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Referring to section 174 of the Code of Criminal Proce dure this Court observed at page 89 as under: "A perusal of this provision would clearly show that the object of the proceedings under section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what i... |
The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under section 174. Ratio |
In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report". Ratio |
We, respectfully agree and see no merit in this submission made by the counsel for the appellant. Ratio |
After the appellant and his two companions Parsu and Gudda were arrested they were interrogated by the investi gating officer PW 13 Ramji Singh. Ratio |
In the course of interro gation they showed their willingness to point out the weapons of assault. Ratio |
thereupon the investigating officer called two Panchas, one of them being PW 5 Panna Lal. Ratio |
The very same Panch witnesses were panchas to all the three discovery panchnamas as well as panchnamas regard ing the attachment of the clothes worn by the appellant and his companions. Ratio |
It was, therefore, contended by the counsel for the appellant that PW 5 Panna Lal was a stock witnes whom the police had employed to act as a panch witness. Ratio |
Pointing out that it was Tulsi Ram the brother of the de ceased who had chosen him because he was closely associated with the family of the deceased and was intimated with Babulal another brother of the deceased, Mr. Lalit submitted that no reliance can be placed on the evidence of such an highly interested and special... |
The witness comes from the same locality and his house is situate within 100 yards of the residence of the deceased. Ratio |
He knows the family of the deceased quite well being a neighbour and of the same 'biradari '. Ratio |
It is equally true that he had gone to the hospital on learning about the assault on Gulab and had stayed back with Babulal since the latter was not feeling well. Ratio |
But would it be proper to throw out his evidence on account of his neighbourly relations with the family of the deceased, when nothing has been brought out in crossexamina tion to shake the intrinsic value to be attached to his evidence? Even in the cross examination of the investigating officer nothing has been brough... |
The mere fact that he was a witness to all the Panch namas prepared by the investigating officer is by itself not sufficient to discard his evidence. Ratio |
Even in the case of an interested witness, it is settled law that his evidence cannot be overlooked merely on that ground but at the most it must receive strict scrutiny. Ratio |
In the case of PW 5, except being a good neighbour nothing more is shown. Ratio |
On the question of recovery of the weapon as well as the blood stained pant of the appellant there is hardly any effective crose examination. Ratio |
Nor has the appellant offered any explanation in his statement recorded under section 3 13 of the Code. Ratio |
In these circumstances we are not prepared to reject his evi dence on the specious plea of his being an interested witness. Ratio |
In `Himachal Pradesh Administration vs Om Prakash, ' ; this Court observed at page 777 that it could not be laid down as a matter of law and practice that where recoveries have 'been effected from different places on the information furnished by the accused, different sets of persons should be called in to witness them... |
There was no injunction in law against the same set of witnesses being present at the successive enquiries if nothing could be urged against them. PRE |
It is, therefore, clear from the deci sion of this Court that merely because the same set of Panch witnesses were used for witnessing all the three discoveries as well as the attachment of the 18 clothes of the appellant and his companions, PW5 's evidence could not be discarded since nothing had surfaced in cross exam... |
We are, therefore, satis fied that the evidence of PW5 Pannalal was rightly accepted by both the courts below. Ratio |
We make limited use of this evi dence in the sense that we do not use any part of the evi dence admissible under section 27 Evidence Act, against the appellant. Ratio |
We merely use the factum of find of the incrimi nating weapon from his garage and his inability to explain the presence of human blood thereon as a circumstance against the appellant. Ratio |
The evidence of PW5 further shows that when the appellant was arrested his garments, namely, shirt and pant were attached as blood like stains were noticed thereon. Ratio |
These articles were sent to the Chemical Analyser and Serologist for examination and report. Ratio |
As stated earlier these reports reveal that the blood stains on the pant worn by the appellant were of human origin. Ratio |
The appellant has not offered any plausible explanation for the existence of human blood on his pant. Ratio |
This too is a circum stance against the appellant particularly because no injury was noticed on the person of the appellant. Ratio |
Mr. Lalit, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence, whatsoever. ARG |
In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera vs State of Orissa; , and Surinder Singh vs State of Punjab, [1989] Suppl. 2 SCC 21. ARG |
In the first men tioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra ... |
There was no dispute in regard to the first cir cumstance and the third circumstance was held not satisfac torily proved. Ratio |
In this backdrop the question for considera tion was whether the first and the second circumstances were sufficient to convict the appellant. Ratio |
This Court, therefore, observed that a few small bloodstains could be of the appel lant himself and in the absence of evidence regarding blood group it cannot conclusively connect the bloodstanis with the blood of the deceased. Ratio |
In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not 'conclusive ' evidence. Ratio |
This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. Ratio |
In the second case also this 19 Court did not consider the evidence regarding the find of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW 2 was found to be uninspiring and there was no other circumstance to connect him with the crime. ... |
In this case we have the direct testimony of PW 1 Komal Chand, besides the testimony of PWs 3 and 4 which we have consid ered earlier. Ratio |
The find of hunam blood on the weapon and the pant of the appellant lends coroboration to the testimony of PW 1 Komal Chand when he states that he had seen the appel lant inflicting a knife blow on the deceased. Ratio |
The appellant has not explained the presence of human blood on these two articles. Ratio |
We are, therefore, of the opinion that the afore said two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. Ratio |
We, therefore, see no substance in this conten tion urged by Mr. Lalit. Ratio |
That brings us to the last contention whether the con viction of the appellant for the substantive offence of murder can be sustained in the absence of a finding that the fatal injury No. 1 was caused by the appellant. Ratio |
We must at once acceptt the fact that it is not possible from the ocular evidence to record a definte of fact that the appel lant had caused that fatal injury. Ratio |
On the contrary the evi dence of PW 1 Komal Chand indicates that in all probability the stab wound inflicted by the appellant resulted in injury No. 2. Ratio |
that injury by itself was not sufficient in the oridinary course of nature to cause death. Ratio |
If that be so, can the appellant be convicted under section 302, IPC? Ratio |
Counsel for the appellant submits that the legal position is well settled by a chain of decisions of this Court that if named accused are acquitted except one of the them, the latter cannot be convicted with the aid of section 34 or 149, IPC. ARG |
In support of this contention he invited our attention to a few decisions, namely, Baikuntha Nath Chaud hury vs The State of Orissa, ; Kasturi Lal vs The State of Haryana, ; Chandubhai Sha nabhai Parmar vs State of Gujarat, and Sukh Ram vs State of M.P., [1989] Suppl.1 SCC 214. ARG |
Counsel for the state, however, submitted that while it may be correct that the appellant cannot be substantively convicted under section 302, IPC, he can certainly be convicted with the aid of section 34 or 149, IPC, if this Court on a reap preciation of the evidence comes to the conclusion that more than one person, ... |
In this connection he submitted that notwithstanding the acquittal of others by the Trial Court this Court can reach its own conclusion regarding the number of 20 persons who attacked the deceased for the obvious reason that the higher Court is not bound by the appreciation of evidence by the Trial Court or even the Hi... |
In support of this contention he placed strong reliance on this Court 's recent decision in Brathi vs State of Punjab, [199 1] 1 SCC 519. ARG |
Counsel for the appellant on the other hand contended that the acquittal of the co accused creates a legal bar against the conviction of the appellant on the ground that they were privy to the crime notwithstanding their acquittal and this legal bar cannot be got over by reappreciation of evidence. ARG |
In support of this contention he invited our attention to a Five Judge Bench decision in Krishna Govind Patil V. State of Maharashtra, ; and contended 'that the said decision was binding on us being of a larger bench and the decision in Brathi 's case must be taken to be per incuriam since it had failed to notice and r... |
We are of the opinion, for reasons which we will immediately state, that the contention urged by counsel for the appel lant is not well founded. Ratio |
The ratio of the decision of this Court in Brathi 's case may be noticed at the outset to appreciate the contention urged by counsel for the appellant. Ratio |
In that case, the appel lant and his uncle were tried under section 302/34, IPC. Ratio |
The Trial Court acquitted the appellant 's uncle but convicted the appellant under section 302, IPC. Ratio |
The order of acquittal became final because the State did not choose to challenge it in appeal. Ratio |
The appellant, however, preferred an appeal against his conviction to the High Court. Ratio |
The `High Court on a reappreciation of the evidence held that the fatal blow was given by the appellant 's uncle and since the appellant was charged under section 302/34, IPC, he could not be convicted substantively under section 302, IPC. Ratio |
However, for assessing the credibility of the prosecution case, the High Court incidentally considered the involvement of the appel lant 's uncle and held that the eye witnesses had given a truthful account of the occurrence and the appellant 's uncle had actually participated in the commission of the crime along with ... |
In other words, the High Court came to the conclusion that the acquittal of the appellant 's uncle was erroneous but since there was no appeal preferred by the State it could not interfere with that order of acquittal. Ratio |
It, however, came to the conclusion that the crime was committed by the appellant and his uncle in fur therance of their common intention and accordingly main tained the conviction of the appellant under section 302, IPC, with the aid of section 34, IPC. Ratio |
Before this Court the appellant contended that on the acquittal of his uncle the sharing of common intention disappeared and the High Court was not justified in invoking 21 section 34 for maintaining the conviction against him under section 302, IPC. Ratio |
This Court while dealing with this submis sion held that in the matter of appreciation of evidence the powers of the Appellate Court are as wide as that of the Trial Court and the High Court was, therefore, entitled in law to review the entire evidence and to arrive at its own conclusion about the facts and circumstanc... |
To put it differently, this Court came to the conclu sion that the High Court was not bound by the appreciation of the evidence made by the Trial Court and it was free to reach its own conclusions as to the proof or otherwise of the circumstances relied upon by the prosecution on a review of the evidence of the prosecu... |
This Court, therefore, held that when several persons are alleged to have committed an offence in furtherance of their common intention and all except one are acquitted, it is open to the Appellate Court under Sub section (1)(b) of section 386 of the code to find out on a reappraisal of the evidence who were the person... |
Where on the reappreciation of the evidence the Appellate Court comes to the conclusion that the appellant and the acquitted accused were both involved in the commission of the crime, the Appellate Court can record a conviction with the the aid of section 34 notwithstanding the acquittal of the co accused the appellate... |
This Court, therefore, pointed out that in such a fact situation it is open to the Appellate Court to record a finding of guilt with the aid of section 34 not withstanding the acquittal of the co accused since the English doctrine of repugnancy on the face of record has no application in this country as we are governed... |
On this ratio this Court confirmed the con viction of the appellant under section 302, IPC, but with the aid of section 34, IPC. Ratio |
The fact situation before us is more or less similar. Ratio |
Several decisions were cited in support of the contention that where two named persons are charged for the com mission of an offence with the aid of section 34, IPC and one of them is acquitted the other cannot be convicted with the aid of section 34, IPC. Ratio |
Dealing with these decisions this Court observed in Brathi 's case that all the decisions relied on were distinguishable on the ground that in none of them the Appellate Court was shown to have disagreed with the Trial Court 's appreciation of evidence but on the con trary the Appellate 22 Court had proceeded on the fo... |
We think that the cases on which Mr. Lalit has placed reliance can also be distinguished on the same ground. Ratio |
In Baikuntha Nath Chaudhury 's case the evidence of two eye witnesses PWs 9 and 10 was to the effect that accused Nos. 1 and 2 had killed their brother with the active par ticipation of accused No. 3, their mother. Ratio |
According to the prosecution accused No. 2, the appellant, had called the deceased tohis house and while he was there accused No. 1 inflicted two lathi blows which proved fatal. Ratio |
The dead body was then put m a gunny bag supplied by accused No. 3 and drowned into a nearby tank. Ratio |
The three accused persons were charged under sections 302/34, and 201, IPC. Ratio |
The Trial Court acquitted accused No. 3 but found the other two guilty. Ratio |
On appeal the High Court acquitted accused No. 1 rejecting the prosecution evidence in regard to his involvement but con firmed the conviction of accused No. 2 under section 302/34, IPC, though the fatal injuries were inflicted by the acquit ted accused No. 1. Ratio |
It will thus be noticed that on a reap preciation of evidence by the High Court accused No. 1 came to be acquitted although he was stated to have given the fatal lathi blows while his brother, the appellant, was convicted on the same evidence. Ratio |
This Court, therefore, concluded that if the evidence of the two eye witnesses were to be accepted, accused No. 1 could not be acquitted since according to them it was he who had given the fatal blows while the appellant had merely caught hold of him. Ratio |
This Court, therefore, observed in paragraph 12 of the judgment that if the occurrence spoken to by PWs 9 and lois accepted, the appellant will be constructively liable for his involve ment, though the fatal injuries were inflicted by his brother. Ratio |
In that case his brother will also be guilty of the said offence. Ratio |
But since the High Court had acquitted the first accused it meant that the High Court did not accept the evidence of PWs 9 and 10 in regard to the incident. Ratio |
This Court did not come to the conclusion that the High Court 's appreciation of evidence in regard a accused No.1 was not proper. Ratio |
In fact it did not examine the case from that point of view but held that since the High Court had not accepted the evidence of PWs 9 and 10 in regard to the part played by the acquitted accused, the appellant could not have been convicted on of the same appreciation of evidence. Ratio |
This becomes clear on a close reading of paragraphs 12 and 13 of the judgment. Ratio |
Similarly in the case of Kasturi Lal this Court came to the conclusion that the reasons given by the High Court for distinguishing the case of Kasturi Lal from that of Khazan Singh and Gurdial Singh were not correct and, therefore ', it was not justified in convicting Kasturi Lal. Ratio |
So, when the case of 23 Kasturi Lal was not distinguishable from that of the above two, this Court felt that the High Court erred in con victing Kasturi Lal. Ratio |
It will thus be seen that this Court came to the conclusion that the reasons Which weighed with the High Court for the distinction drawn were not correct and hence the conviction of Kasturi Lal 'had to be set aside This decision also does not help the appellant. Ratio |
In Chandub hai 's case the prosecution relied on the testimony of PWs 1, 5 and 6 'Both the courts below found their testimony to be unreliable in several particulars and acquired the co accused of the appellant in two stages. Ratio |
This Court concluded that the appellant 's case could not be distinguished from that of his two acquitted companions insofar as the reli ability of the ocular evidence of three eye witnesses was concerned. Ratio |
It was in the said circumstances that this Court thought that the conviction of the appellant under section 302/34, IPC was not justified, particularly, after the evidence of the three witnesses was found to be unreliable. Ratio |
this also, therefore, is not a case where the Appellate Court disagreed with the appreciation of the evidence by the Trial Court and came to a different conclusion regarding the participation of others in the commission of the crime. Ratio |
In Sukh Ram 's case to which one of us (Ahmadi.J.) was a party, this Court interferred with the conviction of the appellant recorded with the aid of section 34 by the High Court because on the facts found proved on evidence the conviction of the appellant could not be sustained on the acquittal of the co accused on the... |
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