STATE OF RAJASTHAN TH. SECY.HOME DEPT. versus ABDUL MANNAN & ANR.

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 Kera/a 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 STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1117 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] case of Sanwat Singh & 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 interference by this Court in order of acquittal has been very succinctly laid down by a Three-Judge bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan [1961 (3) SCR 120]. At page 129, Justice Subba Rao (as His Lordship then was) culled out the principles as follows: The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case [1934 LR. 61 I.A. 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and {iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."

12. Reference can also be usefully made to the judgment of this Court in the'case of Suman Sood v. State of Rajasthan, (2011] 7 S.C.R. A ((2007) 5 SCC 634] where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka, ((2007) 4 SCC 415]. Emphasizing that expressions like 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong B circumstances', 'distorted conclusions', 'glaring mistakes', etc are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the court stated that such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate court to interfere c with the acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.

13. In light of the above stated principles, we revert to the D 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 E 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 F 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 G 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 ignored, or not appropriately appreciated by the High Court. This renders the H judgment of the High Court perverse, and provides strong …… …. STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1119 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] reasons for this Court to interfere with the judgment of acquittal. In our considered view, the order of acquittal can hardly be sustained where it is based just on some contradiction in the statements of the while completely.ignoring the entire case of the prosecution particularly when the prosecution has been able to prove its case beyond reasonable doubt. Dr. Chandra Prakash (PW2), who on 9th December, 1992 was posted as SMO at medical centre, Malpura had conducted the postmortem on the body of both the deceased persons.

The injuries on the body of the deceased Hari Narain, aged 70 years, were recorded by this witness in his report (Ex.P4) which c reads as under: "I. Lacerated wound in size 3 inch x 2/10 inch till penetrating up to the bones on the left side of the head which was up to parietal region. This injury was having depressed fracture. The blood was oozing out from the wound. II. Lacerated wound in the size 3.5 inch x 2/10 inch penetrating up to the bones. In this injury also there was depressed fracture on the right parietal region of the (sic). The blood was oozing out from this injury also. And the brain matter was coming out. Ill. Incised wound in the size of 3 inch x 2/10 into% inch on the upper arm behind the shoulder and the blood was oozing out from it. On the dead body aforesaid external injuries were found. In my opinion the death of Hari Narayan was cause (sic) due to Neutrogena (sic) shock that is injury of the brain caused by injury Nos.1 and 2. All the aforesaid injuries were of before death. The injury Nos. 1 and 2 on the head of Hari Narayan were in general nature sufficient to cause the death. The death of Hari · Narayan was caused within 2 to 3 hours of (sic) the postmortem. I prepared the postmortem report which i.s c exhibit P-4 which is in my hand writing and it is signed. It bears my signature from A to B and I have entered the cause of death at C to D. On the same date in the day time at 1.30 P.M. I conducted the post mortem on the dead body of Govind Mahajan son of Lachh Raj age 72 years, resident of Malpura and found following injuries on the dead body which were caused before death: 1. A wound of cut in size 4 inch x 2/10 inch x penetrating up to bone and even up to the brain. And the brain 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 Yc 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 H house. Some of them held swords in their hands, some of them STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1121 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] lathies and some held pharsi and once they reached the house of Govind Narain, they forcibly opened the door. He went onto the roof of Premchand Mehru's house, from where he could see that some persons were pushing the door of Gopal Narain's house. He identified the persons who jumped inside the house, as Mahboob, Haneef and Abdul Zabbar. Even in the Court, he rightly identified one person Abdul Zabbar. This witness stated the he knew Zabbar even prior to the occurrence. He had also taken Kanhaiya Lal, who was injured, to the hospital. He had seen the accused persons at the place of incidence. He was subjected to lengthy cross examination. In his cross c examination, he gave a few vague answers like he does not remember whether he had discussed the identity of the accused persons with Satyanarain, whether 4, 5 or 50 police officers were present at the funeral etc.

15. Corroborating the statement of PW4, Kanhaiya Lal (PW5) stated that after seeing the mob, he shut the door of his house called the Malpura police station and climbed to the roof. He could see persons climbing the roof of Govind Narain's house and he could recognize Afzal Kadir Islam, Bada Bahaiya, two brothers of tractorwala namely Jabbar tractorwala and Mannan, Hanif and Mahboob. According to him these persons went inside the house of Govind Narain and created nuisance. This witness, according to the trial court, rightly identified the persons named by him. This witness also stated that he knew these persons even before the incident. All the three accused were identified by the witness in Court. Later on, when the police came and the persons from the mob fled away, he went to the house of Govind Narain, the door was broken and he noticed that both Govind Narain and Hari Narain were lying in a pool of blood and were unconscious. Satyanarain had sustained injuries. Thereafter he took all of them to the hospital where two deceased persons were declared 'brought dead'. In his cross examination also nothing material was brought out by the defence. He did admit that he could not identify all the persons, who had come there.

16. PW 6-Radhey Shyam is the Investigating Officer and was the SHO of police Station, Malpura. According to him, he was busy in maintaining law and order situation when he received the information that assailants had entered the house of one Govind Narain Waheti and had beaten those inside; and B that the latter had been taken to the hospital. Satyanarain (PW7), who 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 c 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 E 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 appears from the F record that during recording of statement of this witness, the public prosecutor sought permission to declare the witness hostile. Without declaring him hostile, the Court had permitted him to be cross-examined by the public prosecutor. This related to the fact that after hearing portion C to D, part of Exh. P-9, G the witness has stated that after identifying the accused, he had stated the name of the accused as Abdul Mannan to the police.

He then stated that Abdul was also there, however he could not identify him definitely. At that stage, this witness was declared hostile. Cross examination of these witnesses by the public • H prosecutor as well as by the defence counsel did not have an. STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1123 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] adverse impact on the main case of the prosecution. In his cross examination, he said that he·had forgotten and therefore he had stated that he did not go to the police station for lodging the report. In fact he wrote the report in his own hand (Exh.P7). According to him, the persons who had assaulted him were the same persons who had assaulted his father and uncle. He also tried to wriggle out of his earlier statement that he could identify the accused. It needs to be rioticed that his statement, which was recorded in the Court on 17th March, 1999, was completely in consonance with the case of the prosecution but when he appeared in the Court for further cross-examination on 18th c March, 1999, he tried to wriggle out of his main statement.

Thus, it is not very difficult to understand the variation in his statement resulting in the further cross examination. This entire evidence has to be read along with the statement of the Investigating Officer (PW6). Establishment of a complete chain of events and clear identification of the persons assailing the deceased lead to the irresistible conclusion that the prosecution has been able to bring home the guilt of the accused. Undoubtedly, emphasis on the second half of the statement of PW7 cannot completely demolish the case of the prosecution which otherwise stands proved by the statements of PW4, PW5, PW6 and PW2.

17. The strain on the witness due to the incident cannot be ruled out inasmuch as he had lost his father, uncle and was himself injured. All the basic facts that supported the case of the prosecution were stated by him on 17th March, 1999 when the case was adjourned for further cross-examination on 18th March, 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 Cr.P.C. 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 [2011) 7 S.C.R. 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 B 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 c witnesses, they knew the accused particularly Abdul Zabbar, Afzal and Mannan for quite some time. There is no reason for the Court to hold that PWs 4 and 5 are not trustworthy.

Their statements describe the occurrence in its proper course and are compelling evidence of the same. We do not find it appropriate to discard their statements as not inspiring confidence. The statement of these witnesses must be appreciated in the proper perspective .. It was an incident involving a mob but only few persons had entered the house of the deceased, out of which 7 to 8 persons could be identified including the three accused as having inflicted injuries on the E body of the deceased and were duly identified by the prosecution witnesses. The injury on the head duly finds corroboration from the statement of the Doctor i.e. Ex.P4. It is not a case where the medical evidence does not support or corroborate the ocular evidence. Some discrepancies or some F variation.s in minor details of the incident would not demolish the case of the prosecution unless it affects the core of the prosecution case.

Unless the discrepancy in the statement of witness or the entire statement of the witness is such that it erodes the credibility of the witness himself, it may not be G appropriate for the Court to completely discard such evidence. The core of the prosecution case is that when the mob came, PWs 4 and 5 ran to their houses, locked their doors, went to the roof of the houses which were adjacent to the house of the deceased and watched some members of the mob, of whom H they could identify a few, assault the deceased. This statement STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1125 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] clearly shows the trustworthiness of these witnesses as they have stated that there were some other persons whom they could not identify. However both these witnesses and complainant Satyanarain clearly identified the persons who had entered and assaulted the deceased persons.

Though Satyanarain (PW 7) fully supported the case of the prosecution that he was also assaulted by these persons, he did speak in a different voice the next day before the Court. In our considered opinion the cumulative effect of the ocular evidence and documentary evidence is that the prosecution has been able to establish its case beyond reasonable doubt. c

19. We may also refer to a very recent judgment of this Court, given by us in Crl. Appeal Nos. 1693-1994/2005, State of U.P. v. Mohd. /kram & Ors. decided on 13th June, 2011 where by upsetting the judgment of acquittal passed by the 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. lqram, 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 c 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, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 17. In the instant case, the circumstantial evidence is so strong that it points unmistakably to the guilt of the respondents and is incapable of explanation of any other hypothesis that of their guilt. Therefore, findings of fact recorded by the High Court are perverse, being based on irrelevant considerations and inadmissible material."

20. Learned counsel for the accused had placed reliance upon the judgment of this Court in Shiva/ingappa Kal/ayanappa v. State of Karnataka [1994 Supp 3 SCC 235] to contend that there was no common object to commit murder. F The appellants cannot derive much advantage from the judgment of this Court in that case: First, the facts of that case are entirely different from those of the case in hand. In that case, it was established by the prosecution that A-1 to A-5 formed an unlawful assembly wherein A 1 and A2 were armed G with axes and A3, A4 and A5 with sticks in order to assault the two deceased persons amongst others. While A3 did not participate, A4 and A5 only dealt blows on legs and arms with · their sticks but A 1 and A2 dealt blows to the head with the butt end of their axes which proved to be fatal. Convicting A 1 and A2 under S. 302/149, IPC and A3-5 under S. 326/149, the STATE OF RAJASTHAN TH.

SECY.HOME DEPT. v. 1127 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.] Court held that taking all the circumstances of the case into consideration, the common object can be held to be to cause grievous hurt only and not to commit murder. However, in the present case, common object to commit murder has been fully proved. Second, the case of the prosecution is not that the entire mob had entered the house of the deceased. Out of the mob of 50-60 persons only 7 to 10 persons had broken the door of the house and some of them had climbed the wall to enter the house of the deceased. These persons had raised the slogan 'maro! maro!' and thereafter had inflicted the injuries upon the body of the deceased. The 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 assembly know the likelihood of the offence being committed in prosecution of that object. In either case, every member of that assembly is guilty of the same offence, which other members have committed in prosecution of the common object.

22. The final point is the common object. The case of Lakeman Shah v. State of WB. [(2001)5 SCC 235] on this point would further substantiate the case of the State and diminish the worth of the defence. Accused have inflicted the injuries after raising slogan and have commonly participated in committing offence which resulted in the death of the deceased.

23. For the reasons afore-recorded, we find the present case a fit case for interference· in the judgment of acquittal recorded by the High Court. Consequently, the appeals of the C State are allowed, t~e judgment of the High Court is set aside and that of the trial court is restored. We concur with the finding of guilt and the quantum of punishment awarded by the trial court. o 24. The bail bonds of the accused, if any who are on bail, are cancelled. They are directed to surrender within four weeks from today failing which the Chief Judicial Magistrate, District Tonk, Rajasthan shall ensure to take them into custody and they shall undergo the remaining part of their sentence in terms of E the judgment of conviction and punishment awarded by the trial court.

25. A copy of the judgment be sent to the concerned CJM for information and action. F N.J. Appeals allowed.