1999 Supreme(SC) 1142

1999(9) Supreme 310
SUPREME COURT OF INDIA
(From Allahabad High Court)
G.B. Pattanaik and N. Santosh Hegde, JJ.
Kamaksha Rai & Ors. -Appellants
versus
State of U.P. -Respondents
Criminal Appeal No. 323 of 1994
With
Criminal Appeal No. 114 of 1996
Decided on 1-10-1999
Counsel for the Parties :
For the Appellants : U.R. Lalit, Sr. Advocate, S.M. Rai, S.N. Singh, B.M. Sharma, T.N. Singh, Advocates.
For the Respondent for State of U.P. : Anis Ahmad Khan, Advocate for A.S. Pundir, Advocate.

Headnote:(i) Indian Penal Code, 1860-Section 302 r/w 149 and 436 r/w 149-Arson and murder-64 persons arraigned as accused-Accused persons belong to upper caste-Prosecution party members of Harijan Community-Allegation of forcibly taking deceased persons and causing their death-Subsequently accused persons along with 500 to 700 persons indulged in assaulting members of Harijan, looting and setting ablaze houses/huts of Harijans-Five persons convicted u/s 302/149-High Court acquitting accused charged with offence u/s 302/149 but convicting them u/s 147, 323, 325, 429 and 436 r/w Section 149-High Courts view genesis of incident and circumstances in which murder committed not established and murder might have been in course of fight between two groups in which two from side of accused party also came to be murdered-Conclusion of High Court warranted no interference-High Courts Judgment upheld.

       Held : The reasoning of the High Court was that the incident leading to the murders of Radhey Shyam and Banarsi has not been established by the prosecution, as alleged by it. From the evidence on record the prosecution has failed to explain the circumstances in which Ram Chander Rai and Mangla Rai came to be murdered. The motive attributed in the present case having a direct bearing on the incident which led to the death of Ram Chander Rai and Mangla Rai, it cannot be said that the genesis of the attack has been properly brought forth in the prosecution case. The view taken by the High Court that both the sets of murder might have been the result of a fight between two groups of persons in the village which the investigating agency has not been able to unearth and present to the Court in its true perspective/sequence, cannot be said to be perverse and unreasonable so as to call for interference by this Court in these appeals. We are also of the opinion that taking into consideration all facts and circumstances of the case, the decision of the High Court to alter the sentence awarded by the trial Court by reducing the same from 5 years to 3 years RI for offence under Section 429 read with Section 149 and from 10 years to 5 years R.I. for offence under Section 436 read with Section 149 IPC respectively cannot also be said to be erroneous and unreasonable so as to call for our interference. In the said view of the matter, the appeal of the State fails and is hereby dismissed. (Para 21)

       (ii) Criminal Trial-Appreciation of evidence-In case of arson and murder where large number of people are accused of committing crime-Witnesses speaking generally and in an omnibus way without specific reference to identity of individuals-Conviction cannot be safely based on such witnesses unless supported/corroborated by one or more reliable witnesses.

       The incident pertains to the attack on the Harijan Basti which we have earlier termed as the second incident in which as many as 17 members of the Harijan community sustained injuries of varied nature and nearly as many heads of cattle were gutted in fire so also a large number of huts belonging to the members of this community were set on fire. This incident, according to the prosecution, took place immediately after the assault on deceased Radhey Shyam and Banarsi for which crime the prosecution has held the original accused A-1 to A-34 responsible. It is the prosecution case that after the first incident at the behest of A-35, who is the Pradhan of the village, A-36 to A-64 joined hands with the original group comprising A-1 to A-34 and all of them proceeded towards the Harijan Basti. On the way, they were joined by another 500-600 people; all belonging to the members of the upper caste and together they committed the offence which forms part of the second incident. The prosecution relies upon the evidence of PWs. 1 to 21 to establish its case against the accused persons who were brought to trial with reference to the charges referable to the second incident. In regard to this incident, there were 65 persons originally named and arrayed as accused persons out of which, as stated above, Baikunth Upadhyaya died. The trial Court on consideration of the prosecution case, considered it unsafe to accept the evidence against A-37 to A-64 and accordingly acquitted them of the charges levelled against them. To this extent the prosecution has failed to establish its case in regard to the second incident even before the trial Court. From the narration of the second incident by the prosecution, it is seen that a large number of people exceeding 500 in number were alleged to have taken part in this incident. Nearly 22 prosecution witnesses have supported this part of the prosecution case in which the courts below believed the case of the prosecution in regard to only 36 of them, who have been convicted for their part in the second incident.

       Held : It is not safe to rely on the evidence of witnesses who speak generally and in an omnibus way without specific reference to the identity of the individuals and their specific overt acts in regard to the incident that took place in the Harijan Basti. In view of the large number of accused implicated in this incident and simultaneous nature of attack as stated by the prosecution witnesses, we think as a rule of prudence it is necessary to fix a minimum number of witnesses needed to accept the prosecution case to base a conviction. We have carefully perused the evidence on record and heard the counsel on this point and having bestowed our thoughts, we are of the opinion PWs. 1 to 3 in this case have implicated all the appellants uniformly of the offence charged against them. While their presence at the place of incident cannot be doubted, we find it difficult to accept the fact that these 3 witnesses could have noticed and identified all the accused numbering 64 out of nearly 500 participants in the second incident. The trial Court has not accepted their evidence in regard to the involvement of A-37 to A-64; may be on the limited ground that their names were not mentioned in the FIR but the fact remains that these 3 witnesses have improved their case by implicating that many innocent people in their oral evidence. Therefore, we are of the considered opinion that conviction cannot be based on the evidence of PWs. 1 to 3 only in this case, and we have to look for corroboration of the evidence of PWs. 1 to 3 (which we treat as anchor evidence) from witnesses who have given evidence to the actual fact of the presence of the named appellants and of the overt act of those appellants in the second incident. For this purpose, we are of the opinion that if evidence of PWs. 1 to 3 is supported/corroborated by one of more reliable witnesses, then a conviction can be safely based on that appellants in regard to the charge of which they stand convicted. (Para 13)

       The Court, thereafter appreciating evidence with reference to each and every convicted persons while confirming conviction in respect of some of the accused against whom corroborative evidence were available acquitted other accused persons giving benefit of doubt. (Paras 14 to 16)