# BHAGWAN JAGANNATH MARKAD & ORS v. STATE OF MAHARASHTRA

- **Citation:** [2016] 5 S.C.R. 452
- **Court:** Supreme Court of India
- **Decided:** 2016-10-04
- **Case number:** Criminal Appeal No.1516of2011
- **Bench:** V. Gopala Gowd.A, Adarsh Kumar Goel
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagwan-jagannath-markad-ors-v-state-of-maharashtra-31350
- **Pages:** 21

## Headnote

· .. ·.
Penal Code, 1860:
ss.147, 149, 302 rlw ss.149, 324 and 326 - Political enmity -
Murder of one and injuries to six persons - Acquittal of all accused
by trial court on the ground that material witnesses were related or
otherwise interested; that there was improvement in the version
initially given to police and version put forward before the court;
and inconsistency in the evidence of the witnesses in the manner of
assault and the weapon used - High court reversed the order of
acquittal in case of appellants - On appeal. held: Trial court had
adopted perverse approach in mechanically rejecting the entire
evidence comprising of injured eye witnesses by finding one or the
·other contradiction - The occurrence took place in broad day light
- One of the accused mentioned about the enmity on account of the
panchayat election - The said accused himself was injured which
proved his presence at the scene of the occurrence -
All the five
eye witnesses consistently named appellants (A-1 toA-7)- Appellants
(A-1 to A-7) were assigned specific role in assaulting the deceased
- Therefore, their conviction and sentence ulss.3021149 is not
interfered with - However, in case of A-JO and A-ll. benefit of
doubt is granted and they are acquitted since they were not named
by PW-11 and PW-18 and also PW-JO attributed specific role to Al to A-7 only.
s.149 - Vicarious liability of member of an unlawful assembly
- Held: An offence committed in prosecution of common object of
an unlawful assembly by one person renders members of unlawful
assembly sharing the common object vicariously liable for the
offence - When a crowd of assailants are members of an unlawful
assembly, it may not be possible for witnesses to accurately describe
the part played by each one of the assailants -
The common object
has to be ascertained from the acts and language of the members of
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BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
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MAHARASHTRA
the assembly and all the surrounding circumstances .
Evidence: Discrepancies and contradictions in evidence of
witnesses - Held: Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition
such as shock at the time of occurrence -Normal discrepancy does
not affect the credibility of a witness - Only when discrepancies are
so incompatible as to affect the credibility of the version of a witness,
the Court may reject the evidence - The discrepancies of trivial
nature could not be the basis of rejecting the evidence of eye
witnesses nor non-examination of some of the witnesses be a ground
to reject the prosecution case when injured eye witnesses were
examined.
Appeal: Appellate authority - Scope of interference -
Discussed.
Partly allowing the appeal, the Court
HELD: 1. It is accepted principle of criminal jurisprudence
that the burden of proof is always on the prosecution and the
accused is presumed to be innocent unless proved guilty. The
prosecution has to prove its case beyond reasonable doubt and
the accused is entitled to the benefit of the reasonable doubt.
The reasonable doubt is one which occurs to a prudent and
reasonable man. Section 3 of the Evidence Act refers to two
conditions - (i) when a person feels absolutely certain of a fact ..:.
"believe it to exist" and (ii) when he is not absolutely certain and
thinks it so extremely probable that a prudent man would, under
the circumstances, act on the assumption of its existence. The
doubt which the law contemplates is not of a confused mind but
of prudent man who is assumed to possess the capacity to
"separate the chaff from the grain". The degree of proof need
not reach certainty but must carry a high degree of probability.
[Para 18) [465-C-E)
2. While appreciating the evidence of a witness, the court
has to assess whether. read as a whole, it is truthful. In doing so,
the court has to keep in mind the deficiencies, drawbacks and
infirmities to find out whether such discrepancies shake the
truthfulness. Some discrepanc

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[2016] 5 S.C.R. 452
BHAGWAN JAGANNATH MARKAD & ORS.
v.
STATE OF MAHARASHTRA
(Crimina1Appea1No.1516of2011)
OCTOBER 04, 2016
[V. GOPALA GOWD.A AND ADARSH KUMAR GOEL, JJ.]
· .. ·.
Penal Code, 1860:
ss.147, 149, 302 rlw ss.149, 324 and 326 - Political enmity -
Murder of one and injuries to six persons - Acquittal of all accused
by trial court on the ground that material witnesses were related or
otherwise interested; that there was improvement in the version
initially given to police and version put forward before the court;
and inconsistency in the evidence of the witnesses in the manner of
assault and the weapon used - High court reversed the order of
acquittal in case of appellants - On appeal. held: Trial court had
adopted perverse approach in mechanically rejecting the entire
evidence comprising of injured eye witnesses by finding one or the
·other contradiction - The occurrence took place in broad day light
- One of the accused mentioned about the enmity on account of the
panchayat election - The said accused himself was injured which
proved his presence at the scene of the occurrence -
All the five
eye witnesses consistently named appellants (A-1 toA-7)- Appellants
(A-1 to A-7) were assigned specific role in assaulting the deceased
- Therefore, their conviction and sentence ulss.3021149 is not
interfered with - However, in case of A-JO and A-ll. benefit of
doubt is granted and they are acquitted since they were not named
by PW-11 and PW-18 and also PW-JO attributed specific role to Al to A-7 only.
s.149 - Vicarious liability of member of an unlawful assembly
- Held: An offence committed in prosecution of common object of
an unlawful assembly by one person renders members of unlawful
assembly sharing the common object vicariously liable for the
offence - When a crowd of assailants are members of an unlawful
assembly, it may not be possible for witnesses to accurately describe
the part played by each one of the assailants -
The common object
has to be ascertained from the acts and language of the members of
452
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
453
MAHARASHTRA
the assembly and all the surrounding circumstances .
Evidence: Discrepancies and contradictions in evidence of
witnesses - Held: Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition
such as shock at the time of occurrence -Normal discrepancy does
not affect the credibility of a witness - Only when discrepancies are
so incompatible as to affect the credibility of the version of a witness,
the Court may reject the evidence - The discrepancies of trivial
nature could not be the basis of rejecting the evidence of eye
witnesses nor non-examination of some of the witnesses be a ground
to reject the prosecution case when injured eye witnesses were
examined.
Appeal: Appellate authority - Scope of interference -
Discussed.
Partly allowing the appeal, the Court
HELD: 1. It is accepted principle of criminal jurisprudence
that the burden of proof is always on the prosecution and the
accused is presumed to be innocent unless proved guilty. The
prosecution has to prove its case beyond reasonable doubt and
the accused is entitled to the benefit of the reasonable doubt.
The reasonable doubt is one which occurs to a prudent and
reasonable man. Section 3 of the Evidence Act refers to two
conditions - (i) when a person feels absolutely certain of a fact ..:.
"believe it to exist" and (ii) when he is not absolutely certain and
thinks it so extremely probable that a prudent man would, under
the circumstances, act on the assumption of its existence. The
doubt which the law contemplates is not of a confused mind but
of prudent man who is assumed to possess the capacity to
"separate the chaff from the grain". The degree of proof need
not reach certainty but must carry a high degree of probability.
[Para 18) [465-C-E)
2. While appreciating the evidence of a witness, the court
has to assess whether. read as a whole, it is truthful. In doing so,
the court has to keep in mind the deficiencies, drawbacks and
infirmities to find out whether such discrepancies shake the
truthfulness. Some discrepancies not touching the core of the
case are not enough to reject the evidence as a whole. No true
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witness can escape from giving some discrepant details. Only
when discrepancies are so incompatible as to affect the credibility
of the version of a witness, the court may reject the evidence.
Section 155 of the Evidence Act enables the doubt to impeach
the credibility of the witness by proof of former inconsistent
statement. Section 145 of the Evidence Act lays down the
procedure for contradicting a witness by drawing his attention to
the part of the previous statement which is to be used for
contradiction. The former statement should have the effect of
discrediting the present statement but merely because the latter
statement is at variance to. the former to some extent, it is not
enough to be treated as a contradiction. It is not every discrepancy
which affects creditworthiness and trustworthiness of a witness.
A witness being a close relative is not enough to reject his
testimony if it is otherwise credible. A relation may not conceal
the actual culprit. The evidence may be closely scrutinized to
assess whether an innocent person is falsely implicated.
Mechanical rejection of evidence even of a 'partisan' or
'interested' witness may lead to failure of justice. It is well known
that principle "falsus in uno, falsus in omnibus" has no general
acceptability. On the same evidence, some accused persons may
be acquitted while others may be convicted, depending upon the
nature of the offence. The court can differentiate the accused
who is acquitted from those who are convicted. A witness may be
untruthful in some aspects but the other ·part of the evidence
may be worthy of acceptance. [Para 19] [465-F-H; 466-A-D]
3. An offence committed in prosecution of common object
of an unlawful assembly by one person renders members of
unlawful assembly sharing the common object vicariously liable
for the offence. The common object has to be ascertained from
the acts and language of the members of the assembly and all the
surrounding circumstances. It is to be assessed keeping in view
the nature of the assembly, arms carried by the members and the
behavior of the members at or near the scene of incident. Sharing
of common object is a mental attitude which is to be gathered
from the act of a person and result thereof. [Para 21] [466-G;
467-A]
4. The trial court has adopted perverse approach in
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
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MAHARASHTRA
rejecting the entire evidence comprising of injured eye witnesses
when one person has been killed and six others have been injured.
Except for some contradictions, the version of eye witnesses PWs
10, 11, 15, 12 and 18 is consistent. There is rio reason to reject
their evidence. Of course, the court has to be cautious in
appreciating evidence and rule out exaggeration. The version of
AS is not probable and mere fact that injury on him is not
explained is not enough to reject the prosecution version. In
such a case, the Court is to examine whether evidence is
trustworthy, Non-explanation of injuries on accused is an
important circumstance which requires the court to satisfy itself
that true version is not suppressed and whether defence version
is probable. This by itself is not enough to reject the prosecution
case. -~ince rejection of eye witness account is uncalled for, other
reasons given by trial court are not sufficient to reject the
prosecution case. Even if recoveries or Chemical Analyzer's
report are disregardedly the same have only corroborative value,
prosecution case is established by credible eye witness account.
Mere fact that some of the witnesses have not been examined is
also of no consequence when credible evidence to prove the case
has been produced. Thus, the High Court rightly reversed the
trial Court judgment. [Paras 22, 23, 25) [467-H; 468-A, C-E; 469D-E]
5. If the appellate court is to reverse th~ judgment of the
trial court, the reasoning of the trial court has to be adverted to
and reversal of acquittal is permissible only if the view of the trial
court is not only erroneous but also unreasonable and perverse.
At the same time, the appellate court has full power to review
the evidence and to reach at its own conclusion. The appellate
court can set aside the acquittal if the acquittal is not justified. Of
course, the appellate court has to consider the fact that the trial
court has the benefit of seeing the witnesses in the witness box
and the presumption of innocence is not weakened by the
acquittal. If two reasonable conclusions can be reached, the
appellate court should not disturb the finding of the trial court.
In the present case, the High Court has followed the above
principles. [Para 28] [470-F-H; 471-A)
6. When a crowd of unlawful assembly commits an offence,
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SUPREME COURT REPORTS
[2016) 5 S.C.R.
it is often not possible to accurately describe the part played by
each of the assailants. Though the appreciation of evidence in
such cases may be a difficult task, the court has to perform its
duty of sifting the evidence carefully. In the instant case, all the
five eye witnesses have named Al to A7. Other accused have
not been named by PWll and PW18. Benefit of doubt is granted
to AlO and All for the reason that they have not been named by
PWll and PW18 and also for the reason that PWlO has attributed
specific role only to Al to A 7. But as far as Al to A 7 are concerned
(A2 has already died) all the five witnesses have consiste.ntly
named them. Al to A 7 have been assigned specific role in
assaulting the deceased. Their conviction and. sentence under
Section 302/149 of the IPC has to be upheld. [Paras 31, 32] [472A·D]
Masalti _v. State qf U.P. (1964) 8 SCR 133 - relied on.
Padam Singh v. State of U.P. 1999 (5) Suppl. SCR 59 :
(2000) 1 SCC 621; Devatha Venkataswamy v. Public
Prosecutor, High Court of A.P. (2003) 10 SCC 700;
Narendra Singh v. State of MP. 2004 (3) SCR 1148 :
(2004) 10 SCC 699; Prasanna Das v. State q( Orissa
(2004) 13 SCC 30; Majjal v. State of Haryana (2013)
6 SCC 798; Lalita Kumari v. Govt. qf U.P. 2013 (14)
SCR 713 : (2014) 2 SCC l; Baby alias Sebastian v.
Central Inspector of Police (2016) 7 Scale 444;
Damodar v. State qf Rqjasthan 2003 (3) Suppl. SCR
904 : (2004) 12 SCC 336; Mano Dutt & Am: v. State
of Uttar Pradesh 2012 (3) SCR 686 : (2012) 4 SCC
79; Sm1jeev v. State qf Haryana 2015 (2) SCR 210 :
(2015) 4 SCC 387; A. Shankar v. State qf Karnataka
2011 (6) SCR 999 : (2011) 6 SSC 279; State of
Karnataka v. Suvarnamma & Am: 2014 (10) SCR 778
: (2015) 1 SCC 323; Bava Hqjee Hamsa v. State qf
Kera/a (1974) 4 SCC 479; Patai Alias Krishna Kumar
v. State U.P. 2010 (3) SCR1135 : (2010) 4 SCC 429;
Ravishwar ManJ.hi v. State of Jharkhand 2008 (17) SCR
420 : (2008) 16 SCC 561; T.T. Antony v. State c!( Kera/a
2001 (3) SCR 942 : (2001) 6 SCC 181; Vijayee Singh
v. State of U.P. 1990 (2) SCR 573 : (1990) 3 SCC 190;
Leela Ram v. State of Haryana 1999 (3) Suppl. SCR
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
457
MAHARASHTRA
435 : (1999) 9 SCC 525; GanJ?adhar Behera vs. State
of Orissa 2002 (3) Suppl. SCR 183 : (2002) 8 SCC
"381; Takhaji Hiraji v. Thakore Kubersing Chamansing
(2001) 6 SCC 145; Mano Dutt v. State qf U.P. 2012 (3)
SCR 686 : (2012) 4 SCC 79; Anand Mohan v. State of
Bihar 2012 (10) SCR 1: (2012) 7 SCC 225·_ referred
to.
Case Law Reference
1999 (5) Suppl. SCR 59
referred to
(2003) 10 sec 700
referred to
2004 (3) SCR 1148
referred to
(2004) 13 sec 30
(2013) 6 sec 798
2013 (14) SCR 713
(2016) 7 Scale 444
2003 (3 ) Suppl. SCR 904
2012 (3) SCR 686
2015 (2) SCR 210
2011 (6) SCR 999
2014 (10) SCR 778
(1974) 4 sec 479
2010 (3) SCR1135
2008 (17) SCR 420
20Ql. (3) SCR 942
19~Q (2) SCR 573
1999 (3) Suppl. SCR 435
2002 (3) Suppl. SCR 183
(2901) 6 sec 145
20lZ (3) SCR 686
2012 (10) SCR 1
referred to
referred to
referred to
referred to
referred to
'referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
referred to
Para 14
Para 14
Para 14
Para 14
Para 14
· Para 14
Para 14
Para 15
Para 15
Para 15
Para 15
Para 15
Para 15
Para 15
Para 15
Para 15
Para 18
Para 19
Para 19
Para23
Para 23
Para26
(1?64) 8 SCR 133
relied on
Para 31
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1516of2011.
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From the Judgment and Order dated 20.04.2007 of the High Court
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[2016] 5 S.C.R.
of Judicature of Bombay in Criminal Appeal No. 533 ofl 990.
H. N. Nagamohan Das, Sushil Kumar Jain, Sr. Advs., Shirish K.
Deshpande, Mohit Gautam, D. M. Nargolkar, Shivaji M. Jadhav,
Anshuman Animesh, Ms. Saksfii Kaushik, Abhinav Gupta, Nishaiit
Ramakantrao Katneshwarkar,-Sushil Karanjkar, Dharmendra Kishor, K.
N. Rai, Advs.for the appearing parties.
The Judgments of the Court was delivered by
ADARSH KUMAR GOEL, J. 1. The appellants are aggrieved
by the judgment and order dated 20'h April, 2007 passed by the High
Court of Judicature at Bombay in Criminal Appeal No.533 of 1990
whereby they have been convicted under Sections 147, 149, 302 read
with Sections 149, 324and 326 of the Indian Penal Code and sentenced
to undergo imprisonment for life, apart from other lesser sentences which
are to run concurrently and payment of fine, setting aside their acquittal
by the trial court.
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2.
Originally there were 16 accused namely:-
!)
Bhagwan Jagannath Markad,
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2)
Janardhan Rambhau Tate,
3)
Dada Sayyednoor Mulani,
4)
Sayyed Sayyadnoor Mulani,
5)
Sandi pan Sakhara Koyale,
6)
Nivrutti Sakharam Koyale,
7)
Krishna Sakharam Koyale,
8)
Shailendra Sandi pan Koyale,
9)
Chandrakant Shankar Markad,
I 0)
Babu Rama Berad,
I I)
Balu Naradeo Berad,
12)
Manik Rama Berad,
13)
Pandurang Babu Arade,
14)
Sadashiv Shahu Arade,
15)
Kisan Rama Berad, and
16)
Appa Shabu Arade.
3. The trial court acquitted all the accused. The High Court upheld
acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16.
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4. Accused No.2 is reported to have died. Thus, eight appellants
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
MAHARASHTRA [ADARSH KUMAR GOEL, J.]
are before this Court. They are Al Bhagwan Jagannath Markad; A3
Dada Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; AS Sandipan
Sakhara Koyale; A6 Nivrutti Sakharam Koyale; A 7 Krishna Sakharam
Koyale; AlO Babu Rama Berad and All Batu Naradeo Berad
respectively.
5. According to the prosecution, one Bibhishan Vithoba Khadle
has been murdered and six persons have been injured being Indubai,
PWI I Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PWIS
Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath
Koyale in the attack by the accused.
6. As per the prosecution version recorded in the FIR lodged by
PW 10 Satyabhama, her husband PW 11 Dagadu Gopinath Koyale, fatherin-law Gopinath Koyale, deceased Bibhishan Vithoba Khadle, PW18
Chaturbhuj Khade, PW 15 Bibhis)lan Kshirsagar along with others were
present in their house on the date of the occurrence on J31h November,
1988 at 12.00 noon when all the accused came there to attack her husband.
Accused No.3 Dada Sayyednoor Mulani put the house on fire on account
of which everyone came out. Accused Nos. I and 2 Bhagwan Jagannath
Markad and Janardhan Rambhau Tate attacked Dagadu with swords
on hands, legs and knees. Accused No.3 Dada Sayyednoor had barchi.
Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5
Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti
Sakharam Koyale had barchi. Accused No. 7 Krishna Sakharam Koyale
had axe. Accused No. I 0 and 11 Babu Rama Berad and Batu Naradeo
Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks.
·PW 11 Dagadu fell down on account of beating and became unconscious.
Accused No.3 Dada Sayyednoor, accused No.4 S~yyed Sayyadnoo.r
Mulani, accused No.5 Sandipan Sakharam Koyale, accused No.6 Nivrutti
Sakharam Koyale, accused No.7 Krishna Sakharam Koyale caused
beating to the deceased Bibhishan Vithoba Khade. Accused Nos. I and
2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also
attacJ<ed deceased Bibhishan Vithoba Khadle. The accused then beat
PW 11 Dagadu Gopinath Koyale and PWI 8 Chaturbhuj Khade with sticks
and swords. The occurrence was a result of the enmity on account of
party faction in Panchayat and Co-operative Society elections.
7. In the statement before the court, apart from repeating above
version, PW 10 Satyabhama further stated that a bullock cart was arranged
to carry injured Dagadu and the deceased Bibhishan Vithoba Khade
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[2016] 5 S.C.R.
upto the main road and thereafter they were carried in a jeep. On the
way, the FIR was lodged at 5.30 p.m. and thereafter the injured and the
deceased were taken to the PHC and then to the civil hospital. PWI 1
Dagadu remained in the hospital for three to four months and thereafter
in private hospital for two to three months.
8. After registering the FIR, investigation was carried out and
charge-sheet was submitted before the Court. The accused qenied the
charge. Accused No.5 Sandipan Sakharam, however, stated that he
was called by Dagadu through deceased Bibhishan Vithoba Khade to
his place where PW!8 Chaturbhuj Khade and PW12 Kemath Koyale
were also present. PWl 1 Dagadu told him that he should not contest
the election. The said accused, however, replied that PWI 1 Dagadu
had been Sarpanch for I 0-12 years and thus, accused should be allowed
to become Sarpanch. This led to inter se assault between PW 11 Dagadu
and deceased Bibhishan Vithoba Khade and the said accused was also
assaulted by PW 11 Dagadu.
9. The prosecution led evidence comprising of medical evidence,
recovery of material objects, eye-witnesses and the investigation. We
will make reference only to the relevan.t evidence on record. PW4 Dr.
Shravan Gavhane conducted the post mortem on the body of the
deceased and found seven injuries. Injury No. I was on the head which
was found to be fatal. Injuries Nos. 2 to 7 were said to be with hard and
blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined
the injured PW! I Dagadu and found 10 injuries which included eight
incised wounds, two injuries on Gopinath Mahadev Koyale, one contused
wound on PWI 8 Chaturbhuj Khade, three injuries on Murlidhar Yeshu
Kshirsagar. He also found one incised wound on the right forearm of
accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan
PWl5.
I 0. The prosecution relied upon the eye witness account rendered
by PWIO Satyabhama, PW!! Dagadu, PW15 Bibhishan Kshirsagar,
PW18 Chaturbhuj Khade, PWl2 Kernath Koyale. PW2 Shivaji Fuge,
PW3 Yuvraj Koyale, PW7 Bhimrao and PW9 Bhimrao Dhavale are
witnesses to the recovery in pursuance of the statements under Section
27 of the Evidence Act. The Chemical Analyser's report was also
produced about the blood group on some of the recovered articles.
11. The trial Court rejected the prosecution version inter alia for
following reasons :
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
461
MAHARASHTRA [ADARSH KUMAR GOEL, J.]
(i)
Recovery was not admissible as the location of the articles
recovered was already known;
(ii)
There was inordinate delay in sending the case property to
the Chemical Analyser and possibility of tempering was not
ruled out;
(iii)
There was inconsistency in the evidence of PW s Kernath
Koyale, Bibhishan Vithoba Khadle and Chaturbhuj Khade
in the manner of assault and the weapon used;
(iv)
The prosecution did not examine Indubai and Gopinath;
(v)
Motive was not established as there was no immediate
election of the Panchayat or of the Cooperative Society;
(vi)
There was improvement in the version initially given to the
police and the version put forward before the Court; and
(vii)
All the material witnesses arr. either related or otherwise
interested and their testimony could not be accepted in
absence of corroboration in material particulars.
12. The High Court observed that acquittal by the trial court was
based on omissions and contradictions which were not material and did
not affect the veracity of the prosecution case. Thus, the trial Court
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adopted a "totally perverse approach". It was observed :
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'"32, It is true that there are contradictions and omissions but
none of them. according to us, is vital or material. They are
regarding the particulars. When 718 persons are injured and
assailants are about 16, then these omissions are bound to be
there. They are natural omissions and contradictions and the
f
most important fact that wipes out the effect of these
contradictions and omissions is that many persons from the
side of complainant had received injuries, so also accused
No.5.
33. This is not a case of exercising the right of self defence of
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the accused. No such plea was raised before us nor from the
case of the prosecution any such plea can be permitted to be
raised directly or indirectly by the accused. The accused are
aggressors. They have launched attack while persons from
the complainant's side had assembled to celebrate their Diwali.
Vasti was set to fire. Bibhishan Khade died in the said attack
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and many persons from the side of complainant had received
injuries. The assault was by deadly weapons like sword, barchi,
knife, gupti and sticks. This was, therefore, not a case of clear
cut acquittal of all the 16 accused.
No farther corroboration
is necessary. investigation is prompt and swift and even if
other evidence regarding recovery of incriminating articles
is not considered, the oral evidence and ocular evidence of
the aforesaid witnesses i.e. P. W. JO, 11, 12, 13, 15 and 18 and
others discussed by us including those two doctors folly prove
the prosecution case. The findings of the trial Court are totally
perverse and therefore this appeal is required to be allowed,
but to what extent and against which of the accused is the
question. The close scrutiny of the evidence of eye witnesses
particularly P. W.10, 11, 15 and 18 shows that P. W. JO has
implicated accused Nos.1,2,3,5,6,7, JO and 11. P.W.11 has
implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11,
accused No.3 set fire to the Vasti. P. W.15 has implicated
accused Nos.1,2,3,4,5,6, JO and 11. P.W. 18 has implicated
accused Nos.J,2,3,5,6, 7 and according to him, accused No.3
set fire to the Vasti. Presence of accused No.5 Sandipan at
the spot is fully proved, apart from other evidence, because
of the injuries suffered by him. There are in all 16 accused.
Considering the aforesaid evidence, this appeal against
ac;quittal has to be allowed in respect of accused
Nos.J,2,3,4,5,6,7, JO and 11, and their acquittal is required
to be set aside. So far as accused Nos.8,9,12,13,14,15 and
16 are concerned, their acquittal is required to be upheld.
Undoubtedly, the accused Nos.1 to 7 and 10 and 11 had
"'P formed an unlawful assembly with a common object qf
launching an assault. The house or vasti of Dagadu was set
to fire. In the attack Bibhishan Khade died and P. W.11, 15
and 18 and others received injuries by deadly weapons.
Therefore, for causing death of Bibhishan Khade the accused
are required to be held guilty under Section 302 read with
Section 149 of the Indian Penal Code and for causing severe
injuries to the aforesaid prosecution witnesses and others,
they are required to be held guilty under Sections 324 and
326 rlw 149 of the Indian Penal Code. So far as offence
under Section 436 of the Indian Penal Code is concerned,
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
463
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the evidence of the prosecution witnesses is not consistent
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and, therefore, nobody can be convicted under that section. "
13. We have heard learned counsel for the appellants on the one
hand as also learned counsel for the State and the complainant on the
other and with their assistance, gone through the material on record.
14. Main contention raised on behalf of the appellants is that the
judgment of acquittal rendered by the trial Court was certainly a possible
view on appreciation of evidence and the High Court could not reverse
the same as there was no perversity. The High Court has not fully
discussed the evidence nor dealt with the reasons recorded by the trial
Court for rejecting the prosecution version. There was no explanation
for the injury suffered by accused No.5. There are omissions and
contradictions in the version of the prosecution witnesses. In the first
version given by PW 12, the accused have not been named and instead
ofrecording the said version as FIR, it was on belated statement of PW
I 0 which was an improved version that the FIR was registered. The
-omissions in the statement made to the police amount to contradictions
as per explanation to Section 162 Cr.P.C. Thus, the evidence of eye
witnesses PWs I 0, 11, 12, 15 and 18 has been rightly rejected by the trial
court and could not be relied upon by the High Court. Since there was
enmity between the parties, there was possibility of exaggeration and
false implication and it was not safe to convict the appellants. It was
also submitted that since the incident was 28 years old, some of the
appellants have become very old and ought not to be convicted-at this
stage. Reliance has been placed on the judgments of this Court in Padam
Singh versus State of U.P.1, Deval/ta Venkatasw"my versus Public
Prosecutor, High Court of A.P.1, Narendm Singh versus State of
M.P. 3, Prasanna Das versus State of Orissa', Majja/ versus State of
Haryana5, Lalita Kumari versus Govt. of U.P. 6, and Baby alias
Sebastian versus Central Inspector of Police7•
15. On the other hand, learned counsel for the State and the
complainant, supported the judgment of the High Court and pointed out
1 (2000) 1 sec 62 t
2 (2003) 1 o sec 100
3 (2004) IOSCC 699 •
4(2004) 13 sec 30
'(2013) 6 sec 798
'(2014)2sec1
7 (2016) 7 Scale 444
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that the reasons for acquittal by the trial court were perverse and the
High Court has duly dealt with the said reasons and found them to be
perverse. There is consistent evidence of injured eye witnesses which
could not be altogether brushed aside. Contradictions and omissions
which are not vital or material are bound to be there in every case. The
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same did not affect the credibility of the main version that the accused
. caused the death of the deceased and injuries to six persons on the
complainant side. The accused formed unlawful assembly and action of
even one accused in prosecution of common object of the unlawful
assembly or which was known to likely to be so committed was action
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ofall the accused in law. It was not necessary to prove individual role of
different accused. The information by PW 12 on telephone was cryptic
and could not be treated as FIR. Therein though name of accused No.5
was mentioned and it was further stated that he was accompanied by
others also, other details were not mentioned. This was not at par with
the statement to be recorded by the officer in charge of the Police Station
under Section 154 CrPC which can be treated as FIR. Thus, the
telephonic message could not be treated as FIR. The statement of PW
I 0 made in the Police Station has rightly been treated as FIR. The said
statement was prompt and could not be treated as an improved version.
The statement was corroborated by sworn testimony of the author of
the FIR before the Court which has been corroborated in all material
particulars by fourother injured witnesses. Thus, the evidence on record
fully warranted conviction of the appellants and no interference was
called for by this Court. Reliance has been placed on the judgments of
this Court in Damodar versus State of Rajastlran8, Mano Dutt &
Anr. Versus State of Uttar Pradesh 9, Sanjeev versus State of
Haryana10, A. Slrnnkar versus State of Karnataka 11, State of
Karnataka versus Suvarnamma & Anr. 11, Bava Hajee Hamsa
versus State of Kerala 13, Patai Alias Krishna Kumar versus State
U.P. 14, Ravis/1war Manjlti versus State of Jharkhand15, T.T. Antony
versus State of Kerala16•
• (2004) 12 sec 336
• <2012) 4 sec 79
'" <2015) 4 sec 387
II (2011) 6 SSC 279
12 (2015) 1sec323
"(1974) 4 sec 479
"(20 IO) 4 sec 429
"(2008) 16 sec 561
16 (2001)6SCC 181
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
MAHARASHTRA [ADARSH KUMAR GOEL, J.]
16. We have given due consideration to the rival submissions.
The question for consideration is whether the High Court was justified
in reversing the acquittal of the appellants on the basis of evidence
available on record.
17. Before considering this aspect with reference to the evidence
on record, we may advert to the settled principles of law dealing with
the issues arising in the present case. The approach to be adopted by
the court generally in appreciating the evidence in a criminal case as
also the approach of the appellate court is discussed in several decisions
of this Court, some of which have been cited by learned counsel for the
parties.
18. It is accepted principle of criminal jurisprudence that the burden
of proof is always on the prosecution and the accused is presumed to be
innocent unless proved guilty. The prosecution has to prove its case
beyond reasonable doubt and the accused is entitled to the benefit of the
reasonable doubt. The reasonable doubt is one which occurs to a prudent
and reasonable man. Section 3 of the Evidence Act refers to two
conditions -(i) when a person feels absolutely certain of a fact-"believe
it to exist" and (ii) when he is not absolutely certain and thinks it so
extremely probable that a prudent man would, under the circumstances,
act on the assumption of its existence. The doubt which the law
contemplates is not of a confused mind but efprudent man who is
assumed to possess the capacity to "separate the chaff from the grain".
The degree of proof need not reach certainty but must carry a high ·
degree ofprobability17•
19. While.appreciating the evidence of a witness, the court has to
assess whether read as a whole, it is truthful. In doing so, the court has
to keep in mind the deficiencies, drawbacks and infirmittes to find out
whether such discrepancies shake the truthfulness. Some discrepancies
not touching the core of the case are not enough to reject the evidence
as a whole. No true witness can escape from giving some discrepant
details. Only when discrepancies are so incompatible as to affect'the
credibility of the version of a witness, the court may reject the evidence.
Section 155 of the Evidence Act enables the doubt to impeach the
credibility of the witness by proof of former inconsistent statement.
Section 145 of the Evidence Act lays down the procedure for contradicting
a witness by drawing his attention to the part of the previous statement
"Vijayee Singh vs. State ofU.P.- (1990) 3 SCC 190, Parasl8, 28-30
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which is to be used for contradiction. The former statement should
have the effect of discrediting the present statement but merely because
the latter statement is at variance to the former to some extent, it is not
enough to be treated as a contradiction. It is not every discrepancy which
affects creditworthiness and trustworthiness of a witness. There may
at times be exaggeration or embellishment not affecting credibility. The
court has to sift the chaff from the grain and find out the truth. A
'statement may be partly ·rejected or partly accepted 18 • Want of
independent witnesses or unusual behavior of witnesses of a crime is
not enough to reject evidence. A witness being a close relative is not
enough to reject his testimony ifit is otherwise credible. A relation may
not conceal the actual culprit. The evidence may be closely scrutinized
to assess whether an innocent person is falsely implicated. Mechanical
rejection of evidence even of a 'partisan' or 'interested' witness may
lead to failure of justice. It is well known that principle "falsus in uno,
falsus in omnibus" has no general acceptability19• On the same evidence,
some accused persons may be acquitted while others may be convicted,
depending upon the nature of the offence. The court can differentiate
the accused who is acquitted from those who are convicted. A witness
may be untruthful in some aspects but the other part of the evidence
may be worthy of acceptance. Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition
such as shock at the time of occurrence and as such the normal
discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in
miscarriage of justice. Letting the guilty escape is not doingjustice. A
Judge presides over the trial not only to ensure that no innocent is punished
but also to see that guilty does not escape.20
21. An offence committed in prosecution of common object of an
unlawful assembly by one person renders members ofunlawful assembly
sharing the common object vicariously liable forthe offence. The common
object has to be ascertained from the acts and language of the members
of the assembly and all the surrounding circumstances. It can be gathered
from the course of conduct of the members. It is to be assessed keeping
in view the nature of the assembly, arms carried by the members and
18 Leela Ram vs. State of Haryana ( 1999) 9 SCC 525, paras 9 - 13
"Gangadhar Behera vs. State ofOrissa (2002) 8 SCC 381-para15
H
''' Gangadhar Behera (supra), para 17
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
467
MAHARASHTRA [ADARSH KUMAR GOEL, J.]
the behavior of the members at or near the scene ofincident. Sharing of
common object is a mental attitude which is to be gathered from the act
of a person and result thereof. No hard and fast rule can be laid down
as to when common object can be inferred. When a crowd of assailants
are members of an unlawful assembly, it may not be possible for witnesses
to accurately describe the part played by each one of the assailants. It
may not be necessary that all members take part in the actual assault~
1
•
In Gangadliar Beliera (supra), this Court observed :
"25. The other plea that definite roles have not been ascribed
to the accused and therefore Section 149 is not applicable, is
untenable. A four-Judge Bench of this Court in Masalti case
[AIR 1965 SC 202} observed as follows:
"15. Then it is urged that the evidence given by the witnesses
conforms to the same uniform pattern and since no specific
part is assigned to all the assailants, that evidence should
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not have been accepted. This criticism again is not well
founded. Where a crowd of assailants who are members of D
an unlawful assembly proceeds to commit an offence of
murder in pursuance of the common object of the unlawful
assembly, it is often not possible for witnesses to describe
accurately the part played by each one of the assailants.
Besides, if a large crowd of persons armed with weapons
assaults the intended victims, it may not be necessary that all
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of them have to take part in the actual assault. Jn the present
case, for instance, several weapons were carried by different
members of the unlawful assembly, but it appears that the
guns were used and that was enough to kill 5 persons. Jn
such a case, it would be unreasonable to contend that because
the other weapons carried by the members of the unlawful
assembly were not used, the story in regard to the said weapons
itself should be rejected. Appreciation of evidence in such a
complex case is no doubt a difficult task; but criminal courts
have to do their best in dealing with such cases and it is their
duty to sift the evidence carefully and decide which part of it
is true and which is not. "
22. We have referred to the above settled principles as the trial
court has adopted perverse approach in rejecting the entire evidence
21 Gangadhar Behera (supra), paras 22-24
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comprising of injured eye witnesses when one person has been killed
and six others have been injured. The trial court ignored the above
principles by mechanically rejecting the evidence ofall the witnesses by
finding one or the other contradiction. The occurrence has taken place
in broad day light. One of the accused himself mentioned about the
enmity on account of the panchayat election. The said accused himself
is injured which proves his presence at the scene of the occurrence.
This version further shows the presence of deceased and the injured.
But his version fails to explain as to why the deceased would have been
killed by PW! I when the deceased was the messenger of PW! I himself.
Except for some contradictions, the version of eye witnesses PW s I 0, .·
11, 15, 12 and 18 is consistent. There is no reason to reject the said
version. Of course, the court has to be cautious in appreciating evidence
and rule out exaggeration.
23. We may also note that version of AS is not probable and mere
fact that injury on him is not explained is not enough to reject the
prosecution version. In such a case, the Court is to examine whether
evidence is trustworthy. This aspect has been repeatedly examined by
this Court and settled law is that non explanation of injuries on accused
is an important circumstance which requires the court to satisfy itself
that true version is not suppressed and whether defence version is
probable~
2
· 23·
2~. This by itself is not enough to reject the prosecution
case.
24. To demonstrate that the approach of the trial court is outrightly
perverse, some of the observations are put in :
" But in general terms she has stated that accused came with
weapons. Similarly it is admitted by her during the crossexamination that she has not stated assault by particular
accused on the person of Bibhishan Khade. But she has stated
in general terms that Bibhishan was assaulted by the accused.
Moreover it is to be noted that she has admitted that Dagadu
and Bibhishan were assaulted by said weapons like cutting a
wood by an axe, sword and barchi. But there is 110 piercing
wound or cut injury on the person of deceased Bibhishan as
well as Dagadu.
22 Vijayee Singh (supra), para 9
23(200 I) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing
,. (2012) 4 sec 79-Mano Dutt VS. State of U.P.
BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF
MAHARASHTRA [ADARSH KUMAR GOEL, J.]
Moreover it is in her complaint that she had been to the vasti
of Murlidhar and Bibhishan Kshirsagar to hand over the
break fast to Dagadu. But the evidence of PWs and Dagadu
and other eye witnesses disclose that they all had been to the
house of Murlidhar Kshirsagar for Diwali snacks and there
Dagadu invited for meals in the noon time. Hence, all the
eye-witnesses mentioned above had been to the vasti of
Dagadu.
But P. W. Dagadu, Kernath, P. W. Bibhishan
Kshirsagar and P. W. Chaturbhuj disclose that they were called
for the Diwali snacks and not for meals in the house of
Dagadu. It is to noted that if Dagadu was invited for Diwali
snacks in the house of Murlidhar kshirsagar then there was
no necessity to take breakfast for Dagadu to the house of
Murlidhar Kshirsagar. Considering all the aspects the
evidence of the complaint cannot be accepted. "
25. Similar is the appreciation by the trial court of other witnesses.
Since rejection of eye witness account is uncalled for, other reasons
given by trial court are not sufficient to reject the prosecution case.
Even if recoveries or Chemical Analyzer's report are disregardedly the
same have only corroborative value, prosecution case is established by
credible eye witness account.