Penal Code, 1860 – s. 302 r/w 149 – Murder pursuant to armed assault – Deceased was assaulted with axe, stick, pickaxe and stone when he was coming back from work alongwith his wife (PW1) and elder brother (PW2) – Six accused – A-1 died – Trial court acquitted A-2 to A-6 – High Court reversed acquittal of A-2 to A-5 and convicted them u/s.302 r/w s.149, however, confirmed acquittal of A-6 – On appeal by A-2 to A-5 (appellants), held: Trial court erred in disbelieving the evidence of PWs-1 to 3 only on the ground that they were relatives of the deceased, forgetting that PW1 was daughter of A-1 and PW-3 was A-1’s wife – No reason for PW-3 to depose against her own husband making such serious allegations – Depositions of PW-1 to PW-3 when considered alongwith the documentary evidence on record and medical evidence of PWs-10 and 14, made it clear that their evidence was natural, trustworthy and acceptable – Injuries found in the post-mortem report were attributable to overt acts of A-2 to 5, as stated in the complaint – Contradictory portion of the statement of PW-14 not significant to discard the total evidence on record – As the view taken by the trial court was not at all a possible view and the findings ran contrary to the evidence on record, the High Court rightly reversed the judgment of the trial court by convicting A-2 to A-5 – From the evidence on record, it is clear that the assault was intentional which resulted in the death of deceased, and A-2 to A-5 had a common object, as such the High Court rightly convicted them u/s.302/149, IPC etc.
Code of Criminal Procedure, 1973 – s.378 – Scope of – Appeal against acquittal recorded by trial court – Held: Unless the view taken by the trial court is not a possible view, normally the High Court should not interfere with the acquittal recorded by the trial court.
Evidence – Witness – Credibility of – Held: Only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses.
Dismissing the appeal, the Court
HELD:1. In various authoritative pronouncements, this Court has circumscribed the scope of appeal under Section 378 CrPC, in cases where appeal is preferred against acquittal recorded by the trial court. Further, it is a settled proposition that unless the view taken by the trial court is not a possible view, normally the High Court should not interfere with the acquittal recorded by the trial court. There cannot be any straightjacket formula to apply readily for the cases in appeals arising out of acquittal recorded by the trial court. Whether the view taken by the trial court is a possible view or not; whether the findings recorded by the trial court are in conformity with the evidence or not; are the matters which depend upon facts and circumstances of each case and the evidence on record. By reappreciating evidence on record if appellate court comes to conclusion that findings recorded by the trial court are erroneous and contrary to law, it is always open for the appellate court, by recording good and compelling reasons for interference and overturn the judgment of acquittal by converting the same to that of conviction. [Para 10][303-G-H; 304-A-C]
2. In this case, the deceased; PWs-1 to 3; and accused were closely related. The trial court disbelieved the evidence of PWs1 to 3 only on the ground that they are relatives of the deceased, forgetting the fact that PW-1 is the daughter of A-1 and PW-3 is no other than the wife of A-1. In Ex.P-1 itself PW-1 has stated that there was dispute between her deceased husband and his elder brother (PW-2) on one side and her father (A-1) and his brothers on other side in respect of sharing of tapping of toddy trees. Further, PW-1 who was accompanying the deceased at the time of the incident, has stated in her evidence that at about 06:00 a.m. she, her deceased husband and also PW-2, together went to attend coolie work and when they were returning to their house, at about 11:30 a.m. assault was made near the hostel. It is quite natural that in rural areas, going to work in early hours and coming back to their home around 11-11:30 a.m. to have their food. She has also clearly stated in her deposition that A-1 (who is now dead) hit with axe on the left cheek of the deceased, A-3 hit the deceased with bedaga (a sharp-edged agricultural instrument) on his head, A-4 assaulted with club on the head of the deceased, and A-5 also assaulted the deceased with axe on his head. If one examines the testimony of PW-1 closely, it is clear that it is consistent with her allegations in her complaint – Ex.P-1. [Para 11][304-D-H; 305-A-B]
3. Ex.P-6 is the post-mortem examination report in which the external injuries on the dead body of the deceased were mentioned. If the complaint made by PW-1 and her testimony are considered along with the injuries found in Ex.P-6 – post-mortem report, it makes it clear that the said injuries referred in the postmortem report are attributable to overt acts of the accused nos. 2 to 5, as stated in the complaint. PW-1 has not made any improvements, omission or contradiction, so far as it relates to details of occurrence of the incident in the manner alleged in the complaint – Ex.P-1 and as deposed by her in the examination-inchief. As PW-1 is a rustic villager, discrepancies in timelines, as to the time when she was examined by PW-14 (doctor) for the said injuries cannot go to the root of the prosecution case and further it is to be noted that she sustained injury on the said date and she was examined by PW-14. The deposition of PW-1 appears to be truthful and trustworthy. PW-2, the elder brother of the deceased has also stated in his evidence narrating the incident in the same lines as that of PW-1. PW-2 is also an injured witness in the incident and PW-10 (doctor) examined him for the said injury and Ex.P-4 is the wound certificate pertaining to injuries suffered by PW-2, issued by PW-10 – Senior Specialist in District Hospital. The contents of the wound certificate and oral evidence of PW-2 also establish that the injured PW-2 was brought to the hospital by his wife with a history of assault on him on the same day by A-1 and others. PW-3 is none other than the wife of A-1 who died during the pendency of trial and mother of PW-1. There is absolutely no reason for PW-3 to depose against her own husband making such serious allegations. If the depositions of PW-1 to PW-3 are considered along with the documentary evidence on record and medical evidence of PWs-10 and 14, it is crystal clear that their evidence is natural, trustworthy and acceptable. [Para 11][305-A-G]
4. Though the evidence of PWs-1 to 3 is consistent, reliable and trustworthy, the trial court, only by referring to minor contradictions, disbelieved the whole of their testimony. The findings, as recorded by the trial court in support of the acquittal, are contrary to evidence on record and the testimony of PWs-1,
2 and 3. Thus such findings, being perverse and erroneous, it is always open for the appellate court to reverse such findings on re-appreciation of evidence on record. [Para 11][306-D-F]
5. As regards the contradictory portion of the statement of PW-14 with reference to entries under Ex.P-6 wherein it was recorded that undigested food was found in the stomach, it is to be noticed that in Ex.P-6 itself reveals that the intestine of the deceased was full of faecal matter, therefore, death must have occurred between 3 to 12 hours prior to the postmortem examination, which supports the prosecution case. In that view of the matter, the contradictory portion of the statement of PW14 needs to be discarded and not significant to discard total evidence on record. [Para 11][306-F-G]
6. Having regard to the evidence on record, as the view taken by the trial court was not at all a possible view and the findings run contrary to the evidence on record, the High Court has rightly reversed the judgment of the trial court by convicting the appellants (A-2 to A-5). Further contention of the appellants that in any case the conviction under Section 302, IPC be modified to that of conviction under Section 304-II, IPC, has no merit. From the evidence on record, it is clear that the assault was intentional which resulted in the death of the deceased and all accused – A-2 to A-5 – had a common object, as such the High Court has rightly convicted the accused for offence punishable under Section 302/149, IPC etc. [Para 11][306-H; 307-A-C] Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (2000) 8 SCC 457 : [2000] 3 Suppl. SCR 104 – relied on
Shivaji Sahabrao Bobade & Anr. v. State of
Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Kanhaiya Lal & Ors. etc. v. State of Rajasthan etc.(2013) 5 SCC 655 : [2013] 6 SCR 361; V.N. Ratheesh v. State of Kerala (2006) 10 SCC 617 : [2006]
3 Suppl. SCR 314; and Moti & Ors. v. State of U.P. (2003) 9 SCC 444– 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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