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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND D.A. DESAI, JJ.
Babboo and others, Appellants
Versus
The State of M.P., Respondents.
Criminal Appeal No. 409 of 1974, D/- 30-11-1978.
Indian Penal Code, 1860 – Sections 148, 302, 149 – Order of Conviction – Appellants in this appeal by special leave are original accused No. 1, accused No. 3, accused No. 5 and accused No. 7, all of whom were convicted for having committed an offence under section 302 read with section 149 of the Indian Penal Code and each of them was sentenced to suffer imprisonment for life. They were also convicted for having committed an offence under section 148 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for two years by the learned II Additional Sessions Judge, Bhopal in Sessions Trial – Their Appeal was summarily dismissed by the Madhya Pradesh High Court. – Held, Court feel impelled to express sense of distress at the manner in which the High Court has disposed of the appeal preferred by the present appellants. – When the appeal came up for admission, the High Court referred in one line to the evidence of Phoola Bai observing that she had named all the five appellants as having caused injuries to Diwan Singh with Katarnas. – The next sentence is with reference to the evidence of Lachhman which evidence is disposed of by a cryptic observation that he supports Phoola Bai. – Following sentence is with reference to Kanhaiya Lals evidence and it is observed that he corroborates both Phoola Bai and Lachhman. – Then comes a statement which may be reproduced in the words of the High Court. – Only inescapable conclusion is that such a serious appeal has been disposed of in a laconic manner without application of mind. – High Court then refers to the recovery of shirt of accused No. 1 and accused No. 3 having been stained with human-blood. – Additional Sessions Judge has not attached any importance to the recovery of these two shirts. – When at a criminal trial a number of accused are convicted of such a serious offence as one under section 302 I.P.C. and there is only one appeal on facts to the High Court ordinarily it is expected that the contentions raised by the accused would receive serious considerations at the hands of the High Court. – It is undoubtedly open to the High Court to dismiss such an appeal in limine but as is expected by this Court it must be by a speaking order. – No useful purpose would be served by paying lip sympathy to the requirements of making a speaking order if glaring inaccuracies and serious infirmities in the prosecution evidence are wholly over-looked. – A mere statement that a witness implicates all the accused and a broad statement that other two witnesses corroborate the first witness cannot be styled as a speaking order, more so, when the averment in the judgment is not borne out by the record or is contrary to record. – Even if the High Court chooses to rely on a witness in whose evidence there is a glaring infirmity namely that at the earliest opportunity the witness did not name the assailants, some reason for overlooking such an infirmity must ordinarily find its place in the judgment. – In a criminal trial absence of names in first information report has considerable importance. – If the absence of names of assailants in first information report is to be overlooked, cogent reasons must be assigned and they must appear in the judgment for the benefit of this Court. – High Court being the last fact-finding court it would not be too much to expect it to examine evidence with utmost care and caution. – Appeal Allowed
Judgment
DESAI, J.:- The appellants in this appeal by special leave are original accused No. 1 Babboo alias Kalyandas, accused No. 3 Gopi son of Ubdha Maina, accused No. 5 Kamal son of Devi Ram Teli, and accused No. 7 Jawahar son of Devi Ram Teli, all of whom were convicted for having committed an offence under section 302 read with section 149 of the Indian Penal Code and each of them was sentenced to suffer imprisonment for life. They were also convicted for having committed an offence under section 148 of the Indian Penal Code and each of them was sentenced to suffer rigorous imprisonment for two years by the learned II Additional Sessions Judge, Bhopal in Sessions Trial No. 16/74. Their Appeal No. 243/74 was summarily dismissed by the Madhya Pradesh High Court.
2. The appellants alongwith four others (acquitted by the Additional Sessions Judge) were tried for committing murder of one Diwan Singh on 21st September 1973. The prosecution case against them was that around 10 p.m. to 11 p.m. on the date of occurrence Diwan Singh was at his house, relaxing on a cot, after taking his food. His wife Phoola Bai (P. W. 6) was sitting on the cot. At about that time, accused No. 8 Mohandas and accused No. 9 Kashidas (both acquitted by the Additional Sessions Judge) came to the house of Diwan Singh and informed him that he was required by one Prabhu. On receipt of this intimation Diwan Singh started from his house and Phoola Bai (P. W. 6) followed him. When Diwan Singh reached near the house of Devi Ram Modi, he was accosted by the appellants and four acquitted accused. All the accused were armed with Katarnas. Accused No. 1 Babboo alias Kalyandas struck a blow with Katarna on the shoulder of Diwan Singh. Immediately, thereafter all the rest of the accused also gave blows with Katarnas to Diwan Singh, P. W. 6 Phoola Bai was threatened that if she were to raise shouts, she would be killed. However, Phoola Bai screamed which attracted the attention of one Lachhman (P. W. 7) and Lachhman interceded and implored the accused not to beat Diwan Singh. At that time accused No. 4 Teekaram pushed the wooden handle of Katarna into the mouth of Lachhman. Diwan Sing fell down on the ground. Accused No. 2 queried if Diwan Singh had been done away with and when informed it was so, all the accused went away and entered the house of Devi Ram Modi, Phoola Bai (P.W. 6) went to the house of Ram Singh (P. W. 10), uncle of deceased Diwan Singh and informed him that her husband Diwan Singh was killed and was lying near the house of Devi Ram. Ram Singh (P. W. 10) called one Rati Ram and Gandharva Singh (P. W. 11). Gandharva Singh is the cousin of Diwan Singh, Phinsa (P. W. 5) the chowkidar of the village was sent for, and he soon arrived at the spot where the dead body of Diwan Singh was lying and at that time Phoola Bai (P. W. 6) and mother of Diwan Singh were also present there. Ram Singh (P. W. 10) and Gandharv Singh (P. W. 11) asked Phinsa (P. W. 5) to go to the police station and lodge a report and accordingly Phinsa went to Dehgaon Police Station and lodged report Exhibit P-25 on the basis of which an offence was registered and investigation was undertaken. Ultimately nine accused were charge-sheeted for the aforementioned offences.
3. The learned Additional Sessions Judge on a concession by the learned Government Pleader acquitted accused Nos. 8 and 9 holding that they had not participated in the actual assault and no deadly weapon was recovered from either of them and therefore they could not be said to be sharing the common object of the unlawful assembly. Similarly, in case of accused No. 2 and No. 4 the learned Additional Sessions Judge was of the opinion that merely because they caught hold of Phoola Bai they could not be said to be sharing the common object of the unlawful assembly. With these observations accused Nos. 2, 4, 8 and 9 were acquitted. In respect of accused Nos. 1, 3, 5, 6 and 7, the learned Additional Sessions Judge held that evidence
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