1995 Supreme(SC) 857

SUPREME COURT OF INDIA
M.K. MUKHERJEE AND G.T. NANAVATI, JJ.
Bharwad Jakshibhai Nagjibhai and others, Appellants
versus
State of Gujarat, Respondent.
Criminal Appeal No. 381 with 382 of 1989
Decided on 24-8-1995.
WITH
Arvindbhai Kanjibhai Patel, Appellant
versus
Bharwad Jakshibhai Nagjibhai and others. Respondents.

Headnote:(i) APPEAL AGAINST ACQUITTAL : Powers of Appellate Court. Where two views of evidence are reasonably possible - Normally order of acquittal is not disturbed - Where approach of trial judge in dealing with evidence is manifestly erroneous and conclusions drawn are unreasonably and perverse - High Court was justified in reversing the order of acquittal.

       Held: the prosecution case was that the successive assaults on Govindbhai. Arvind and Vinod were parts of the same transaction and outcome of one and the same common object and not isolated incidents. Surprisingly however, the trial Judge appraised the evidence of the eye witnesses treating the three incidents of assault as district and unconnected with each other. The High Court was, therefore, fully Justified in observing that the basic approach of the trial Judge in appreciating the prosecution evidence was absolutely erroneous, as it proceeded as if the three assaults were for different motives or common objects. (Para 8)

       With the above observation, the High Court posed the basic question as to whether the prosecution succeeded in proving that 40-50 members of Bharwad community formed an unlawful assembly and considering the evidence of the eye witnesses answered it in the affirmative. The High Court also observed that even the defence did not seriously challenge the above part of the prosecution case and that the learned counsel appearing for the accused did not dispute that question. (para 9)

       Further Held: The next question, which the High Court took up for consideration, was whether the seven appellants were members of the unlawful assembly. In dealing with this question and answering the same in favour of the prosecution the High Court first set out at length the basic principles the trial Judge was generally required to follow for appreciating the evidence of eye witnesses and particularly of injured eye witnesses after culling the same from the judgments of this Court. (Para 10)

       The High Court then discussed the evidence of the eyewitnesses threadbare in the light of other evidence and, after detailing the significant departures the trial Judge made from those principles, concluded that he was not at all justified in discarding their evidence. (Para 10)

       Consequently Held: To appreciate whether the above conclusion of the High Court is sustainable or not we have carefully gone through the entire evidence on record. Having done so we find that the High Court was fully justified in reversing the acquittal as the trial Judges approach in appreciation of evidence was patently wrong and perverse. While on this point we may also mention that some of the reasons given by the trial Judge are of such flimsy character that they did not merit any consideration in the appellate Court. Besides the trial Judge was not at all justified in relying upon minor discrepancies regarding details to discard the evidence of the eye witnesses which the High Court noticed and rightly ignored. (Para 11)

       (ii) Indian Penal Code, 1860 - Sections 148, 326 r/ws 149 - Injuries found on person of deceased possible by hard and blunt substance - Discrepancy about utterances of mob - Held, members of unlawful assembly shared common intention to cause hurt and not to kill- Conviction u/s 326 or 326/149 upheld. Sentence of 3 years imposed by High Court not to be enhanced-considering offences were committed more than 14 years ago.

       Held: If really a mob of 50-60 persons wanted to commit murders nothing prevented them from inflicting severer injuries on the persons of Govindbhai and the two victims, more so, when some of them were armed with sharp cutting and dangerous weapons. The fact that the accused-appellants Nos. 1 and 2 used blunt edges of the weapons and not their sharp edges goes along way to show that they did not also share a common intention to kill Govindbhai when they assaulted him. (para 15)

       Further Held: the accused-appellants would be liable for the offence of causing grievous hurt as Section 149 IPC applies not only to offence actually committed in pursuance of the common object but also the offence that members of the unlawful assembly knew was likely to be committeds and it would be impossible in the facts of this case to hold that the members of the unlawful assembly did not know that grievous heart was likely to be committed by an unlawful assembly, as large as the one with which we are concerned here some of whom were armed with dangerous weapons. Accordingly, even if the common object be not placed as high as murder as contended by Mr. Lalit, the conviction of the accused-appellants under Section 326 IPC simpliciter or 326 read with 149 IPC, as the case may be, for the assaults on Govindbhai and Vinod has got to be upheld. (Para 16)