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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