# 4 S.C.R. 789 JO OHAN v. STATE OF M.P

- **Citation:** [2015] 4 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 2015-04-08
- **Case number:** Criminal Appeal No. 1683 of 2010
- **Bench:** Dipak Misra, N.V. Ramana
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4-s-c-r-789-jo-ohan-v-state-of-m-p-30720
- **Pages:** 29

## Headnote

A
B
Penal Code, 1860: ss. 302, 323, 324 rlw s. 149 -
Prosecution case that the accused persons attacked the C
deceased and complainant party with lathis, farsa and
bombs - Trial court disbelieved the prosecution story and
acquitted the accused - Conviction by High Court - Appeal
against conviction - Held: The prosecution was able to D
establish not only the appellant's presence but also his
active participation as a member of the unlawful assembly
-
There was ample
evidence to conclude that all the
accused persons had formed an unlawful assembly and
there was common object to assault the deceased who E
succumbed to the injuries inflicted on him -
Trial Judge
was guided that there was a free fight - The said finding
was demonstrably erroneous inasmuch as the prosecution
clearly established the fact that the accused persons were
F
the aggressors -
Thus, it was case where the appellant
deserved to be convicted uls.302 in aid of s.149 -
The
witnesses, as High Court rightly found were reliable and
stood embedded in their version and remained unshaken
- The witnesses suffered injuries in the occurrence - Their G
presence at the scene of occurrence cannot be doubted -
Laying emphasis on the minor discrepancies and
omissions in the evidence of prosecution witnesses, who
789
H
790
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
were natural witnesses to the occurrence and giving stress
on irrelevant aspects and ultimately to record the acquittal,
by no stretch of imagination, can be regarded as a
plausible or possible view expressed by the trial Judge
and, therefore, the High Court was justified in reversing the
8 judgment of acquittal to one of conviction.
c
D
Appeal: Power of appellate court while exercising the

## Text

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(2015] 4 S.C.R. 789
JO OHAN
v.
STATE OF M.P.
Criminal Appeal No. 1683 of 2010
APRIL 08, 2015
[DIPAK MISRA AND N.V. RAMANA, JJ.]
A
B
Penal Code, 1860: ss. 302, 323, 324 rlw s. 149 -
Prosecution case that the accused persons attacked the C
deceased and complainant party with lathis, farsa and
bombs - Trial court disbelieved the prosecution story and
acquitted the accused - Conviction by High Court - Appeal
against conviction - Held: The prosecution was able to D
establish not only the appellant's presence but also his
active participation as a member of the unlawful assembly
-
There was ample
evidence to conclude that all the
accused persons had formed an unlawful assembly and
there was common object to assault the deceased who E
succumbed to the injuries inflicted on him -
Trial Judge
was guided that there was a free fight - The said finding
was demonstrably erroneous inasmuch as the prosecution
clearly established the fact that the accused persons were
F
the aggressors -
Thus, it was case where the appellant
deserved to be convicted uls.302 in aid of s.149 -
The
witnesses, as High Court rightly found were reliable and
stood embedded in their version and remained unshaken
- The witnesses suffered injuries in the occurrence - Their G
presence at the scene of occurrence cannot be doubted -
Laying emphasis on the minor discrepancies and
omissions in the evidence of prosecution witnesses, who
789
H
790
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
were natural witnesses to the occurrence and giving stress
on irrelevant aspects and ultimately to record the acquittal,
by no stretch of imagination, can be regarded as a
plausible or possible view expressed by the trial Judge
and, therefore, the High Court was justified in reversing the
8 judgment of acquittal to one of conviction.
c
D
Appeal: Power of appellate court while exercising the
appellate jurisdiction against the judgment of acquittal -
Scope of, discussed.
Witnesses: Injured witnesses/Related/Interested
witnesses - Reliability of their testimony.
Dismissing the appeal, the Court
HELD: 1. On a perusal of the testimony of PW- 13
and the injuries sustained by the deceased, there can
be no trace of doubt that the death was homicidal in
nature and was caused by explosive substance. Other
E witnesses had also suffered injuries in the occurrence.
PW-7, PW-14, PW-15 and PW-16, who were related to
the deceased were the eye witnesses and they had
supported the prosecution version. There can be no
cavil over the proposition that when the witnesses are
F related and interested, their testimony should be
closely scrutinized, but in the instant case, nothing has
been elicited in the cross-examination to discredit their
version. On a studied scrutiny of their evidence, it can
be said with certitude that they have lent support to
G each other's version in all material particulars. There
were some minor contradictions and omissions which
were emphasised by the trial Judge. The High Court
treated the said discrepancies and the minor
contradictions as natural. That apart, their evidence
H
JODHAN v. STATE OF M.P.
791
also found support from the medical evidence and the A
initial allegations made in the FIR. The trial Judge has
attached immense emphasis to such omissions and
contradictions which, according to the High Court,
were absolutely insignificant and trivial. The witnesses
who deposed against the accused persons were close B
relatives and had suffered injuries in the occurrence.
Their presence at the scene of occurrence cannot be
doubted, their version was consistent and nothing was
elicited in the cross-examination to shake their
testimony. There were some minor or trivial C
discrepancies, but they really did not create a dent in
their evidence warranting to treat the same as
improbable or untrustworthy. A testimony of an injured
witness stands on a higher pedestal than other 0
witnesses. Where a witness to the occurrence has
himself been injured in the incident, the testimony of
such a witness is generally considered to be very
reliable, as he is a witness that comes with a built-in
guarantee of his presence at the scene of the crime E
and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone. [Paras 15, 17, 20, 21]
[804-A; 805-E-H; 806-A, B; 808-E-F; 809-G; 810-A-B]
Gamini Bala Koteswara Rao v. State of A.P 2009 (14)
F
SCR 1: (2009) 10 SCC 636; Kallu v. State of M.P 2006
(1) SCR 201: (2006) 10 SCC 313; Ramesh Babula! Doshi
v. State of Gujarat 1996 (2) Suppl. SCR 265: (1996) 9
SCC 225; Ganpat v. State of Haryana 2010 (12) SCR 400
: (2010) 12 SCC 59; State of Punjab v. Kamai/ Singh 2003 G
(2) Suppl. SCR 593: (2003) 11 SCC 271; Jugendra Singh
v. State of Uttar Pradesh 2012 (6) SCR 193: (2012) 6 SCC
297; Basappa v. State of Kamataka 2014 (3) SCR 391 :
(2014) 5 sec 154 - relied on.
H
792
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
2. The prosecution was able to establish not only
the appellant's presence but also his active
participation as a member of the unlawful assembly. He
might not have thrown the bomb at the deceased, but
thereby he would not cease to be a member of the
B unlawful assembly as understood within the ambit of
Section 149 IPC and there is ample
evidence on
record to safely conclude that all the accused persons
who have been convicted by the High Court had
formed an unlawful assembly and there was common
C object to assault the deceased who succumbed to the
injuries inflicted on him. The trial Judge was guided
that there was a free fight. The said finding was
demonstrably erroneous inasmuch as the prosecution
0 was clearly established the fact that the accused
persons were the aggressors. The High Court on reappreciation and analysis of the evidence has found
that the accused persons were the aggressors.That
apart, as the entire story of prosecution would show,
E the accused persons armed with lethal weapons had
gone to the house of deceased and hurled abuses in
filthy language and on being objected to one of them
with pre-determined mind threw the bomb on the chest
of the deceased. Thus, it is case where the appellant
F deserved to be convicted under Section 302 in aid of
Section 149, IPC. The witnesses, as the High Court
rightly found are reliable and have stood embedded in
their version and remained unshaken. Laying
emphasis on the minor discrepancies and omissions
G in the evidence of prosecution witnesses, who were
natural witnesses to the occurrence and giving stress
on irrelevant aspects and ultimately to record the
acquittal,by no stretch of imagination, can be regarded
as a plausible or possible view expressed by the trial
H
JODHAN v. STATE OF M.P.
793
Judge and, there~ore, the High Court is justified in A
reversing the judgment of acquittal to one of
conviction. [Paras 26, 27, 29, 30] [813-D-F; 814-A-G;
816-E, H; 817-A-B]
Dalip Singh v. State of Punjab AIR 1953 SC 364: 1954 B
SCR 145; Rameshwar v. State of Rajasthan AIR 1952 SC
54: 1952 SCR 377; Hari Obula Reddy v. State of A.P
(1981) 3 SCC 675; State of Punjab v. Jagir Singh 1974
(1) SCR328: (1974) 3 SCC 277; Abdul Sayeed v. State
of M.P. 2010 (13) SCR 311: (2010) 10 sec 259; c
Ramlagan
Singh v. State of Bihar (1973) 3 SCC 881;
Ma/khan Singh v. State of UP (1975) 3 SCC 311; Vishnu
v. State of Rajasthan (2009) 10 SCC 477; Ba/raje v. State
of Maharashtra 2010 (6) SCR 764: (2010) 6 SCC 673; D
Jarnail Singh
v. State of Punjab 2009 (13) SCR 774 :
(2009) 9 SCC 719; Baladin v. State of UP AIR 1956 SC
181; Masalti v. State of UP AIR 1965 SC 202: 1964 SCR
133; Bhargavan v. State of Kera/a 2003 (5) Suppl. SCR
535: (2004) 12 SCC 414; Ramachandran v. State of E
Kera/a 2011 (13) SCR 923: (2011) 9 SCC 257; State of
A.P v. Gian Chand 2001 (3) SCR 247 : (2001) 6 SCC
71; Takhaji Hiraji v. Thakore Kubersing
Chamansingh
(2001) 6 SCC 145; Dahari v. State of UP 2012 (8) SCR
F
1219: (2012) 10 sec 256 - relied on.
Case Law Reference
2009 (14) SCR 1
referred to.
Para 11
2006 (1) SCR 201
referred to.
Para 11
G
1996 (2) Suppl.SCR 265 referred to.
Para 12
2010 (12) SCR 400
referred to.
Para·12
2003 (2) Suppl.SCR 593 referred to.
Para 13
H
794
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
2012 (6) SCR 193
referred to.
Para 13
2014 (3) SCR 391
referred to.
Para 13
1954 SCR 145
relied on.
Para 18
B
1952 SCR 377
relied on.
Para 18
(1981) 3 sec 675
relied on.
Para 19
1974 (1) SCR 328
relied on.
Para 20
c
2010 (13) SCR 311
relied on.
Para 21
(1973) 3 sec 881
relied on.
.Para 21
(1975) 3 sec 311
relied on.
Para 21
D
(2009) 10 sec 477
relied on.
Para 21
2010 (6) SCR 764
relied on.
Para 21
2009 (13) SCR 774
relied on.
Para 21
E
AIR 1956 SC 181
relied on.
Para 23
1964 SCR 133
relied on.
Para 23
2003 (5) Suppl. SCR 535 relied on.
Para 24
F
2011 (13) SCR 923
relied on.
Para 25
2001 (3) SCR 247
relied on.
Para 28
G
(2001) 6 sec 145
relied on.
Para 28
2012 (8) SCR 1219
relied on.
Para 28
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 1683 of 2010.
H
JODHAN v. STATE OF M.P.
795
From the Judgment and Order dated 12.12.2005 of the A
High Court of Judicature at Madhya Pradesh, Gwalior Bench
in Crl. A. No. 214 of 1995.
Varinder Kumar Sharma, Vipin Kumar, K. K. Shrivastava
(for Deepak Goel) for the Appellant.
B
C. D. Singh for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, J. 1. The present appeal calls in C
question the defensibility and the legal sustainability of the
Judgment of conviction and order of sentence passed by
the Division Bench of the High Court of Madhya Pradesh,
Bench at Gwalior in Criminal Appeal No. 214 of 1995
whereby the High Court has dislodged the Judgment of D
acquittal recorded by the learned Additional Sessions Judge
in respect of all the accused persons including the present
appellant for the offences punishable under Sections 302,
323, 324 read with Sections 149 of the Indian Penal Code
(IPC) and 148 IPC and proceeded to sentence each of E
the accused under Section 302 read with Section 149 of
IPC and imposed rigorous imprisonment for life along with
separate sentences for other offences with the stipulation
that all the sentences would be concurrent. Be it noted,
F
the appellant and one Mangal Singh were also tried
under Sections 3 and 4 of the Explosive Substances Act,
1908.
2.
The facts which are essential to be exposited for
the disposal of this appeal are that on 7.1.1984 about 9.00 G
a.m. when Ratta, PW-7, was at his home, the accused
persons,
namely,
Mangal
Singh,
Babbu,
Jodhan,
Kanchhedi, Bhinua, Ramswaroop and Natthu and others
came there armed with lathis, farsa and handmade bombs H
796
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A and started abusing Ratta and his family members and
exhorted that they would not leave the Kumharwalas alive.
As alleged, Kanchhedi assaulted Rukmanibai on her left
hand with farsa, Jodhan, the present appellant, caused
injury in the right leg of Heeralal, PW-16, by throwing a
B handmade bomb at him and accused Mangal Singh threw
a handmade bomb on the chest of Siriya alias Shriram as
a result of which he received serious injuries.
Other
accused persons used lathi in the incident. As the
prosecution story proceeds, Ratta lodged an FIR, Ex.
C P/24, on 7.1.1984 about 12.15 p.m. and by that time Siriya
@ Shriram had already succumbed to the injuries. The
injured
persons
were
medically examined and on
requisition by the investigating agency postmortem was
0
carried out. The investigating agency in the course of
investigation prepared the spot map, collected the
bloodstained soil from the place of incident, and further,
as is demonstrable, on
being
led
by the accused
persons seized the weapons, namely, lathi, farsa
and
E handmade bombs and, thereafter, sent the seized articles
to the chemical examiner for analysis. The investigating
officer recorded the statements of the witnesses and
eventually placed the chargesheet in the court of Chief
Judicial Magistrate, Vidisha, who, in turn, committed the
F matter to the Court of. Session, Vidisha.
3. The learned trial Judge framed charges under
Sections 302, 323, 324 read with Sections 149 and 148
of IPC against all the accused persons and an additional
G charge under Section 324 IPC
against the
accused
Kanchhedi and under Sections 3 and 4 of Explosive
Substances Act against Jodhan and Mangal Singh.
4. The accused persons pleaded not guilty and took
H the plea of false implication. It was the further case of
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
797
the accused persons that the informant and others had A
confined Babbu Khangar in a room and assaulted him and
because of the injuries inflicted on Babbu he expired later
on.
5. In order to establish the charges levelled against B
the accused persons the prosecution examined as many
as 16 witnesses and marked number of documents as
Exhibits. During trial Mishri, PW-1, Harnam Singh, PW3, Tulsa Bai, PW-4 and Hazrat Singh, PW-5,
did
not
support the
prosecution story and
accordingly were C
declared hostile by the prosecution. The learned trial Judge
while appreciating the evidence on record noted certain
discrepancies, expressed doubt about the testimony of the
witnesses who had deposed in favour of the prosecution,
referred to the cases pending in the Court, the free fight D
between the parties, absence of satisfactory explanation
by the prosecution as regards the injuries sustained by
the accused
persons,
the
absence of independent
evidence on record
and accordingly disbelieved the story
of the prosecution and acquitted all the accused persons.
E
6. At this juncture, it is worthy to note that one Babula!
who was arraigned as an accused in the FIR died before
the chargesheet could be filed and, therefore, six accused
persons faced the trial.
7. Being dissatisfied with the judgment of acquittal,
F
the State preferred the criminal appeal against the six
accused persons. During
the pendency of the appeal
Mangal Singh expired and the appeal stood abated G
against him. The High court reappreciated the evidence
on record and opined that the view expressed by the
learned trial Judge was totally incorrect and could not be
regarded as a plausible one and, accordingly, reversed
H
798
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A the same and recorded the conviction and imposed the
sentence as has been stated hereinbefore.
Hence, the.
present appeal.
Except the present appellant, the other
accused persons have not preferred any appeal.
B
8. We have heard Mr. Varinder
Kumar
Sharma,
learned counsel for the appellant and Mr. C.D. Singh,
learned counsel for the respondent.
9. It is submitted by Mr. Sharma, learned counsel for the
C appellant that the High Court while unsettling an order of
acquittal should exercise the appellate power with great
care and caution and it must be for substantial compelling
reasons and the appellate court should not reverse a
judgment of acquittal unless it finds that the same is totally
o perverse and wholly unsustainable. It is put forth by him
that in the instant case the learned trial Judge had analysed
the evidence brought on record in an appropriate manner,
noted the discrepancies and contradictions and hence,
the view expressed by him, being a plausible one,
E . there was no warrant
or justification on the part of the
High Court to interfere with the same. Learned counsel
would submit that the witnesses who have been placed
reliance upon by the High Court are interested witnesses
being family members of the informant and when all other
F independent witnesses have not deposed in favour of the
prosecution the view expressed by the trial court deserved
acceptation.
It is contended by Mr. Sharma, that the
prosecution has failed to explain why other eye witnesses
who were present at the spot were not examined and such
G non-furnishing of explanation having not been properly
appreciated by the High Court, the judgment of reversal
is unsustainable.
It is also contended by Mr. Sharma
that when the appellant had not caused any injury on the
H deceased, he should not have been convicted under
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
799
Section 302 IPC, for he would be liable for his overt act A
only and not for others.
10. Mr. C.D. Singh, learned counsel for the State would
submit that the findings recorded by the learned trial
Judge are not founded on proper appreciation of the B
evidence on record and, in fact, they are perverse and
totally untenable and, therefore, the High Court
is
justified
in interfering with the judgment.
It is urged by
him that the view of acquittal as expressed by the learned
trial Judge cannot be regarded as a plausible one. The C
discrepancies and the contradictions that have been
perceived by the learned trial judge, submits Mr. Singh,
are absolutely minor and they really do not even create a
mild dent on the prosecution version. It is his further
submission that the principal witnesses who have been D
nomenclatured as interested witness are the close family
members who had witnessed the occurrence and further
they had sustained injuries in the incident, and hence,
there is no reason for disbelieving their testimony.
Learned counsel has contended
that
when
the E
prosecution has been able to establish the case beyond
reasonable doubt on the basis of the evidence brought on
record its version could not have been thrown overboard
on the ground that other independent witnesses had not F
been examined, for it is open to the prosecution even not
to examine a material witness under certain circumstances
and in the instant case nothing has been pointed out by
the accused persons to show that the witness was one
such
material witness without whose evidence the G
prosecution version was bound to collapse or flounder.
Lastly, it is canvassed by Mr. Singh that when the accused
persons formed an unlawful assembly, Section 149 gets
squarely attracted and in that circumstance the appellant
cannot be permitted to advance an argument that he is H
800
SUPREME COURT REPORTS
(2015) 4 S.C.R.
A not liable to be convicted under Section 302 IPC as he had
not assaulted the deceased.
11. To appreciate the submissions raised at the bar, we
think it relevant to deal with the power of the appellate
s court while exercising the appellate jurisdiction against the
judgment
of acquittal.
This
Court
in Gamini Bala
Koteswara Rao v. State of A.P.£11 has held that it is
well settled in law that it is open to the High Court to
reappraise the evidence and conclusions drawn by the trial
C court but only in a case when the judgment of the trial
court is stated to be perverse. The word 'perverse' in
terms as understood in law has been defined to mean
'against the weight of evidence'. In Kallu v. State of
M.P.121, it has been held that if the view taken by the trial
D court is a plausible view, the High Court will not be justified
in reversing it merely because a different view is possible.
Elaborating further it has been ruled that while deciding an
appeal against acquittal, the power of the appellate court
is no less than the power exercised while hearing
E appeals against conviction. In both types of appeals,
the power exists to review the entire evidence. However,
one significant difference is that an order of acquittal will not
be interfered with, by an appellate court, where the judgment
of the trial court is based on evidence and the view taken
F is reasonable and
plausible.
It will
not reverse the
decision of the trial court merely because a different view
is possible. The appellate court will also bear in mind
that there is a presumption of innocence in favour of
G the accused and the accused is entitled to get the benefit
of any doubt.
1 (2009) 1 o sec 636
H 2 (2006) 10 sec 313
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
801
12. In Ramesh Babula! Doshi v. State of Gujaratl31,
A
this Court has taken the view that while considering the
appeal against acquittal, the appellate court is first required
to seek an answer to the question whether the findings
of the trial court are palpably wrong, manifestly erroneous
or demonstrably unsustainable and if the court answers the B
above question in the negative, the acquittal cannot be
disturbed.
In
Ganpat v.
State of Haryana14l, after
referring to earlier authorities certain principles have been
culled out. They read as follows:-
"15. The following principles have to be kept in mind
by the appellate court while dealing with appeals,
particularly, against an order of acquittal:
c
(i) There is no limitation on the part of the appellate D
court to review the evidence upon which the order of
acquittal is founded and
to
come
to
its own
conclusion.
(ii) The appellate court can also review the trial court's
E
conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the
State, it is the duty of the appellate court to marshal
the entire evidence on record and by giving cogent
F
and adequate reasons may set aside the judgment of
acquittal.
(iv) An order of acquittal is to be interfered with only
when there are 'compelling and substantial reasons'
for doing so. If the order is 'clearly unreason9ble', G
it is a compelling reason for interference.
3 (1996) 9 sec 22s
4 (2010) 12 sec 59
H
802
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A
(v) When the trial court has ignored the evidence or
misread
the
material evidence or has ignored
material documents like dying declaration/report of
ballistic experts, etc. the appellate court is competent
to reverse the decision of the trial court depending
B
on the materials placed."
13.
In State of Punjab v. Karnail Singh[5J, the Court
opined that the paramount consideration of the court is
to ensure that miscarriage of justice is prevented. A
C miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an innocent.
In a case where admissible evidence is ignored, a duty is
cast upon the appellate court to reappreciate the evidence
even where the accused has been acquitted, for the
D purpose of ascertaining as to whether any of the accused
committed any offence or not. The aforestated principles
have been reiterated in Jugendra Singh v. State of Uttar
Pradeshl61 and Basappa v. State of Karnataka[71.
E
14. Keeping in view the aforesaid enunciation of the
legal
principles
we have to scrutinize whether the
appreciation of the evidence by the learned trial Judge was
so unacceptable having not been properly marshalled
and hence, it was the obligation of the High Court to
F reappreciate the evidence and record a conviction. Before
we proceed to delve into the grounds of interference by
the High Court in a judgment of acquittal within the
parameters indicated hereinabove, we think it appropriate
to refer to the post mortem report of the deceased Siria
G
5 (2003) 11 sec 271
a (2012) a sec 297
H
7 (2014) 5 sec 154
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
803
@ Shriram.
Dr. Arun Kumar Srivastava, PW-13, has A
conducted the autopsy on the dead body and in his report,
Ex. P-32, he has recorded the following findings:-
"Full thickness continuous patch of burnt area with
blackening and most of the skin area over front of B
chest is in form of roasted patches of skin. Burn
area over chest is bordered with red area of skin of
1 cm
thickness. This burnt area
extends from
mentum, sub mental region and extending laterally
to both sub mandibular region, going downwards the C
burnt area enlarges over front and sides of neck over
suprasternal notch.
Then burnt area laterally beyond
lateral border of sternum measuring
29
cm.
Maximum vertical length and broadest area is 14 cm.
there are 3 lacerated wounds situated in this burnt D
area.
1. Lacerated wound - obliquely placed over left 4th
intercostals space close to lateral border of sternum
3 cm x 1 cm x 1 cm depth.
E
2. Lacerated wound over sternum close to lateral
border of sternum 1 cm x
cm x skin deep.
3. Lacerated wound medical to lacerated wound no. 2,
F
cm x cm over sternum. Skin deep.
No foreign body found in these wounds.
Roaster patch of burn mark over left hand with
blackening 3 cm x 1.5 cm. Dorsally and distally G
placed over metacarpal bone in relation to left index
finger."
15. According to the evidence of the autopsy surgeon,
the deceased died due to extensive haemorrhage, shock H
804
SUPREME COURT REPORTS
[2015] 4 S.C.R.
A and lung compression and the injuries were caused by
explosive substance. On a perusal of the testimony of PW13 and the injuries sustained by the deceased, there can be
no trace of doubt that the death was homicidal in nature
and was caused by explosive substance. It is manifest
B from the record that other witnesses had also suffered
injuries in the occurrence. As is noticed,
Ratta,
PW7, Rukmanibai, PW-14, Rambai, PW-15 and Heeralal, PW16,
who
are
related
to the deceased are the eye
witnesses and they have supported the prosecution version.
C All the witnesses have suffered injuries.
Heeralal, PW-16
as per the treating physician, had suffered blast injury over
dorsal aspect of right leg with blackening.
He was
advised for X-ray of right leg. Rukmanibai, PW-14, had
0
sustained an incised wound over the left hand Anteriorly
(Posterior). From the base of 5th metacarpal to head of
2"d metacarpal 30 x x skin deep muscles partially cut,
abrasion over the back of left wrist" x ", and abrasion over
the left leg lower anterior 1/3" x ". As per the injury report,
E injury no. 1 was caused by sharp object and the other
injuries were caused by hard and blunt object.
Ratta, PW7 had sustained abrasion over the left leg at tibial luburosity
1 " x 1". All the injuries had been caused by hard and blunt
object.
The other witnesses similarly had sustained injuries.
F The injuries on the body of the eye witnesses have been
proven by PW-12 and supported by MLC reports.
16.
Having noted the injuries suffered by the deceased
and the witnesses, it is to be examined what has been
G deposed by the prosecution witnesses that have been
given credence to by the High Court disagreeing with
the view expressed by the learned trial Judge. As has been
stated earlier, eye witnesses are Ratta, PW-7, Rukmanibai,
PW-14, Rambai, PW-15 and Heeralal, PW-16. As per
H the evidence of Ratta, PW-7,
the
accused
persons,
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
805
namely, Jodhan, Ramswaroop, Bherosingh @ Bhinua, A
Babbu @ Babula!, Natthu, Mangal Singh and Kanchhedi
came near his house and abused in filthy language.
The
deceased, Siria, came and objected about the abuses being
hurled by Mangal Singh who immediately threw a hand
made bomb over the chest of Siria who sustained injuries.
B
Jodhan threw a handmade bomb on Heeralal, PW-16, and
the other accused persons assaulted the injured persons.
As per the prosecution version, the villagers came on the
spot and caught hold of Mangal Singh and Babula! and
confined them in Siria's house.
Ratta lodged an FIR, C
Exhibit P-24, and brought injured Siria,
Heeralal and
Rukmanibai and others to the hospital. Siria @ Shriram was
declared brought dead by the Doctor and as has been
stated earlier, other injured persons availed treatment.
D
17. As per the evidence brought on record, the incident
had taken place near the house of the deceased and the
witnesses. The criticism that has been advanced against
these witnesses is to the effect they
are
interested
witnesses and hence, their version does not deserve E
acceptance is sans merit, for they are the witnesses who
were there at the spot and sustained injuries. They are
close relatives and they have stood firm despite incisive
cross-examination. There can be no cavil over the F
proposition
that when the witnesses are related and
interested, their testimony should be closely scrutinized,
but as we find, nothing has been elicited in the crossexamination to discredit their version.
On
a
studied
scrutiny of their evidence, it can be said with certitude that G
they have lent support to each other's version in all
material
particulars.
There
are
some
minor
contradictions and omissions which
have
been
emphasised by the learned trial Judge. The High Court
has treated
the
said
discrepancies
and
the minor H
806
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(2015] 4 S.C.R.
A contradictions as natural. That apart, their evidence also
find support from the medical evidence and the initial
allegations made in the FIR. The High Court has opined
that there is no inconsistency in their version and on a
perusal of the said evidence, we find there is absolutely
B no inconsistency which will compel a court of law to discard
their version. The learned trial Judge, as is evincible, has
attached immense emphasis
to such omissions and
contradictions which, according to the High Court, with
which we concur, are absolutely insignificant and trivial.
C It is also perceived that the learned trial Judge has given
notable stress on the fact that the accused persons and the
informant were in inimical terms due to non-voting by the
informant's party in their favour.
In our considered
0
opinion, in the present case, the same cannot be a ground
for not placing reliance on the eye witnesses who have
supported the prosecution version.
18.
It is emphatically submitted by Mr. Sharma, learned
counsel for the appellant that when the witnesses are
E interested witnesses and other independent witnesses had
turned hostile, the High Court should not have relied on
such witnesses and overturned the judgment of acquittal
by the learned trial Judge.
First, we shall deal with the
F credibility of related witnesses. In Dalip Singh v. State
of Punjabl81, it has been observed thus:-
G
"We are unable to agree with the learned Judges of
the High Court
that
the testimony of the two
eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If
H 8 AIR 1953 SC 364
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
807
I
it is grounded on the reason that they are closely A
related to the deceased we are unable to concur.
This is a fallacy common to many criminal cases and
one which another Bench of this Court endeavoured
to dispel in Rameshwar v. State of Rajasthanl91."
In the said case, it has also been further obseNed:-
B
"A witness is normally to be considered independent
unless he or she springs from sources which are
likely to be tainted and that usually means unless the C
witness has cause, such as enmity against the
accused, to wish to implicate him falsely. Ordinarily
a close [relative] would be the last to screen the real
culprit and falsely implicate an innocent person. It is
true, when feelings run high and there is personal cause o
for enmity, that there is a tendency to drag in an
innocent person against whom a witness has a
grudge along with the guilty, but foundation must be
laid for
such
a criticism and the mere fact of
relationship far from being a foundation is often a E
sure guarantee of truth."
19. In Hari Obula Reddy v. State of A.P.1101, the Court
has ruled that evidence of interested witnesses per se
cannot be said to be unreliable evidence. Partisanship
F
by itself is not a valid ground for discrediting or discarding
sole testimony. We may fruitfully reproduced a passage from
the said authority:-
"An invariable rule that interested evidence can never G
form the basis of conviction unless corroborated to
a material extent in material
particulars by
9 AIR 1952 SC54
10 (1981) 3 sec 675
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[2015] 4 S.C.R.
A
independent evidence. All that is necessary is that
the
evidence
of interested witnesses should be
subjected to careful
scrutiny and
accepted with
caution. If on such scrutiny, the interested testimony is
found
to
be intrinsically reliable
or
inherently
B
probable, it may, by itself, be sufficient, in the
circumstances of the particular case, to base a
conviction thereon."
20.
The principles that have been stated in number of
C decisions are to the effect that evidence of an interested
witness can be relied upon if it is found to be trustworthy
and credible. Needless to say, a testimony, if after careful
scrutiny is found as unreliable and improbable
or
suspicious it ought to be rejected.
That apart, when a
D witness has a motive or makes false implication, the Court
before relying upon his testimony should seek corroboration
in regard to material particulars. In the instant case, the
witnesses who have deposed against the accused persons
are
close
relatives and had suffered injuries in the
E occurrence. Their presence at the scene of occurrence
cannot be doubted, their version is consistent and nothing
has been elicited in the cross-examination to shake their
testimony.
There are some minor or trivial discrepancies,
F but they really do not create a dent in their evidence
warranting
to
treat
the
same
as
improbable
or
untrustworthy. In this context, it is requisite to quote the
observations made by the Court in State of Punjab v. Jagir
Singh1111:-
G
"A criminal trial is not like a fairy tale wherein one is
free to give flight to one's imagination and fantasy.
It concerns itself with the question as to whether the
H
11 (1974) 3 sec 277
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
809
accused arraigned at the trial is guilty of the crime A
with which he is charged. Crime is an event in real life
and is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt
of the accused charged with the commission of a
crime, the court has to judge the evidence by
B
the
yardstick
of probabilities, its intrinsic worth and
the animus of witnesses.
Every case in the final
analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should
be given to the accused, the courts should not at C
the same time reject evidence which is ex facie
trustworthy on grounds which are fanciful or in the
nature of conjectures."
21. Tested on the backdrop of aforesaid enunciation of D
law, we are unable to accept the submission of the learned
counsel for the appellant that the High Court has fallen into
error by placing reliance on the evidence of the said
prosecution witnesses. The submission that when other
witnesses
have turned hostile, the version
of these E
witnesses also should have been discredited does not
commend acceptance, for there is no rule of evidence that
the testimony of the interested witnesses is to be rejected
solely because other independent witnesses who have been
F
cited by the prosecution have turned hostile. Additionally,
we may note with profit that these witnesses had
sustained injuries and their evidence as we find is cogent
and reliable. A testimony of an injured witness stands
on
a higher pedestal than other witnesses.
In Abdul G
Sayeed v. State of M.P.1121, it has been observed that
the question of weight to be attached to the evidence
12 (2010) 1 o sec 2se
H
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SUPREME COURT REPORTS
[2015] 4 S.C.R.
A of a witness that was himself injured in the course of
the occurrence has been extensively discussed by this Court.
Where a witness to the occurrence has himself been injured
in the incident, the testimony of such a witness is generally
considered to be very reliable, as he is a witness that
B comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone. It has
been also reiterated that convincing evidence is required
to discredit an injured witness.
Be it stated, the opinion
C was expressed by placing reliance upon Ramlagan Singh
v.
State of Bihar[131,
Malkhan Singh
v.
State of
U.P·[141, Vishnu v. State
of Rajasthan[151 and Balraje
v. State of Maharashtra[151 and Jarnail Singh v. State
of Punjab[17J.
D
22. From the aforesaid summarization of the legal
principles, it is beyond doubt that the testimony of the
injured witness has its own significance and it has to be
placed reliance upon unless there are strong grounds for
E rejection of his evidence on the basis of
major
contradictions and inconsistencies. As has been stated, the
injured witness has been conferred special status in law
and the injury sustained by him is an inbuilt- guarantee
F of his presence at the place of occurrence.
Thus
perceived, we really do not find any substance in the
submission of the learned counsel for the appellant that
the
evidence
of the
injured witnesses have been
. G
13 (1973) 3 sec 881
14 (1975) 3 sec 311
15 (2009) 10 sec 477
16 (201 O) 6 sec 673
H
17 (2009) g sec 719
...
JODHAN v. STATE OF M.P.
[DIPAK MISRA, J.]
811
appositely discarded being treated as untrustworthy by the A
learned trial Judge.
23. One of the contentions that has been highlighted
by Mr. Sharma is that there was no justification on the part
of the High Court to convict the present appellant in aid
B
of Section 149 IPC, for he, as per the evidence of the
prosecution, had not done any overt act to cause any injury
to the deceased. The aforesaid submission assumes the
proposition that even if the factum of unlawful assembly is
proven by the prosecution, then also the Court is required C
to address the individual overt acts of each of the accused.
In Saladin v. State of U.P.1181, it was held that mere
presence in an assembly does not make such a person
member of an unlawful assembly unless it is shown that
he had done something or omitted to do something D
which would make him
a member of an
unlawful
assembly.
The observations recorded by the three-Judge
Bench in the said case was explained by a four-Judge
Bench in Masalti v. State of U.P.£191 wherein the larger
Bench distinguished the observations made in Baladin E
(supra) and opined that the said observations must be read
in the context of special facts of the case. The dictum
that has been laid down Masalti (supra) is to the following
effect:
F
" ... .it would not be correct to say that before a person
is held to be a member of an unlawful assembly, it
must be shown that he had committed some illegal
overt act or had been guilty of some illegal omission
in pursuance of the common object of the assembly. G
In fact, Section 149 makes it clear that if an offence
18 AIR 1956 SC 181
19 AIR 1965 SC 202
H
812
A
B
c
D
SUPREME COURT REPORTS
[2015) 4 S.C.R.
is committed by any member of an unlawful assembly
in prosecution of the common object of that assembly,
or such as the members of that assembly knew to
be likely to be committed in
prosecution of that
object, every person who, at the time of the committing
of that offence, is a member of the same assembly,
1s guilty of that offence; and that emphatically
brings out the principle
that
the
punishment
prescribed by Section 149 is in a sense vicarious and
does not always proceed on the basis that the
offence has been actually committed by every member
of the unlawful assembly."
24. In Bhargavan v. State of Kera1ac201, it has been
held:-
" ... It cannot be laid down as a general proposition of
law that unless an overt act is proved against a
person, who is alleged to be a
member of an
unlawful assembly, it cannot be said that he is a
E
member of an assembly. The only thing required is
that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which
fall within the purview of Section 141 IPC."
F
25. In this context, we may usefully reproduce
a
G
passage
from Ramachandran v. State of Kera1ac211:
"Thus, this Court has been very cautious in a catena
of judgments that where general allegations are made
against a large number of persons the court would
categorically scrutinise the evidence and hesitate to
convict the large number of persons if the evidence
20 (2004) 12 sec 414
H 21 (2011) g sec 257
JODHAN v: STATE OF M.P.
[DIPAK MISRA, J.]
813
available on record is vague. It is obligatory on the A
part of the court to examine that if the offence
committed is not in direct prosecution of the common
object,
it yet may fall under the second part of
Section 149 IPC, if the offence was such as the
members knew was likely to be committed.