2007 Supreme(SC) 1094

2007(6) Supreme 491
Supreme Court of india
S.B. Sinha & Markandey Katju, JJ.
(From Bombay High Court)
State of Maharashtra — Petitioner
versus
Tulshiram Bhanudas Kamble & Ors. — Respondents
Appeal (crl.) 85-87 of 2000
Decided on : 21-08-2007

important points
Enmity can be a ground for false implication, but it can also be a ground for correct implication.
Doctrine of falsus in uno falsus in omnibus (false in one false in all) does not apply in India.
It is not necessary to accept the evidence of injured witnesses. However greater weight has to be given to testimony of such witnesses, particularly when evidence of all such eye witnesses are broadly consistent.

Headnote:(a)Indian Penal Code, 1860 – Sections 452 and 302 – The accused having come armed with deadly weapons and committed criminal trespass in the house of the deceased – When High Court found the accused guilty of offence u/s 452 in the same incident in which two persons died and three eye witnesses injured, it could not have acquitted them u/s 302.(Para 27)

       (2005) 10 SCC 498; (2004) 7 SCC 629 – Relied upon.

       (b)Indian Penal Code, 1860 – Section 302 – When the presence of the injured eye witnesses at the place of occurrence cannot be doubted, their evidence cannot be discarded only on the ground that they were inimical to the respondents – Enmity can be a ground for false implication, but it can also be a ground for correct implication. (Para 29, 33)

       (1998) 1 SCC 509; 1994 Supp. (3) SCC 189 – Relied upon.

       (c)Criminal Trial – In India the doctrine of falsus in uno falsus in omnibus (false in one false in all) does not apply – Therefore, court can partly reject and partly accept the evidence of a witness, and it is not correct to say that merely because some part of the evidence is found to be false the entire evidence has to be rejected – If the Court finds that out of several co-accused, one or more are falsely implicated, that does not necessarily mean that everyone was falsely implicated.(Para 34)

       (d)Criminal Trial – It is not necessary to accept the evidence of injured witnesses – But greater weight has to be given to testimony of such witnesses, particularly when evidence of all such eye witnesses are broadly consistent – View of trial court approved. (Paras 38, 39)

       (1991) 2SCC 432; (1996) 2 SCC 384; 2007(6) SCALE 206 – Relied upon.

       (e)Constitution of India – Article 136 – Well settled that when the judgment of acquittal passed by High Court is based on perverse reasoning, the Supreme Court can set it aside and restore the judgment of conviction and sentence passed by the trial court.(Para 40)

       (2005) 9 SCC 84 – Relied upon.

       (f)Constitution of India – Article 136 – The scope of an appeal against acquittal is limited – It is trite that only when two views are possible, a judgment of acquittal cannot be interfered with; but that would not mean that despite existence of substantial and compelling reasons, the Court will refuse to interfere in a case where it would be just and proper to do so.(Para 50)

       2007(3) SCALE 90; 2007(6) SCALE 2006; (2006) 10 SCC 418 – Relied upon.

       (g)Indian Penal Code, 1860 – Section 302/149 – In view of each one of the appellants being armed with deadly weapons, coming together and entering the house of the deceased and causing death of him by two of the appellants by inflicting blows with swords; common object on the part of each of the appellants stands proved – Once formation of common object amongst the accused is proved, it is not necessary to consider specific overt act played by each of them. (Para 53)

       Facts of the case:

       The appellants belong to the Koli community and are inter-related. Between them on the one hand and the informant Rajabhau Kamble (PW-7), Dattatraya Kamble (PW-8), Bhaskar Bhinge (PW-11), his brother Mahesh Bhinge (PW-12), Laxman Kamble (the deceased) and Kailas Bhinge (the deceased), there was long standing enmity of an acute nature. Its details have been furnished in paragraph 9 of the statement of the informant Rajabhau Kamble.

       It is alleged that on 19.2.1995 at about 5 p.m. the deceased persons Bhaskar Bhinge and Dattatraya Kamble along with some others were watching a film on Television inside the house of the deceased Laxman, in Pandharpur Taluka within the limits of District Sholapur. The informant Rajabhau Kamble and Pandurang Bhinge also came there. After some time Panduran Bhinge left. At about 7.30 p.m. the film got over. Thereafter the deceased persons, Dattatraya Kamble and Rajabhau Kamble came and sat in the courtyard of Laxman. Bhaskar Bhinge remained inside and was listening to the news. At that time in the jeep of acquitted accused Laxman Paparkar, the appellants along with acquitted accused Laxman Paparkar, Walchand Shah, Manikchand @ Babusha Shah and Balu Kamble came. They were armed with weapons Sattur, axe and sword. They entered inside the courtyard of Laxman. Appellants Tulsiram Kamble and Dagadu started inflicting blows with swords on Dattaraya’s person. Appellants Rajendra and Anil Mane assaulted Dattatraya with Sattur. Kailas Binge, the deceased at that time was sitting by the side of water tank which was in the courtyard. Appellants Ramchandra with an axe, Santosh, Dhananjay alias Dahanaji acquitted accused Laxman, Walchand and Babusha with swords started assaulting him. Appellant Tulsiram also is said to have joined them. Bhaskar Binge (PW-11) in the meantime came out, caught hold of Babusha Shah, and asked him as to why he was assaulting Kailas, whereupon he inflicted a blow from the blunt side of sword on his right thigh. Thereafter Babusha Shah and Tulsiram lifted Bhaskar Binge and took him to the gate of the house and made him stand there. Appellants Dagadu with sword, Raja alias Rajendra Kothalkar, Anil Mane, Sunil Mane, Ashok Waghmare and Ganesh Paparkar assaulted the deceased Laxman with Sattur on various parts of his body like head, face and hand. In the meantime Bhaskar Bhinge’s son Mahesh Bhinge (PW-12) came and Walchand Shah inflicted a sword blow on this person. After assaulting Laxman, Kailas, Dattatraya, Bhaskar Bhinge and Mahesh Bhinge, the appellants and the acquittal accused are alleged to have run away.

       This incident was seen by the victim, Rajabhau Kamble and Suresh Sobaji (PW-13) in electric light. It is said that Kailas Bhinge succumbed to the injuries on the spot.

       Fifteen accused were charge-sheeted under Sections 147, 148, 149, 302, 307, 323, 324, 188 and 452 of the Indian Penal Code. The trial court convicted accused no.1 Tulshiram Bhanudas Kambale, accused no.2 Ramchandra Bhanudas Kambale, accused no.5 Ganesh Kisan Shirsat @ Paparkar, accused no.6 Ashok Sahebrao Waghmare, accused no.8 Dnyaneshwar Shankar Naikwadi, accused no.10 Anil Dhondiram Mane and accused no.11 Sunil Dhondiram Mane under Section 302 read with Section 149 of the Indian Penal Code and sentenced them to life imprisonment. He also convicted accused no.1, accused no.10 and accused no.14 under Section 324 read with Section 149 of the Indian Penal Code and sentenced them to two years rigorous imprisonment. He further sentenced accused no.1, accused no.2, accused no.5 to 11, accused no.14 and 15 under Section 452 read with Section 149 of the Indian Penal Code and sentenced them to three years rigorous imprisonment. He acquitted accused no.1 to 15 of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code hence Section 188 of the Indian Penal Code. He gave the benefit of doubt to accused nos.7, 9, 14 and 15. He acquitted accused nos.3, 4, 12 and 13 of all the punishable offences for which they were charged.

       The State did not file any appeal against the accused who had been acquitted by the trial court and hence the acquittal of those accused has become final.

       However, nine of the accused, being original accused no.1, 2, 6 to 14 being Tulsiram Bhanudas Kamble, Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare, Dagadu Shankar Naikwadi, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar, Anil Dhondiram Mane, Sunil Dhondiram Mane and Rajendra Dashrath Kothalkar filed an appeal before the Bombay High Court. The High Court by the impugned judgment dated 5.4.1999 acquitted five of the appellants being Ramchandra Bhanudas Kamble, Ashok Sahebrao Waghmare, Dnyaneshwar Shankar Naikwadi, Santosh Dashrath Kothalkar and Sunil Dhondiram Mane on all counts and ordered them to be released.

       The High Court also acquitted Tulsiram Bhanudas Kamble and Anil Dhondiram Mane for the offence under Section 302 read with Section 149 of the Indian Penal Code. It also acquitted the accused Tulsiram Bhanudas Kamble, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar for the offence under Section 324 read with 149 of the Indian Penal Code.

       The High Court converted the conviction of accused Tulsiram Bhanudas Kamble, Dagadu Shankar Naikwadi, Anil Dhondiram Mane and Rajendra Dashrath Kothalkar from Section 452 read with Section 149 of the Indian Penal Code and altered it to Section 452 read with Section 34 of the Indian Penal Code. It reduced the sentence to the period already undergone. The Court further set aside the conviction of Ganesh Kisan Shirsat @ Paparkar on both the counts namely Section 302 read with Section 149 and Section 452 read with Section 149 of the Indian Penal Code. It further allowed the appeal and set aside the conviction of Dhanaji Dashrath Kothalkar under Section 452 read with Section 149 of the Indian Penal Code.

       Findings of the Court:

       High Court wrongly acquitted the accused persons after finding them guilty of offence u/s 452, IPC.

       Result: Appeals allowed.