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SUPREME COURT OF INDIA
P.N. BHAGWATI AND R.S. SARKARIA, JJ.
Bhagirath,
Versus
State of M.P., Respondent.
Criminal Appeal No. 146 of 1971
Decided on 8-9-1975.
Where the trial court as well the appellate court found that the witnesses were concealing the actual version of the occurrence, the manner of assault as stated by them was not in consonance with the medical evidence with the result that the injuries on the person of accused remained unexplained and the appellant was convicted by making out a third case on failure of defence version.
Held, that the approach of the Courts below in reconstructing a story different from the one propounded by the prosecution and the conviction on that basis, was clearly erroneous. Contrary to what these prosecution witnesses had stated, the courts have come to the conclusion that the injuries were received by the accused in course of free fight, at the hands of the complainant party.
Held, further that it is well settled that prosecution can succeed by substantially proving the very thing it alleges. It must stand on its own legs. It cannot take advantage of the weakness of defence. Nor can the court on its own, make out a new case for the prosecution and convict the accused on that basis. Since the substratum of the evidence given by the eye witnesses examined by the prosecution was found to be false, the only prudent course, in the circumstances of this case, left to the court was to throw out the prosecution case in its entirety against all the accused, [Paras 11, 12 & 15].
JUDGMENT
R. S. SARKARIA, J. :—This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court. It arises out of these facts.
Three persons, named Gopal, Bhagirath and Manohar were tried by the Additional Sessions Judge, Indore on charges under Ss. 307, 307/34. Penal Code for the attempted murder of their co-villager, Kashiram. There was also a charge under Section 324 against Gopal for causing hurt to a Devising (PW 2). The trial Judge convicted Bhagirath appellant under Section 307, Penal Code and sentenced him to three years rigorous imprisonment. Gopal and Manohar were acquitted. Bhagirathis appeal was dismissed by the High Court, his conviction was maintained but the sentence was reduced to two years rigorous imprisonment. Hence this appeal by him.
2. The prosecution story ran as under :
Bhagirath appellant and Gopal, the acquired accused are real brothers. On March 30, 1969 Kashiram (PW 1) returned to his village Sanavdiya at about 6 p. m. He went into his house and bolted it from inside Immediately thereafter the appellant and the two acquitted accused, armed with weapons raided the house, hammered at the entrance door, broke it open, pulled out Kashiram and forcibly took him to a distance of 80 feet. There, Bhagirath and Gopal struck one spear blow each on the left flank of Kashiram, while Manohar gave him a farsi blow. The blade of the spear of one of the assailants got detached from its wooden handle and was left embedded in the wound of Kashiram. Devisingh (PW 2) tried to intercede but Gopal dealt him a blow, too. The assailants then ran away. Devising (PW 2) went to the Police Station Khudel and lodged the First Information Report (Ex. P-1).
3. Sub-Inspector Shankarrao Chouhan came to the village for investigation. There, the appellant, also, handed over a written complaint to the sub-inspector accusing that Kashiram, Devisingn and others had assaulted them. On this report, another case was registered against P. Ws. Kashiram, Devisingh and two others.
4. The prosecution examined eight eye-witnesses. Pws. 2, 5, 7 and 9 are the sister s son, wife, brother s wife and brother respectively of Kashiram, while Pws. 8 and 14 are his nephews. Smt. Kehar (PW 6) is the daughter-in-law of Kashiram s 976 brother. All the eye-witnesses were thus closely related to Kashiram.
5. At the trial all the witnesses with one voice reiterated the story that has been set out at the commencement of this judgment.
6. All the three accused in their examination under Section 342, Cr. P. C. denied the prosecution case. The appellant set up a counter-story. According to the defence, Kashiram is a notorious bully and a desperate character. On the day of occurrence, at about 6 P. M. he alighted from a Tempo near the Hotel in village Samavadiya. Brandishing an open knife, he started abusing the villagers in general who were languishing near the Hotel. Some of his relations and friends bodily carried away Kashiram and locked him inside his house so that he may not cause harm to anybody. Kashiram was however in rage and in bellicose mood. He attempted to break open the locked door with a sword from inside. Ultimately Kashiram succeeded in coming out by scaling the wall. Sword in hand, he charged at Bhagirath and caused the latter a serious injury on the face. Kashiram caused another injury to Bhagirath. A third blow attempted by Kashiram landed on the ground with the result that his sword broke into two. While Bhagirath and Kashiram were scuffling, Devisingh, Puriya Narayan and Mukand armed with sword and spears came there and assaulted the appellant.
7. The courts below have rejected as false, this part of the prosecution story that Kashiram was pulled out from his house, and taken to a distance of 15 paces in the lane and there assaulted by the three accused.
8. In this connection, the learned trial Judge said:
"Both pieces of the door clearly show that violence was put on it from inside and not outside. The edges of the holes
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