APEX COURT – whether the finding of acquittal recorded by the Trial Court was legal or/and proper and was, therefore, entitled to record its own finding of either affirmance or reversal. – first, there was no motive on the part of the accused persons (appellants) to kill Hariya. Second, the intention was to teach a lesson to Hariya because he had insulted Gaya Prasad in Panchayat on an incident which had occurred in marriage in their community in recent 12 past. Third, Dr. Bharadwaj (PW-14) who performed post mortem did not say in his evidence that injuries caused to Hariya were sufficient in the ordinary course of nature to have caused death, and lastly, Hariya survived for 14 days from the date of incident.= factors were rightly taken into consideration for holding the appellants guilty for committing offence falling under Section 304 Part II of IPC. Moreover, we cannot again de novo re-appreciate the evidence. It is not permissible unless the findings of the High Court are wholly perverse or against the evidence.

Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1008 OF 2008
Pooranlal & Anr. Appellant(s)
VERSUS
The State of Madhya Pradesh Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) This appeal is filed by the two accused persons
against the Judgment/order of the High Court of
Madhya Pradesh at Jabalpur dated 08.12.2006 in
Criminal Appeal No.934 of 1991 whereby the High
Court partly allowed the appeal filed by the State
against the acquittal order dated 07.05.1991 of the
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Additional Sessions Judge, Khurai, Dist. Sagar in
Sessions Trial No.340 of 1990. The High Court while
upholding the acquittal of other three accused set
aside the acquittal of the appellants herein and
convicted them for an offence punishable under
Section 304 Part II read with Section 34 of the Indian
Penal Code, 1860 (hereinafter referred to as ‘IPC’) and
awarded each of them to undergo rigorous
imprisonment for a term of five years and to pay a fine
of Rs.2000/- each and, in default of payment of fine, to
further undergo simple imprisonment for a period of
three months.
2) In order to appreciate the issues arising in the
appeal, relevant facts need mention infra.
3) In short, the case of the prosecution on which the
trial against the appellants and other three accused
proceeded was as follows:
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4) One Hariya (deceased) was the resident of Village
Kublai. He was a railway employee. On 30.08.1990, at
around 5.00 a.m., he left for nearby Village-Khurai on
a cycle to catch a Train to join his duty at a nearby
place. At that time, it was heavily raining. When
Hariya was passing through a Mahua tree in village –
Nirtala, one person suddenly got down from the tree
and hit him with the Lathi (stick). Thereafter four
more persons armed with Lathis came there and took
him away from the road. All the five persons then
assaulted him with Lathies saying in Hindi “maro sale
ko, bada panch bana firta hai” (beat him bastard –
what does he think of him by becoming Panch-Head).
5) At that time, two sons of Hariya, namely, Ramesh
(PW-1) and Banshi (PW-2) were also reached there on
their cycle as they were also going to earn their
livelihood in nearby village. One Daryao Singh(PW-3)-a
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villager, who was going on his tractor to fill diesel in
his tractor, also reached there.
6) These persons witnessed the incident of beating
and, therefore, ran towards Hariya to save him from
the assailants. The assailants, on noticing that a
group of persons is fastly approaching at the scene of
occurrence, ran away from there leaving injured
Hariya lying on the roadside.
7) Ramesh (PW-1), Banshi (PW-2), Daryao Singh
(PW-3) and some other persons took Hariya to Police
Station, Khurai in a tractor where he lodged the FIR
(Ex. P-33). Hariya was then taken to the Civil
Hospital, Khurai for medical treatment. Dr. Rakesh
Saxena (PW-11) found 11 injuries on the body of
Hariya. In the meantime, the SHO Police Station,
Khurai brought Naib Tahsildar, B.P. Shukla (PW-9) in
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the Hospital for recording dying declaration of Hariya.
It was accordingly recorded (Ex.P-20).
8) Hariya struggled for survival but eventually
succumbed to the injuries on 13.09.1990 almost after
14 days of the incident. Dr. Prabhat Bharadwaj
(PW-14) performed the post mortem of his dead body.
9) According to the prosecution, the assailants and
Hariya belonged to the same caste. There was previous
enmity between one assailant-Gaya Prasad and Hariya
due to some verbal utterances, which were exchanged
between both of them in a marriage wherein the Samaj
Panchayat of which Hariya was the head, had imposed
some fine on Gaya Prasad. It is due to this reason,
this incident took place.
10) The Police Authorities then undertook the
investigation, which included collecting of material
evidence, preparation of site map, blood stained earth
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from the place of occurrence, apprehending five
accused persons, namely, (1) Pooranlal (2) Gaya
Prasad (3) Mahendra (4) Shyamlal and (5) Ramlal,
their custodial interrogation, recording of statement of
several witnesses, recovery of sticks etc.
11) The five accused persons were accordingly
charged with the offences punishable under Sections
148, 302/149 and 342 IPC. All the accused persons
abjured their guilt and took a stand that they have
been falsely implicated in the case. So far as
Pooranlal, Shyamlal and Ramlal are concerned, they
took a plea that they never had any enmity with the
deceased because they reside in some other village.
12) To prove its case, the prosecution examined 17
witnesses. The learned Trial Judge, in his order dated
07.05.1991, recorded a finding that the prosecution
has failed to prove the charges against all the accused
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persons beyond the shadow of doubt and accordingly
proceeded to record the finding of “not guilty” against
all of them. In other words, the Trial Court acquitted
all the five accused persons from the charges.
13) Challenging the order of acquittal, the State filed
appeal before the High Court. By impugned judgment,
the High Court partly allowed the appeal filed by the
State. The High Court upheld the acquittal of three
accused, namely, Mahindra, Shaymalal and Ramlal
but reversed the order of acquittal against two accused
persons, namely, Pooranlal and Gaya Prasad and
convicted both the accused under Section 304 Part II
read with Section 34 IPC and sentenced each of them
to undergo rigorous imprisonment for five years’ and a
fine of Rs.2000/- each and, in default of payment of
fine, to further undergo three months’ simple
imprisonment.
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14) Felt aggrieved, accused Pooranlal and Gaya
Prasad have filed this appeal by way of special leave
against the judgment of the High Court challenging
their conviction. So far as the State is concerned, they
accepted the order of the High Court by which three
accused, namely, Mahendra, Shyamal and Ramlal
were acquitted. In this view of the matter, the order of
acquittal of three accused named above has become
final.
15) Therefore, the only question, which arises for
consideration in this appeal, is whether the High Court
was justified in setting aside the order of acquittal of
Pooranlal and Gaya Prasad (appellants herein) and
was also justified in convicting both of them for an
offence punishable under Section 304 Part II read with
Section 34 IPC?
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16) Heard Mr. Vijay Pratap Singh, learned counsel for
the appellants and Mr. Sunny Choudhary, learned
counsel for the respondent.
17) Having heard the learned counsel for the parties
and on perusal of the record of the case, we find no
merit in this appeal. In other words, in our opinion,
the High Court was justified in setting aside the
acquittal order in respect of the appellants and
convicting them under Section 304 Part II read with
Section 34 IPC.
18) This is how the High Court dealt with the case of
the appellants while separating their case from other
three accused in Paras 22 to 26 and found them guilty
for commission of offence in question:
“22. Thus, even after ignoring the eye-witness
account available on record, the conviction of R-1
Pooran and R-2 Gayaprasad could be founded on
the First Information Report (Ex.P-33), lodged by
the deceased, and his dying-declaration (Ex.P-20).
In the aforesaid two documents, there is
9
consistency with regard to the motive prevailing in
their minds and overt act of accused Pooranlal,
who had caused injury on the head of the deceased
even though no bony fracture was found and
subsequent assault by other including Gayaprasad.
However, it is also to be noticed that no opinion
has been expressed by Autopsy Surgeon PW-14 Dr.
Prabhat Bharadwaj that injury was sufficient in the
ordinary course of nature to have caused death.
Further, admittedly, the deceased had survived for
14 days after the incident.
23. Keeping all these factors in mind, we are of the
opinion that as far as finding of ‘not guilty’
recorded against Mahendra, Shyamlal and Ramlal
is concerned, it calls for no interference, as the
same is based on proper appreciation of evidence.
Nothing could be pointed out to us that finding
against them is also perverse, but as regards the
finding in favour of R-1 Pooranlal and R-2
Gayaprasad, it is not only contrary to the evidence
on record, but is also perverse and unreasonable.
24. However, as noted already, R-2 Gayaprasad
only intended to settle score with Hariya for
insulting him by requiring to pay the amount of
fine for participating in the marriage of Hariya’s
son. In other words, while striking the lathi blows,
none of them had any intention to kill Hariya. In
this view of the matter, R-1 Pooranlal and R-2
Gayaprasad deserved to be convicted for
commission of offence of culpable homicide not
amounting to murder and punishable under Secton
304 Part II of the IPC: See AIR 1987 SC 1265 (State
of Orissa vs. Bhagwan Barik) and AIR 2000 SC 1374
(Camila Vaz vs. State of Goa.)
25. The incident had occurred nearly 16 years
before and the R-1 Pooranlal and R-2 Gayaprasad
were released on bail during pendency of this
appeal. In these circumstances, sentence of
rigorous imprisonment for a term of 5 years with
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fine of Rs.2000/- would be sufficient to meet the
ends of justice.
26. Accordingly, the appeal against acquittal of
Mahendra, Shyamlal and Ramlal is hereby
dismissed, but stands allowed in part against
Pooranlal and Gayaprasad. While affirming their
acquittal in respect of the offences punishable
under Sections 148, 302, 302 read with 149 and
342 of the IPC, we convict R-1 Pooranlal and R-2
Gayaprasad for having committed an offence
punishable under Section 304 Part II read with
Section 34 of the IPC. Each one of them is
sentenced to undergo rigorous imprisonment for a
term of 5 years and to pay a fine of Rs.2000/- and
in default of payment of fine, to further undergo
simple imprisonment for a period of 3 months.”
19) We find no good ground to interfere with the
aforementioned findings of the High Court. In our
opinion, the findings of the High Court are based on
proper appreciation of evidence which the High Court
was entitled to record in an appeal arising out of the
order of acquittal once the leave to file the appeal to
challenge the order of acquittal was granted to the
State by the High Court.
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20) In other words, the High Court was entitled to
appreciate the evidence with a view to find out as to
whether the finding of acquittal recorded by the Trial
Court was legal or/and proper and was, therefore,
entitled to record its own finding of either affirmance
or reversal.
21) The evidence available on record, in our opinion,
did establish beyond reasonable doubt that the
appellants’ case was capable of being separated from
other three accused with a view to find out their role in
the incident as against the other three accused.
22) This we say for the reasons that, first, there was
no motive on the part of the accused persons
(appellants) to kill Hariya. Second, the intention was
to teach a lesson to Hariya because he had insulted
Gaya Prasad in Panchayat on an incident which had
occurred in marriage in their community in recent
12
past. Third, Dr. Bharadwaj (PW-14) who performed
post mortem did not say in his evidence that injuries
caused to Hariya were sufficient in the ordinary course
of nature to have caused death, and lastly, Hariya
survived for 14 days from the date of incident.
23) In the facts and circumstances of the case as
taken note of supra, we are of the considered opinion
that these factors were rightly taken into consideration
for holding the appellants guilty for committing offence
falling under Section 304 Part II of IPC.
24) Learned counsel for the appellants, no doubt,
vehemently argued that the appellants should also
have been acquitted like the other three accused
named above. It was also his submission that there
was no evidence much less sufficient evidence against
the appellants for holding them guilty for an offence
falling under Section 304 Part II IPC.
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25) However, in the light of what we have discussed
above wherein we have given our reasoning, it is not
possible to accept the submission of learned counsel
for the appellants. Moreover, we cannot again de novo
re-appreciate the evidence. It is not permissible
unless the findings of the High Court are wholly
perverse or against the evidence. Such is not the case
here.
26) In the light of foregoing discussion, we find no
merit in the appeal. The appeal thus fails and is
accordingly dismissed resulting in upholding of the
order of the High Court.
27) As a result thereof, the bail granted to Gaya
Prasad (appellant No.2) by this Court’s order dated
13.04.2009 stands cancelled. He is directed to
surrender and undergo the remaining jail sentence
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awarded by the High Court in case, he has not so far
undergone awarded sentence.
28) So far as Pooranlal (appellant No.1) is concerned,
since he had not applied for bail, it may be that during
this period he may have completed his full period of
jail sentence. Since learned counsel for the appellants
is unable to make any statement on this issue, we are
of the view that the Trial Court will verify this fact from
jail records and other relevant material and after
ascertaining as to how much jail sentence Pooranlal
had already undergone out of five years, will
accordingly pass necessary orders.
…………………………………….J.
[R.K. AGRAWAL]
.…………………………………..J.
[ABHAY MANOHAR SAPRE]
New Delhi;
October 25, 2017
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