Criminal Law – Appeal against acquittal – Long-standing dispute between families of two brothers, accused no.5 (since deceased) and CW-29 in regard to ancestral property – Litigation ensued – Officials from the Survey Department came to conduct survey of the property – Altercation between the two families– Survey officials left the scene – Later, the accused persons returned to the scene, armed with lethal weapons and assaulted the family of complainants – ‘KR’ and ‘KE’, sons of CW-29 died – Trial court acquitted eleven accused persons tried for offences inter alia u/ss.143, 148, 323, 324 and 302 r/w s.149, IPC – High Court allowed the appeal in part and convicted ten accused persons-appellants inter alia u/s.304 Part I r/w s.149, IPC – On appeal, held: In case of appeal against acquittal, such as the present one, the High Court should not interfere with an order of acquittal merely because two views are possible – Only when the appreciation of evidence by the Trial Court is capricious or its conclusions are without evidence that the High Court may reverse order of acquittal – PW-1 (daughter of ‘KR’) narrated the manner in which the accused assaulted the family members of the prosecution witnesses, which was corroborated by other eye-witnesses – Trial court acquitted the accused persons primarily on the ground that the injuries on the accused persons (except accused no.2) was not satisfactorily explained – Pellet injuries suffered by accused no.3 were traceable to the bomb blasts caused by bomb carried by accused no.2 which exploded in the course of the incident – Injuries suffered by accused nos.4 and 5 were simple – None of the persons in the family of the complainant were armed – It was the accused’s side which was armed with weapons and explosives – Judgment of the High Court convicting accused nos.1-4, 6-8 and 11 u/s.304 Part I affirmed – Sentenced to undergo ten years rigorous imprisonment – No consistent deposition with respect to accused nos.10 and 12, they are given benefit of doubt and acquitted– Penal Code,1860– ss.143, 148, 323, 302, 324, 304 Part I r/w s.149 – Explosive Substances Act, 1908– ss.3, 4 and 5.
Long-standing dispute between the families of two brothers, accused no.5 and CW-29 with regard to their ancestral property. Litigation ensued. On the date of the incident, at about 8:30 a.m., officials from the Survey Department came to conduct survey of the property. After the house of CW-29 was surveyed, they proceeded to the house of accused no. 5, who opposed the survey. Altercation took place between ‘KR’, one of the son of CW-29 and accused no. 5. Survey officials left the scene. Later on, the accused returned to the scene, armed with lethal weapons. Case of the prosecution that accused no.1 assaulted ‘KR’ with dagger. His brother ‘KE’, who was standing near him, was stabbed by accused no. 3. Both, ‘KR’ and KE’ died. Trial court acquitted eleven accused persons tried for offences inter alia u/ss.143, 148, 323, 324 and 302 r/w. s.149, IPC. High Court allowed the appeal in part and convicted ten of the accused-appellants u/s.304 Part I read with Section 149, IPC. Hence, the present appeals.
Disposing of the appeals, the Court
HELD: 1.1 In case of an appeal against acquittal, as the present case, the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court should not interfere with an order of acquittal merely because two views are possible. It is only where the appreciation of evidence by the Trial Court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the Trial court has led to a miscarriage of justice. The High Court, however, must be satisfied that the incident cannot be explained except on the basis of the guilt of the accused and is inconsistent with their innocence. [Para 14] [399-C-E]
1.2 PW 1 narrated the course of the incident and the manner in which the other accused had assaulted the members of the family of the prosecution witnesses. The account of the incident furnished by PW 1 has been corroborated in the testimonies of the other eye-witnesses. [Para 15] [400-A, C-D]
1.3 The evidence of PW 20, the doctor noted the injuries which were sustained by accused No. 2. These injuries were duly explained in the evidence of the prosecution witnesses as having been sustained when the bomb which accused No. 2 was carrying exploded in the course of the incident. The injuries sustained by the other accused were evidently simple injuries. The pellet injuries suffered by accused No. 3 were traceable to the bomb blasts caused by accused No. 2. The injuries suffered by accused Nos. 4 and 5 were of a simple nature. [Para 19] [404-G; 405-B-C]
1.4 The judgment of the Trial court suffers from a manifest perversity. The Trial court at one stage, adverted to the injuries sustained by the four accused persons as “fatal injuries” ignoring that there had been no death in the course of the incident on the side of the accused. At other places in the course of the judgment, the Trial court opined that the injuries were severe. Here again, there was an evident and manifest error on the part of the Trial court in failing to notice that the pellet injuries which were sustained by accused No. 3 were a result of the explosion of the bomb which had been handled by accused No.2. The other injuries sustained by the accused were relatively of a minor nature. It has emerged on the record that in the cross complaint which was filed by the side of the accused, the police, after investigation, submitted a B summary report which was accepted by the Magistrate. [Para 20] [405-D-E]
1.5 The principal basis on which the Trial court acquitted the accused is contrary to the evidence on the record. The evidence on the record is indicative of the following circumstances:
(i) As a result of the incident, two persons – ‘KE’ and ‘KR’ suffered homicidal death in the family of the complainant and as many as six persons were injured;
(ii) None of the persons in the family of the complainant were armed;
(iii) On the contrary, it was the side of the accused which came to the house of the complainant armed with weapons and explosives;
(iv) The injury sustained by the two deceased persons were on vital parts of the body namely, lungs and kidney; and
(v) After the initial altercation took place at 10:30 am and the survey officers had left the location, the accused returned armed with lethal weapons and during the course of the incident caused serious injuries on Krishnappa and Kenchappa resulting in their death.
The judgment of the Trial Court proceeded on the basis of surmises. The Trial court hypothesised that since the deceased was 6 ft. in height and accused No. 1 was 5 ft. in height, the injuries, if caused by a dagger, would have been slanting and not vertical in nature. This has completely ignored the vital aspects of the medical evidence on the record. The contradictions which the Trial court adverted to in the evidence of PWs 3 and 4 were not of a nature that should result in discrediting the entire case of the prosecution. [Para 21] [405-F-H; 406-A-D]
1.6 The High Court was fully justified in reversing the judgment of acquittal, having due regard to the parameters which govern the exercise of its jurisdiction in an appeal against acquittal. The High Court was correct in coming to the conclusion that the provisions of Section 149, IPC stand attracted. Two elements are crucial to the definition of Section 149, IPC: (i) the offence must be committed by a member of an unlawful assembly;
(ii) the offence must be committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once a common object of an unlawful assembly is established, it is not necessary that all persons who form the unlawful assembly must be demonstrated to have committed the overt act. The common object is ascertained from considering the acts of its members and on the basis of all surrounding circumstances. In the present case, the common object within the meaning of Section 149 is evident from the genesis of the incident, the manner in which the accused returned after the initial altercation armed with lethal weapons and the nature of the injuries which were inflicted in concert. [Para 22] [406-E, G-H; 407-A-B; 408-B]
1.7 The finding of the High Court that the conviction must be based on the provisions of Section 304 Part I of the Code, not interfered with. However, the sentence which has been imposed by the High Court should be enhanced to ten years rigorous imprisonment. The judgment of the High Court convicting accused Nos. 1, 2, 3, 4, 6, 7, 8 and 11 of the offence under Section 304 Part I is accordingly affirmed. The conviction under Section 324 read with Section 149 of the Code is affirmed. There is no consistent deposition with respect to accused Nos. 10 and 12. They are given the benefit of doubt and stand acquitted. [Para 23] [408-D-E]
Amar Malla v. State of Tripura (2002) 7 SCC 91 ; State of M P v. Ramesh (2005) 9 SCC 705 : [2004] 6 Suppl. SCR 152 ; Raghubir Singh v. State of Rajasthan (2011) 12 SCC 235 : [2011] 10 SCR 739; Sikandar Singh v. State of Bihar (2010) 7 SCC 477 : [2010] 8 SCR 373 ; Sanjeev Kumar Gupta v. State of Uttar Pradesh (2015) 11 SCC 69 : [2015] 5 SCR 122 ; Ramachandran v. State of Kerala (2011) 9 SCC 257 : [2011] 13 SCR 923 – relied on.
Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 ; Mijazi v State of UP AIR 1959 SC 572 : [1959] Suppl. SCR 940 ; Masalti v State of U.P. (1964) 8 SCR 133 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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