Important point
Prosecution case could not be disbelieved merely by its failure to explain minor injuries suffered by accused.

Headnote:(i) Indian Penal Code, 1860—Section 302/34—Three appellants with two acquitted accused, armed with weapons like lathi, farsi, tanchia and kattas attacked complainant party as soon PW 1 and two deceased reached their field at 7 a.m.—Parties had enmity on account of construction of bund—Two deceased died on spot on account of injuries and PW 1 sustained injuries—Conviction by Courts below—Appeal—Two Courts having concurrently accepted evidence to sustain the charge, meticulous analysis of evidence was not permissible—Injuries sustained by accused were small abrasions and laceration on non-vital parts of body and prosecution case was not affected by non-explanation of those injuries—There was no cross examination of doctor for alleged inconsistency in medical evidence—Acceptable ocular evidence could not be dislodged on hypothetical basis—Appellant could not plead right of private defence as none of complainant party was armed where as accused armed with weapons were already in wait for arrival of victims—Conviction could not be interfered with. (Paras 8 to 10)
(ii) Indian Penal Code, 1860—Section 302/34—Appellants convicted under by High Court where conviction of other two accused was set aside in a charge under Section 302/149 IPC—Sustainability of conviction with aid of Section 34 IPC—Two victim deceased were done to death by serious injuries on vital parts of their body and three appellants had common intention as they were waiting with arms in the field—Evidence indicated that accused had repeatedly given blows and it was not possible to identify and ascribe a particular injury to particular accused—Conviction was well founded.
Held : There is no doubt that Isab and Dhandhad were done to death by serious injuries to the vital parts of their bodies, namely, skull. That the three appellants had a common intention to cause such injuries is evident from their waiting with arms, early in the morning, in the field. The evidence on record justifies the conclusion of the High Court. The manner in which the complainant party was attacked and two of them were done to death is born out by the evidence and the High Court’s findings on this issue are justified. May be, from the evidence, it may not be possible to pin point the person who dealt the fatal blow to each of the deceased. That is perhaps the reason why the appellants were all acquitted of the charge under Section 302 simplicitor. But when the evidence indicates that the three accused had repeatedly given blows with lathi, farsi and tanchia, and it is not possible to identify and ascribe a particular injury to a particular accused, there would be nothing illegal in convicting the accused of the charge of Section 302 with the aid of Section 34 IPC. (Para 13)

Judgment

Srikrishna, J.—The appellants were convicted under Section 148, Section 302/149 and Section 323/149 of the Indian Penal Code by the Trial Court and sentences were awarded to them consequently. Having failed in their appeals before the High Court, the appellants are before this Court by way of special leave.

Facts :

2. Sahab Khan, PW 3, made a written report (Ex.P6) on 11.7.1997 at 9.00 a.m. in Police Station Sadar, Alwar. According to him, between 7:00 and 7:30 a.m. on that day, he and his father, Dhandhad, and his brother, Isab, went to their field. Mangu Khan, Appellant No. 1, Sirdar Khan, Appellant No. 2, Subedar Khan, Appellant No. 3, (Deen Mohd. and Jamil Khan, since acquitted), who had enmity against them on account of construction of a bund, were sitting on the bund duly armed with lathi, farsi, tanchia and kattas. As soon as the informant, his father and brother approached, all the aforesaid persons attacked them with farsi, lathi and tanchia. Consequently, Dhandhad and his brother, Isab, fell down and died on the spot itself. He also sustained some injuries as a result of the assault. The Police Station, Sadar, Alwar registered a case under Sections 147, 148, 149, 307, 447 and 302 IPC and commenced investigation. As a result of the investigation, five of the accused were tried. They comprised Mangu Khan, Appellant No. 1, Sirdar Khan, Appellant No. 2, Subedar Khan, Appellant No. 3, Deen Mohd. and Jamil Khan. Learned Additional District and Session Judge, Alwar convicted the said accused under Sections 148, 302/149 and 323/149 of I.P.C. and sentenced them to suffer two years rigorous imprisonment and a fine of rupees one thousand in default for the offence under Section 148, rigorous imprisonment for life and a fine of rupees five thousand with default sentence of two years rigorous imprisonment for the offence under Section 302/149 IPC, and to suffer one year rigorous imprisonment for the offence under Section 323/149 IPC.

3. All the five accused appealed to the High Court. On appeal the High Court was of the view that the charges under Sections 148, 302/149 and 323/149 IPC against the appellants, Deen Mohd. and Jamil Khan had not been established beyond reasonable doubt and acquitted them. The present Appellants Nos. 1 to 3 were, however, convicted by the High Court under Section 302 read with Section 34 IPC and sentenced to suffer imprisonment for life and fine of rupees five thousand with a default sentence of two years rigorous imprisonment and one year’s rigorous imprisonment for the conviction under Section 323/34 IPC. The sentences were directed to run concurrently.

4. The learned counsel for the appellant invited us to go into the minute details of the evidence to persuade us that the evidence before the Court could not have been accepted at all for convicting the appellants. He also tried to highlight some discrepancies and inconsistencies in the evidence. Two courts having concurrently accepted the evidence to sustain the charge, we decline to go into the meticulous analysis of the evidence at the invitation of the learned counsel for the appellants. We may usefully recapitulate in this connection the dicta of this Court in Harshadsingh Pahelvansingh Thakore v. The State of Gujarat1.

“Judicial summitry, when the subject of dispute is reappraisal of evidence even on the sophisticated ground of misappropriation, has to submit itself to certain self-restraining rules of processual symmetry. The trial court directly sees the witnesses testify and tests their veracity in the raw. The appellate Court, enjoying coextensive power of examination, exercises it circumspectly, looks for errors of probative appraisal, oversight or omission in the record and makes a better judgment on the totality of materials in the light of established rules of criminal jurisprudence. As the case ascends higher, forensic review is more rarefied. Such being the restrictive approach, the Supreme Court cannot be persuaded, without stulti

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2005 Supreme(SC) 345

Important pointProsecution case could not be disbelieved merely by its failure to explain minor injuries suffered by accused.

Cases Referred (8)

Important point
Prosecution case could not be disbelieved merely by its failure to explain minor injuries suffered by accused.