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SUPREME COURT OF INDIA
S.R. PANDIAN AND K. JAYACHANDRA REDDY, JJ.
B.N. Singh etc., Appellants
Versus
State of Gujarat etc., Respondents
Criminal Appeal No.50 of 1980 and Cri. Appeals Nos. 70,74 and 476 of 1980, D/- 7-2-1990.
(ii) Indian Penal Code, 1860 - Section 302 read with Section 34- Conviction under- Appeal- Interested witnesses Implicating one accused falsely- Their version that three of the accused caught hold of the deceased is not acceptable- In view of the glaring infirmity their evidence is not trusthworthy against any of the accused- Any reliance placed on such evidence is likely to result in miscarriage of justice- Conviction set aside.
Held: All these three witnesses have consistently deposed that accused No.3 also is one of the persons who caught hold of the deceased. The Trial Court has considered the evidence of D.W. 1 in greater details and with out any hesitation has held that accused No.3 at the relevant time was at Bombay and not at the place of occurrence, and therefore accused No.3 was falsely implicated. Even the Appellate Court has not preferred to reject this evidence. The learned Judges have examined the register maintained by the Guest House and also scrutinised the evidence of D.W. 1 and it is observed "Having regard to the defence evidence and the copy of the receipt of the amount received by the owner of the Guest House and its original Ex. 88 and 89, we are inclined to believe that accused No.3 might have gone to Bombay, though we cannot carry hundred percent conviction in our minds that accused No.3 had gone to Bombay, on 10-10-1977 and that he was there at Bombay till 12th October, 1977. "Having so observed the learned Judges again vacillated and further observed that the evidence of eye-witnesses also on that ground can not be rejected and in this process thought fit to give benefit of doubt to accused No.3. We have examined the reasoning given by the Trial Court as well as the Appellate Court in respect of alibi evidence. We are convicted that both Courts have accepted the alibi evidence of accused No.3. Therefore the only inference that could be drawn is that accused No.3 has been falsely implicated. (Para 8)
Further Held: The circumstance namely that accused No.3 was falsely implicated is glaring and renders the evidence of these interested witnesses highly suspicious. The Sessions Judge no doubt endeavoured to show that these witnesses P.Ws.4 and 5 are not interested but that is not altogether correct. In the cross examination P.W. 4 has admitted that he was dismissed 10 days prior to the incident and that there was a case against him that he assaulted Fernandes who was the President of the rival Union. He atso admitted that the accused Bhola Singh abused him because there was a member of the rival Union. Likewise P.W.5 admitted in the cross-examination that he was at Badli since 8 months prior to the incident and he was not allotted a quarter and he was staying with one Chauhan. Therefore this admission goes to show that he was a worker and naturally he must have aligned with the rival Union, P.W.6 was an operator in the Viscose Department of the Corporation. He admitted in the cross-examination that he belongs to the rival Union and the other admissions made by him also go to show that he is partisan. As already observed the evidence of partisan witnesses cannot be rejected outright but in this case when they have gone to the extent of implicating one accused falsely and that their version that three of the accused caught hold of the deceased is not acceptable. We find it highly unsafe to rely on their evidence against any of the accused. (Para 10)
Judgment
K. JAYACHANDRA, REDDY, J.:- A rioting took place on 11 th day of October, 1988 at about 3 p.m. in Baroda Rayon Corporation Housing Colony during the course of which one Pandharinath Dagdu Patil, hereinafter referred to as the deceased, was killed. In respect of this occurrence six accused were tried for having committed offences punishable under S. 302 read with S.149, I.P.C. and under S. 135 of the Bombay Police Act. The trial Court convicted accused Nos. 1 and 5 under S. 302 read with S.34, I. P.C. and sentenced to imprisonment for life. The rest of the accused were acquitted. The two convicted accused preferred an appeal against their convictions and the State also preferred an appeal against the acquittal of the remaining accused. The High Court of Gujarat dismissed the appeal filed by accused Nos. 1 and 5 and allowed the appeal filed by the State and convicted accused No. 4 under S. 302/34, I.P.C. and sentenced him to undergo imprisonment for life. Accused Nos. 2 and 6, however, are convicted under S. 326 read with S. 34 and each of them is sentenced to suffer R.I. for five years.
2. Pursuing to the leave granted by this Court, the appeal preferred by Accused No. 4 is numbered as Criminal Appeal No. 50/80. Similarly the appeal of accused Nos. 2 and 6 is numbered as Criminal Appeal No. 70/ 80 and the one preferred by, accused Nos. 1 and 5 is Criminal Appeal No. 74/80. The State also after obtaining leave preferred Criminal Appeal No. 476/ 80, against the partial acquittal of accused Nos. 2 and 6 and the total acquittal of accused No. 3. These appeals can be disposed of by a common judgment.
3. Since some of the acquitted accused namely accused Nos. 2, 4 and 6 are convicted by the High Court setting aside their acquittal, we have to necessarily state the facts, and also consider the evidence in detail.
4. Firstly, the prosecution case may be stated. There is an industrial concern namely Baroda Rayon Corporation hereinafter referred to as the Corporation, in Udhana town. In the complex of the Corporation, there are factories as well as quarters for officers and workers. Except accused No. 5, the rest of the accused are the employees of the Corporation and they were allotted quarters. At the time of the incident, accused No. 5 used to reside with accused No. 1. The factory works in four shifts. Originally there was one trade union. About three years prior to this incident, another trade union came into existence and there were factions between the two rival unions. The deceased and the accused belong to the rival factions. At the time of the incident, accused No. 1 was their Joint Secretary. Accused No. 3 was the Vice-President and accused No. 6 was the Vice-President of the staff union of the Employees Union. The deceased was the Vice-President of the rival Mazdoor Union. On the day of occurrence the deceased was returning after completing his duty in A shift. P.W. 5 was following him .When the deceased reached near block No. 15 of C colony, all the accused are alleged to have surrounded him. The deceased raised cries. P.W. 4 a dismissed worker and P.W. 6 were going along with one Ramy Bhandari towards the Guest Houses. They heard the cries for help and they ran towards him. P.W. 5 also ran towards him, They saw the accused assaulting the deceased. Accused Nos. 2, 3 and 6 caught hold of the deceased by his both ands and accused Nos. 1, 4 and 5 dealt blows with Rampuri knives on the front and on the back of the deceased. On seeing P.W. 5 approaching the place, the accused ran away. P.W. 5 escorted the deceased to a nearby Mandi. The deceased was bleeding profusely and he fell down. P.W. 4 having noticed the injuries went to the Udhana Police Station and lodged the report at about 3.30 p.m. P.W. 21, P.S.I. Soni recorded the report, registered the crime and rushed to the place of incident on a motor-cycle. He found the dead body of the deceased lying near the Mandi. He drew inquest and sent the dead body for post-mortem. I
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