

The weapon, being knife, was recovered and Panchnama was also

proved. The High Court held that the accused were sharing the

common object of causing injuries to the deceased.

11.Further, looking to the evidence given by PW5, one

Dahyabhai Dalabhai Patel and PW6, Kurashibhai Jivabhai Desai,

recovery of the weapon, being large knife with plastic handle, was

corroborated. However it is also true that PW5 was declared

hostile who had stated that appellant No.1 had taken out the

large knife from the dump heap. It was further stated that no

blood stains were found on the knife.

12.The High Court relied upon the judgment of this Court in

Mookkiah & Anr. Vs. State, represented by Inspector of

Police, Tamil Nadu, (2013) 2 SCC 89, in support of the

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aforesaid conclusion, wherein this Court held:

“9. It is not in dispute that the trial court, on

appreciation of oral and documentary evidence led in

by the prosecution and defence, acquitted the accused

in respect of the charges levelled against them. On

appeal by the State, the High Court, by the impugned

order, reversed the said decision and convicted the

accused under Section 302 read with Section 34 IPC

and awarded RI for life. Since the counsel for the

appellants very much emphasized that the High Court

has exceeded its jurisdiction in upsetting the order of

acquittal into conviction, let us analyse the scope and

power of the High Court in an appeal filed against the

order of acquittal.

10. This Court in a series of decisions has repeatedly

laid down that

‘3…as the first appellate court the High Court,

even while dealing with an appeal against acquittal,

was also entitled, and obliged as well, to scan through

and if need be reappreciate the entire evidence, though

while choosing to interfere only the court should find

an absolute assurance of the guilt on the basis of the

evidence on record and not merely because the High

Court could take one more possible or a different view

only. Except the above, where the matter of the extent

and depth of consideration of the appeal is concerned,

no distinctions or differences in approach are envisaged

in dealing with an appeal as such merely because one

was against conviction or the other against an

acquittal.

[Vide State of Rajasthan Vs. Sohan Lal & Ors. ,

(2004) 5 SCC 573]”.

Thus, looking to the deposition of the prosecution witnesses, the

offence of murder of the Rameshbhai Prajapati has been proved

beyond all reasonable doubt against the accused.

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13.Mr. Huzefa Ahmadi, learned senior counsel appearing on

behalf of the appellants contended that both the Courts below

have committed an error in convicting the appellants for the

offence punishable under Section 302 IPC along with two other

accused. When the High Court had acquitted accused No.4 and

confirmed the acquittal of accused No.5, no conviction could have

been recorded of the remaining three accused for an offence

punishable under Section 302 IPC.

14.Learned senior counsel further submitted that the

proposition submitted by the State are incorrect in view of the

fact that Section 149 is not attracted in the absence of the overt

act being attributed to each accused, since there is no finding to

the effect that five or more persons were involved in the act. In

support of this submission, he relied on Manmeet Singh alias

Goldie Vs. State of Punjab, (2015) 7 SCC 167, wherein this

Court observed as under:-

“With reference to the offence of dacoity under Section

391 IPC in particular and the import of Section 149

IPC, this Court in Raj Kumar vs. State of Uttaranchal

(2008) 11 SCC 709 had propounded that in the

absence of a finding about the involvement of five or

more persons, an accused cannot be convicted for such

an offence. Their Lordships, however, clarified that in a

given case it could happen that there might be five or

more persons and the factum of their presence either is

not disputed or is clearly established, but the court

may not be able to record a finding as to their identity

resulting in their acquittal as a result thereof. It was

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held that in such a case, conviction of less than five

persons or even one can stand, but in the absence of a

finding about the presence or participation of five or

more persons, less than five persons cannot be

convicted for an offence of dacoity.”

PW1 in her deposition vide Exhibit No.20 had identified the

accused. However, she had not attributed any specific act to any

of the accused.

15.It has been contented by the learned senior counsel for the

appellants that the evidence of PW1 is vague and not reliable.

About motive, she vaguely states that the deceased was Taluka

President of the Shivsena and had a precarious relationship with

all local Memons. Five accused had also been wrongly identified.

16.It is further submitted that there was no need to conduct

test identification parade (TIP) considering the fact that

conviction of all accused is based on the sole testimony of the

widow (who at best had a fleeting glimpse of the accused under

cover of darkness) since life of the appellants hang in a delicate

balance. He thus relied upon Dana Yadav alias Dahu & Ors.

Vs. State of Bihar, (2002) 7 SCC 295; Kanan & Ors. Vs. State

of Kerala, (1979) 3 SCC 319 and Mulla & Anr. Vs. State of

Uttar Pradesh, (2010) 3 SCC 508.

17.On the other hand, Mr. D. N. Ray, learned counsel

appearing on behalf of the respondent supported the order of

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conviction and sentence passed by both the Courts below. He

submitted that it is true that accused No.5 and accused No.4

were acquitted by the Trial Court and High Court, respectively,

from all the offences charged against them for want of evidence.

It is equally true that out of five accused, two accused were

acquitted by the Courts below by giving benefit of doubt and

hence there were less than five accused before the High Court.

He has specifically submitted that no point of perversity has been

taken by the appellants or pleaded in their appeals and instead,

asked for re-appreciation of the evidence. According to him,

without showing any perversity committed by the Trial Court as

well as by the High Court, there can be no ground to interfere

with the findings of the High Court. He submitted that this

appeal should be dismissed on this ground.

18.He further pointed out that the prosecution case is based on

an unshakeable eye-witnesses’ account. Therefore, motive

becomes immaterial and question of proving the motive by the

prosecution does not arise, since it is not a case based on

circumstantial evidence. (See Arjun Malik & Ors. Vs. State of

Bihar, 1994 Supp. (2) SCC 372, Para 10). He also drew our

attention to a decision of this Court in Kuriya & Anr. Vs. State

of Rajasthan, (2012) 10 SCC 433, wherein it was held that

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“Once the principal eye-witness(es) have proved their credentials

on the whole, it can be said to be believable that the prosecution

can rest even on the testimony of a single eyewitness.”

19.Learned counsel appearing on behalf of the respondent

further contended that many questions were tried to be raised in

respect of the deposition/testimony of PW1, but from the

evidence of PW1 - widow of the deceased, it would appear that

there is no improvement regarding visibility of the crime as

sought to be made out by the defence. So far the recovery of the

knife is in question, although PW5 has turned hostile, even

though on cross-examination, he has categorically stated that the

recovery of a large sharp knife was made at the instance of

accused No.1. He further pointed out that the deceased was

running a Shivsena magazine in the heart of a Memon Village.

Except a handful of Hindus, the entire village comprised Muslims

who were on inimical terms. It has come on record that the

relationship of the deceased with the local Muslim villagers was

so bad that in the past the police had to be called and the

deceased had to be given police protection and the police had to

resort to firing to save the deceased. He also took us through the

evidence of PW3 and submitted that PW3 had married a Muslim

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lady from the same village, which aggravated the enmity between

the deceased and the accused persons.

20.He further pointed out that although it is not seriously

urged that since five persons could not be identified and/or only

three has been convicted, therefore, Section 149 IPC cannot be

attributed to convict anybody other than the accused No.1. Such

submission cannot be accepted by the Court since PW1 clearly

deposed in her testimony that she had seen five persons fatally

assaulting her husband. She has categorically named five

persons assaulting her husband with big knives. Therefore, the

fact of the five persons, who were present cannot be doubted.

Doubt is with regard to the exact identification of one or two

accused.

21.We have meticulously perused the oral evidence of PW1 who

is the only eye witness in the present case and that of PW3 who

was the fort to know about the incident, as PW1 had called her. It

was admitted that day before the incident of murder one

Nageshbhai had a private conversation with the deceased outside

their house and thereafter deceased was feeling very much grief

and his face was looking pale and during evening hours many

phone calls were received on telephone. No independent act or

overt act was attributed to each accused, albeit it was stated that

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she had seen the clothes of the assaulter stained with her

husband’s blood during occurrence.

22.In our view, albeit the murder is proved but the ingredients

of the unlawful assembly remained elusive, as pre-requisite

condition for an unlawful assembly i.e., minimum five persons,

has not been met. Nevertheless, the common object has been

proved by the prosecution.

23.Moreover, when the appeal was preferred before the High

Court, acquittal of the accused No.5 was not rebutted and further

finding of the High Court whereby accused No.4 has also been

acquitted for reasonable doubts, leaves a well-set doubt that

prosecution has not proved its case beyond reasonable doubt. We

are constrained to have this opinion that trial court was vitiated

by some manifest illegality or that the decision is perverse.

PW9/Circle Officer has also stated that PW2, brother of deceased,

influenced him into adding of cots, whereas they were not

actually there. No zero watt bulb is shown in the Panchnama

(site plan) as well, which efficaciously gives rise to doubt of the

role attributed to the appellants.

24.Finally, it has been argued by the learned senior counsel for

the appellants that a reference was also made to a previous

incident of 2001, where deceased had to be given police

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protection during some altercation with people of the other

community. However, the accused in that case were admittedly

different and there is nothing to connect the appellants in the

present case, except the fact that they belong to the same

community.

25.On the other hand, it has been submitted by the learned

counsel for the State that the incident actually did happen due to

the fact that the brother of the deceased had got married with a

girl of the community of the appellants. Had this marriage was

not solemnized or as per present situation not registered in

Court, then the deceased might not have been murdered.

26.After considering the present facts and circumstances, we

are of the considered opinion that for furtherance of the common

intention namely to do away the deceased, appellants had

entered into the house of the deceased and were seen by PW1.

They then started beating the deceased and after causing injuries

on his neck with a sharp knife, they ran away. The homicidal

death was proved beyond all reasonable doubts. The High court

has thus rightly relied on the judgment of this Court in the case

of Pulukuru Kottaya & Ors. Vs. Emperor, reported in AIR (34)

1947 PC 67, wherein it was held that “The improper admission or

rejection of evidence shall not be ground of itself for a new trial or

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reversal of any decision in any case, if it shall appear to the Court

before which such objection is raised that, independently of the

evidence objected to and admitted, there was sufficient evidence to

justify the decision, or that, if the rejected evidence had been

received, it ought not to have varied the decision”.

27.Above all, the fact that accused had been identified and

recovery made from accused No.1 has left no room for doubt that

all the appellants were involved in the commission of the murder

with common object to do away the deceased with sharp knife.

28.Thus, in the light of the above discussion, we are of the view

that the present appeal is devoid of merits and we, therefore, do

not find any reason to interfere with the order of the High Court.

Hence, the appeal is dismissed.

. . . . . . . . . . . . . . . . . . . . .J

(Pinaki Chandra Ghose)

. . . . . . . . . . . . . . . . . . . . J

(Ashok Bhushan)

New Delhi;

March 23, 2017.

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ITEM NO.1-A COURT NO.6 SECTION IIB

(For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1418/2014

SOYEBBHAI YUSUFBHAI BHARANIA & ORS. Appellant(s)

VERSUS

STATE OF GUJARAT Respondent(s)

Date : 23/03/2017 This appeal was called on for pronouncement of

Judgment today.

For Appellant(s)

Mr. Kaustubh Anshuraj, AOR

For Respondent(s)

Ms. Hemantika Wahi, AOR

–-

Hon'ble Mr. Justice Pinkai Chandra Ghose pronounced the

Reportable Judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Ashok Bhushan.

The Criminal Appeal is dismissed in terms of the signed

Reportable Judgment.

(VISHAL ANAND) (SUMAN JAIN)

COURT MASTER COURT MASTER

(Signed Reportable Judgment is placed on the file)

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REVISED

ITEM NO.1-A COURT NO.6 SECTION IIB

(For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1418/2014

SOYEBBHAI YUSUFBHAI BHARANIA & ORS. Appellant(s)

VERSUS

STATE OF GUJARAT Respondent(s)

Date : 23/03/2017 This appeal was called on for pronouncement of

Judgment today.

For Appellant(s)

Mr. Kaustubh Anshuraj, AOR

For Respondent(s)

Ms. Hemantika Wahi, AOR

–-

Hon'ble Mr. Justice Pinaki Chandra Ghose pronounced the

Reportable Judgment of the Bench comprising His Lordship and

Hon'ble Mr. Justice Ashok Bhushan.

The Criminal Appeal is dismissed in terms of the signed

Reportable Judgment.

(VISHAL ANAND) (SUMAN JAIN)

COURT MASTER COURT MASTER

(Signed Reportable Judgment is placed on the file)