Appeal against acquittal: Interference with – Prosecution case that 13 accused along with 10-12 persons armed with weapons, forcibly entered the house of the informant and hurled abuses, inflicted informant’s brother with injuries who later succumbed to his injuries – Informant also suffered injuries when he tried to intervene – Conviction of 13 accused in respect of offences punishable u/ss. 147, 148, 149, 450 or 450/149, 452 or 452/149,
302 or 302 rw ss. 149, 307 or 307 rw 149 IPC on basis of the eye witness account – High Court upheld the conviction and sentence against A2 and A3, however, acquitted the remaining 11 accused – On appeal, held: Even if the testimony of single witness is found reliable by the Court, it can be the foundation of the order of conviction – On facts, evidence of the informant-brother of the deceased itself would normally be sufficient who received injuries in the transaction and his presence could not be doubted – Furthermore, on entirety, consistent and cogent eyewitness account – Presence of the prosecution witnesses who were examined as eyewitnesses to the occurrence, cannot be discredited – Five eyewitnesses testified to the presence and participation of the accused – Thus, in the face of such clear, consistent and cogent evidence on record, the High Court not justified in not relying on the evidence of the eyewitnesses without giving any valid reasons – Order of acquittal manifestly erroneous and perverse – Accused A1, A6, A7, A8, A10 and A13 were attributed certain overt acts not only by PWs 1 and 27 but at least by one more witness, thus, their acquittal is set aside and order of conviction and sentence is restored whereas rest of the accused are given benefit of doubt and their acquittal is confirmed – Penal Code, 1860 – ss 147, 148, 149, 450 or 450/149, 452 or 452/149, 302 or 302 read with ss. 149, 307 or
307 rw 149 – Evidence – Eye-witnesses – Code of Criminal Procedure, 1973 – s. 378.
Partly allowing the appeals, the Court
HELD: 1.1 With regard to the presence of the prosecution witnesses who were examined as eyewitnesses to the occurrence, nothing was brought on record to discredit them except the submission that the presence of PW6-was not spoken to or adverted by PW24. The fact that one of these witnesses had suffered injuries in the transaction and the rest of them had taken the deceased as well as the injured to medical center immediately after the occurrence lends credibility to the case of the prosecution unfolded through these eyewitnesses. Nothing has been brought on record in their cross-examinations to dislodge the credibility of these witnesses. Even then, this Court may avoid the testimony of PW6 as his presence was not adverted to by PW24. That leaves with 5 eyewitnesses who had testified to the presence and participation of the accused-respondents. [Para 17][437-D-F]
1.2 Even the version of a single witness, if his testimony is found reliable by the Court, can be the foundation of the order of conviction. In the instant case, the evidence of PW1-, the brother of the deceased itself would normally be sufficient. Said witness had received injuries in the transaction and his presence could not even be doubted. Additionally, there were four witnesses viz. PW2, PW24, PW25 and PW27. The chart tabulated shows the role ascribed to each of the accused. [Para 20][476-F-G]
1.3 In the face of such clear, consistent and cogent evidence on record, the High Court was not justified in proceeding on the basis that the eyewitnesses had not named other accused in specific terms or entertaining any doubt and then recording order of acquittal. The approach of the High Court was completely against the settled principles of law and no valid reasons were given by the High Court as to why the evidence of all the eyewitnesses could not be relied upon in so far as the role played by the acquitted accused was concerned. The order of acquittal recorded by the High Court is found to be completely unjust and its conclusion is totally against the record. In these appeals against acquittal, therefore, this Court is not persuaded to go by the order of acquittal passed by the High Court as the same, was manifestly erroneous and perverse. [Para 21][476-H; 477-A-C]
1.4 Considering the entirety of the material on record, emerges the consistent and cogent eyewitness account on record through PWs 1 and 27, which was well supported by PWs 2, 24 and 25. The evidence of PW6 has not been taken into account. [Para 22][477-C-D]
1.5 As there was an earlier incident just four days prior to the occurrence in question, in order to lend complete assurance and as a matter of prudence, a criteria may be adopted where, if any of the eyewitnesses (other than PW6), apart from and in addition to PWs 1 and 27 had adverted to and attributed overt acts to any of the accused, the role of such accused can be taken to have been established beyond any doubt. The principle in Masalti’s case would get attracted where apart from attribution of presence, nothing more was attributed by way of any overt act. However, in the facts of the instant case; and to rule out any possibility of over-implication, this criteria is adopted, more particularly because the matter in appeals against acquittal. Thus, accused A1, A6, A7, A8, A10 and A13 are those who were attributed certain overt acts not only by PWs 1 and 27 but at least by one more witness, whereas, the role attributed to the rest of them was only by PWs 1 and 27 without any other eyewitnesses apart from PW6, deposing about the role played by them. In the circumstances, these appeals are allowed against original accused A1, A6, A7, A8, A10 and A13 while rest of the accused-respondents are given benefit of doubt and their acquittal, as recorded by the High Court is confirmed. The order of conviction and sentence recorded against original accused A1, A6, A7, A8, A10 and A13 by the Trial Court is thus restored. [Paras 23, 24][477-F-H; 478-A-B]
Masalti v. State of U.P. [1964] 8 SCR 133; State of Maharashtra v. Ramlal Devappa Rathod and Others (2015) 15 SCC 77 : [2015] 11 SCR 357 – 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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