Swatanter Kumar, J.— These appeals are directed against the judgment of the High Court of Rajasthan, Bench at Jaipur dated 15-3-2005 in a case of communal violence. The trial court vide its judgment dated 7-9-1999 returned a finding that the charge against the three accused, namely, Abdul Mannan, Afzal and Abdul Zabbar under Sections 302/149, 148, 324/149 and Section 449 of the Penal Code, 1860 (for short “IPC”) was fully established beyond reasonable doubt and sentenced them as follows:
(a) for committing an offence under Sections 302/149 IPC, all the three accused were awarded rigorous imprisonment for life along with a fine of Rs 5000 each and in default of payment of fine to suffer six months' simple imprisonment;
(b) under Section 148 IPC, all the three accused were awarded one year's rigorous imprisonment;
(c) under Sections 324/149 IPC, all the accused were awarded one year's rigorous imprisonment each; and
(d) lastly, under Section 449 IPC, they were awarded three years of rigorous imprisonment each along with a fine of Rs 1000 each, in default of payment of fine, to undergo simple imprisonment for three months.
2. Aggrieved by the judgment of the trial court, all the three accused preferred an appeal before the High Court, raising various issues in relation to the appreciation of evidence, false implications, contradiction in statements of witnesses and that no evidence had been led against them. On these premises, they prayed for setting aside of the judgment of the trial court and claimed acquittal.
3. The High Court vide its judgment dated 15-3-2005, acquitted all the accused and passed the following order:
“9. That takes us to the evidence of the eyewitnesses examined at the trial. Coming to the testimony of Mahesh (PW 4) we notice that in his examination-in-chief he deposed that a mob of around 70 persons of muslim (sic) attacked the house of Govind Narain, but he could identify only Mehboob, Hanif and Zabbar. He however, could not identify Afzal and Mannan. In his cross-examination Mahesh stated that he did not narrate the incident to anybody for 5-7 days. He did not go to jail or other place for the purpose of identification of the accused.
Kanhaiya Lal (PW 5) deposed that a mob of 60-70 persons belonging to Muslim community entered the house of Govind Narain. He could identify Afzal, Kadir, Islam, Bada Bhaiya, two brothers of Noor Tractorwala, Zabbar Tractorwala, Mannan, Hanif and Mehboob. In the cross-examination he however stated that he did not narrate the names of these persons to police.
Satyanarain (PW 7) in his deposition stated that a mob of 60 persons attacked the house. Afzal, Mota, Lakhara, Hanif, Mehboob, Zabbar Ahmad Tractorwala were the members of the mob. He could not say as to who inflicted the injury on his person. This witness was declared hostile by the prosecution. He could not identify Abdul Mannan in the court.
Having closely scrutinised the evidence of Mahesh, Kanhaiya Lal and Satyanarain we are of the opinion that element of consistency is missing from their testimony. A thorough and scrupulous examination of the facts and circumstances of the case leads to an irresistible and inexplicable conclusion that the prosecution has not established the charges levelled against all the three accused by producing cogent, reliable and trustworthy evidence. Testimony of Mahesh (PW 4), Kanhaiya Lal (PW 5) and Satyanarain (PW 7) is ambulatory and vacillating and it is not safe to rely upon. Variations, infirmities, additions, and embellishments in the evidence of these witnesses are of such nature that could undermine the substratum of the prosecution case. The prosecution could only be able to establish that an unruly mob of Muslims attacked the house of the deceased but could not prove beyond reasonable doubt that the three appellants were the members of unruly mob and they inflicted the injuries.
On examination of testimony of these three witnesses Mahesh (PW 4), Kanhaiya Lal (PW 5) and Satyanarain (PW 7) from the point of view of trustworthiness we find it untruthful. The learned trial Judge, in our opinion, did not properly appreciate the prosecution evidence and committed illegality in convicting and sentencing the appellants.
10. For these reasons we allow the instant appeals and set aside the judgment dated 7-9-1999 of the learned Special Judge Shri G.C Sharma, Communal Riots and Man Singh Murder Case, Jaipur in Sessions Case No. 1 of 1997. We acquit the appellants Abdul Zabbar, Afzal and Abdul Mannan of the charges under Sections 148, 302/149, 324/149 and 449 IPC. The appellant Abdul is on bail, he need not surrender and his bail bonds stand discharged. The appellants Abdul Zabbar and Afzal, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case.”
The State of Rajasthan aggrieved by the said judgment of acquittal, preferred the present appeal before this Court.
4. Let us briefly examine the case of the prosecution. As per the submission of the State, this Court should set aside the judgment of acquittal and punish the accused in accordance with law.
5. Satyanarain Baheti made a report to the SHO, Police Station Malpura in front of the hospital at Malpura on 9-12-1992 to the effect that, at about 11.15 a.m that morning the complainant had been standing outside his house in Bahetiyon-ke-Mohalle in Ward No. 6 of Kasba Malpura. Hearing the noise of the stampede and uproar, he entered his house and closed the door. After a while a crowd came from the side of Hathai and started pelting stones at his house. Two or three persons came inside the house after breaking the bolt of the door. Satyanarain ran to stop them but those persons started beating him. Thereafter, 8-10 persons including Afzal, son of Mota; Mehboob, son of Jumma; two brothers of Tractorwala, Syyed Zabbar Ahmad Tractorwala; Abdul Mannan, son of Zabbar; Hanif, son of Iqbal and Kadir, Islam came inside by climbing the back wall. These persons were duly armed with knife, pharsi, sword and lathis. They gave two or three blows with swords on the head of Govind Narain, father of Satyanarain. The remaining persons also inflicted injuries on the head of Govind Narain.
6. Hari Narain, kakaji of Satyanarain, was also standing there and these persons also inflicted injuries with sword and pharsi on his head. Govind Narain fell down, even then these persons did not stop inflicting injuries on his arms and shoulders with lathis. Besides Kanhaiya Lal Baheti, Babulal Aggarwal and Mahesh Mukar Kacholiya had also witnessed the occurrence. These persons, who had witnessed the occurrence, along with the complainant, brought Govind Narain and Hari Narain to the hospital at Malpura. At the hospital, the doctor after examining them declared both of them dead. Resultantly, an FIR was registered on 9-12-1992 at about 12.45 p.m; the case was investigated.
7. On completion of the investigation, the charge-sheet was filed before the court of competent jurisdiction. The case was committed only with regard to two accused, namely, Hanif and Mehboob. Vide its judgment dated 12-8-1997, the trial court acquitted both the accused persons. The case in relation to the other accused was then committed to the trial court. Two other accused, namely, Firoze and Anwar were discharged by the court vide judgment dated 21-3-1998. Thus, the subject-matter of the judgment of the trial court dated 7-9-1999 relates only to the three accused, namely, Abdul Zabbar, Afzal and Abdul Mannan.
8. The prosecution had examined seven witnesses including three eyewitnesses (namely, PW 7 and complainant Satyanarain, PW 4 Mahesh and PW 5 Kanhaiya Lal) as well as PW 2, Medical Examiner, Dr. Chandra Prakash, and the investigating officer, PW 3, Shri Rajendra Ojha. The incriminating evidence against the accused was put to the accused while recording their statements under Section 313 CrPC.
9. The plea taken by the accused was that these witnesses are deposing falsely, and have implicated them in the commission of the crime at the instance of the police. Abdul Mannan took the plea of false implication, and claimed that he was in a school at a distance of 18 km away from Malpura. Accused Afzal also took the plea of false implication, and stated that there were two or three persons by the name of Afzal Lakhara and he had not been present at the place of occurrence. Similar stand was taken by Zabbar.
10. The learned trial court discussed the prosecution evidence as well as the defence at great length. While holding the statements of the above eyewitnesses trustworthy and finding the witnesses led by the defence as not credible, the court held as under:
“In the opinion of the court, the evidence of witnesses Ramnarain and Nathu Lal does not inspire confidence. When this court could not ignore the evidence of witnesses, Mahesh, Kanhaiya Lal and Satyanarain in any manner, which is the reliable evidence of the eyewitnesses to the occurrence, under such circumstances, the evidence of witnesses, Ramnarain, Nathu Lal, Satyanarain and Ratan Singh does not inspire confidence of the court that at the time of occurrence, the three accused persons were not present at the place of occurrence, rather they were present at the place told by the defence witnesses. Such type of defence evidence, appears to be absolutely fabricated, because such type of evidence can be prepared easily.”
11. The trial court had specifically recorded the finding that the prosecution has been able to establish its case that the role of the accused in inflicting injuries upon the body of the deceased persons had fully been established and therefore, they were liable to be punished in accordance with law. However, the High Court while upsetting the said finding noticed that PW 4, PW 5 and PW 7 were untruthful witnesses and that the trial court had not properly appreciated the prosecution evidence, and therefore, committed an illegality in convicting and sentencing the accused.
12. As is evident from the above recorded findings, the judgment of conviction was converted to a judgment of acquittal by the High Court. Thus, the first and foremost question that we need to consider is, in what circumstances this Court should interfere with the judgment of acquittal. Against an order of acquittal, an appeal by the State is maintainable to this Court only with the leave of the Court. On the contrary, if the judgment of acquittal passed by the trial court is set aside by the High Court, and the accused is sentenced to death, or life imprisonment, or imprisonment for more than 10 years, then the right of appeal of the accused is treated as an absolute right subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the Constitution of India and Section 379 of the Code of Criminal Procedure, 1973. In light of this, it is obvious that an appeal against acquittal is considered on slightly different parameters compared to an ordinary appeal preferred to this Court.
13. When an accused is acquitted of a criminal charge, a right vests in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt. If the prosecution has succeeded in discharging its onus, and the error in appreciation of evidence is apparent on the face of the record then the court can interfere in the judgment of acquittal to ensure that the ends of justice are met. This is the linchpin around which the administration of criminal justice revolves.
14. It is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that the accused is guilty then the court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence.
15. We may now refer to some judgments of this Court on this issue. In State of M.P v. Bacchudas (2007) 9 SCC 135, the Court was concerned with a case where the accused had been found guilty of an offence punishable under Section 304 Part II read with Section 34 IPC by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this Court, stating that the Supreme Court's interference was called for only when there were substantial and compelling reasons for doing so. After referring to earlier judgments, this Court held as under:
“9. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh v. State of M.P (2003) 3 SCC 21) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225, Jaswant Singh v. State of Haryana (2000) 4 SCC 484, Raj Kishore Jha v. State of Bihar (2003) 11 SCC 519, State of Punjab v. Karnail Singh (2003) 11 SCC 271, State of Punjab v. Phola Singh (2003) 11 SCC 58, Suchand Pal v. Phani Pal (2003) 11 SCC 527 and Sachchey Lal Tiwari v. State of U.P (2004) 11 SCC 410
10. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference.”
16. In a very recent judgment, a Bench of this Court in State of Kerala v. C.P Rao (2011) 6 SCC 450 decided on 16-5-2011, discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715, (1961) 3 SCR 120, (1961) 1 Cri LJ 766 the Court held as under: (C.P Rao case (2011) 6 SCC 450)
“13. In coming to this conclusion, we are reminded of the well-settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715, (1961) 3 SCR 120, (1961) 1 Cri LJ 766. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows: (AIR pp. 719-20, para 9)
‘9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case (1933-34) 61 IA 398 afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) “substantial and compelling reasons”, (ii) “good and sufficiently cogent reasons”, and (iii) “strong reasons”, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.’”
17. Reference can also be usefully made to the judgment of this Court in Suman Sood v. State of Rajasthan (2007) 5 SCC 634, where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka (2007) 4 SCC 415. Emphasising that expressions like “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal, the Court stated that such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, then the Court may interfere with an order of acquittal.
18. In light of the abovestated principles, we revert to the facts of the present case. As already noticed, three eyewitnesses PWs 4, 5 and 7 were found to be truthful and reliable witnesses by the trial court whereas those very witnesses were held to be untrustworthy witnesses by the High Court. We shall shortly proceed to discuss the statements of these three witnesses in some detail, as it is necessary for us to practically reappreciate the entire evidence in view of the serious conflict, on the findings of fact, in the two judgments under consideration in the present appeal.
19. One must notice another very significant error in the judgment of the High Court. Though the High Court has made a reference to the injuries inflicted upon the body of the deceased as detailed by Dr. Chandra Prakash (PW 2) in his report, there is no discussion of his statement, in regard to nature of injuries inflicted and the weapon used for inflicting such injuries. There is also no discussion in the judgment of the High Court on the comparative evaluation of medical evidence, ocular evidence and the documentary evidence produced by the prosecution on record. These are certainly material evidence which have either been completely ignored, or not appropriately appreciated by the High Court. This renders the judgment of the High Court perverse, and provides strong reasons for this Court to interfere with the judgment of acquittal. In our considered view, the order of acquittal can hardly be sustained where it is based just on some contradiction in the statements of the (sic witnesses) while completely ignoring the entire case of the prosecution particularly when the prosecution has been able to prove its case beyond reasonable doubt.
20. Dr. Chandra Prakash (PW 2), who on 9-12-1992 was posted as SMO at Medical Centre, Malpura had conducted the post-mortem on the body of both the deceased persons. The injuries on the body of the deceased Hari Narain, aged 70 years, were recorded by this witness in his report (Ext. P-4) which reads as under:
“(1) Lacerated wound in the size 3″ × 2/10″ penetrating up to the bones on the left side of the head which was up to parietal region. This injury was having depressed fracture. The blood was oozing out from the wound.
(2) Lacerated wound in the size 3.5″ × 2/10″ penetrating up to the bones. In this injury also there was depressed fracture on the right parietal region of the (sic). The blood was oozing out from this injury also. And the brain matter was coming out.
(3) Incised wound in the size of 3″ × 2/10″ × ½″ on the upper arm behind the shoulder and the blood was oozing out from it.
On the dead body aforesaid external injuries were found. In my opinion the death of Hari Narain was cause (sic) due to Neutrogena (sic) shock, that is, injury of the brain caused by Injuries 1 and 2.
All the aforesaid injuries were of before death. Injuries 1 and 2 on the head of Hari Narain were in general nature sufficient to cause death. The death of Hari Narain was caused within 2 to 3 hours of (sic) the post-mortem. I prepared the post-mortem report which is Ext. P-4 which is in my handwriting and it is signed. It bears my signature from A to B and I have entered the cause of death at C to D.
On the same date in the daytime at 1.30 p.m I conducted the post-mortem on the dead body of Govind Mahajan, son of Lachh Raj, aged 72 years, resident of Malpura and found the following injuries on the dead body which were caused before death:
(1) A wound of cut in the size 4″ × 2/10″ penetrating up to the bones and even up to the brain. And the brain metter (sic) was coming out. This injury was on the centre of the head from where the blood was oozing. Both the edges of the wound were sharp.
(2) Lacerated wound in the size of 3″ × ¼″ deep up to the bones on the centre with depressed fracture. And obtuse injury all around the right eyes (sic).
(3) The blood was coming out from the right ear.
In my opinion the death of Govind was caused due to Neutrogena (sic) shock which was caused by Injury 1 and due to haemorrhage which was caused by Injury 2. All the 3 injuries were caused before the death and in general nature were sufficient to cause the death of Govind. The death of Govind was caused within 2 to 3 hours from (sic) conducting the post-mortem. I have prepared the post-mortem report which is exhibit and is verified. It bears my signature at A to B and I have entered the cause of death at C to D.”
21. Mahesh (PW 4) in his statement in court had stated that he saw a mob of persons belonging to the Muslim community approaching when he was standing outside his house. Some of them held swords in their hands, some of them lathis and some held pharsi and once they reached the house of Govind Narain, they forcibly opened the door. He went on to the roof of Premchand Mehru's house, from where he could see that some persons were pushing the door of Gopal Narain's house. He identified the persons who jumped inside the house, as Mehboob, Hanif and Abdul Zabbar. Even in the court, he rightly identified one person, Abdul Zabbar. This witness stated that he knew Zabbar even prior to the occurrence. He had also taken Kanhaiya Lal, who was injured, to the hospital. He had seen the accused persons at the place of incidence. He was subjected to lengthy cross-examination. In his cross-examination, he gave a few vague answers like he does not remember whether he had discussed the identity of the accused persons with Satyanarain, whether 4, 5 or 50 police officers were present at the funeral, etc.
22. Corroborating the statement of PW 4, Kanhaiya Lal (PW 5) stated that after seeing the mob, he shut the door of his house, called Malpura Police Station and climbed to the roof. He could see persons climbing the roof of Govind Narain's house and he could recognise Afzal, Kadir, Islam, Bada Bhaiya, two brothers of Tractorwala, namely, Zabbar Tractorwala and Mannan, Hanif and Mehboob. According to him these persons went inside the house of Govind Narain and created nuisance. This witness, according to the trial court, rightly identified the persons named by him. This witness also stated that he knew these persons even before the incident. All the three accused were identified by the witness in court.
23. Later on, when the police came and the persons from the mob fled away, PW 5 went to the house of Govind Narain, the door was broken and he noticed that both Govind Narain and Hari Narain were lying in a pool of blood and were unconscious. Satyanarain had sustained injuries. Thereafter he took all of them to the hospital where two deceased persons were declared “brought dead”. In his cross-examination also nothing material was brought out by the defence. He did admit that he could not identify all the persons, who had come there.
24. PW 6, Radhey Shyam is the investigating officer and was the SHO of Police Station Malpura. According to him, he was busy in maintaining law and order situation when he received the information that the assailants had entered the house of one Govind Narain Waheti and had beaten those inside; and that the latter had been taken to the hospital.
25. Satyanarain (PW 7), who is the most material witness of the prosecution, had made the report (Ext. P-7) to PW 6. He is the injured witness. He stated that a mob of 50-60 persons had come towards that area shouting, “Maro! Maro!”. He went inside his house and closed the door but in a short while stones were thrown at the house. Some members of the mob started pushing the door and eventually broke the door and PW 7 ran away for safety.
26. Afzal, Mota, Lakhara, Mehboob, Hanif Tractorwala, Zabbar Ahmad Tractorwala came inside and some other persons whom PW 7 could not identify started assaulting Govind Narain and Hari Narain with lathi and pharsi which he witnessed from his room. According to PW 7, the injuries were caused on the head. He came out of his room and tried to save them, and in the process, he also suffered injuries. In the meantime, the police siren blew and upon hearing the same, these persons ran away. This witness correctly identified Zabbar and Afzal in court and stated that these persons had caused injuries to the deceased. This witness referred to the place of occurrence, preparation of the site plan and medical report by the doctor, he admitted his signature on all these documents including Ext. P-8.
27. It appears from the record that during the recording of statement of this witness (PW 7), the Public Prosecutor sought permission to declare the witness hostile. Without declaring him hostile, the Court had permitted him to be cross-examined by the Public Prosecutor. This related to the fact that after hearing portion C to D, part of Ext. P-9, the witness has stated that after identifying the accused, he had stated the name of the accused as Abdul Mannan to the police. He then stated that Abdul was also there, however, he could not identify him definitely. At that stage, this witness was declared hostile. The cross-examination of these witnesses by the Public Prosecutor as well as by the defence counsel did not have an adverse impact on the main case of the prosecution.
28. In his cross-examination, PW 7 said that he had forgotten and therefore he had stated that he did not go to the police station for lodging the report. In fact he wrote the report in his own hand (Ext. P-7). According to him, the persons who had assaulted him were the same persons who had assaulted his father and uncle. He also tried to wriggle out of his earlier statement that he could identify the accused. It needs to be noticed that his statement, which was recorded in the court on 17-3-1999, was completely in consonance with the case of the prosecution but when he appeared in the court for further cross-examination on 18-3-1999, he tried to wriggle out of his main statement. Thus, it is not very difficult to understand the variation in his statement resulting in the further cross-examination. This entire evidence has to be read along with the statement of the investigating officer (PW 6). Establishment of a complete chain of events and clear identification of the persons assailing the deceased lead to the irresistible conclusion that the prosecution has been able to bring home the guilt of the accused. Undoubtedly, emphasis on the second half of the statement of PW 7 cannot completely demolish the case of the prosecution which otherwise stands proved by the statements of PW 4, PW 5, PW 6 and PW 2.
29. The strain on the witness (PW 7) due to the incident cannot be ruled out inasmuch as he had lost his father, uncle and was himself injured. All the basic facts that supported the case of the prosecution were stated by him on 17-3-1999 when the case was adjourned for further cross-examination on 18-3-1999 when he made a statement at variance with his earlier statement in court as well as his statement recorded under Section 161 CrPC. Another fact which the Court cannot lose sight of is that Ext. P-2 was not a document written by the police but was written in his own hand and duly signed by him which he admitted even in his statement in court.
30. Satyanarain (PW 7) has also made statements which fully aid the case of the prosecution and his statement recorded on the adjourned date before the trial court i.e 18-3-1999 which is at variance cannot be treated as gospel truth. In fact the bare reading of the statement clearly shows this fact. Even if we exclude the statement of PW 7 from consideration, then identity of the accused is still fully established by the statements of PW 3, PW 4, PW 5 and PW 6. There is no reason, whatsoever advanced, as to why PW 4 and PW 5 (neighbours of the deceased) who are otherwise independent witnesses, and the doctor would involve the accused falsely. There is no animosity between the parties, and in fact according to these witnesses, they knew the accused particularly Abdul Zabbar, Afzal and Mannan for quite sometime.
31. There is no reason for the Court to hold that PWs 4 and 5 are not trustworthy. Their statements describe the occurrence in its proper course and are compelling evidence of the same. We do not find it appropriate to discard their statements as not inspiring confidence. The statement of these witnesses must be appreciated in the proper perspective. It was an incident involving a mob but only few persons had entered the house of the deceased, out of which 7 to 8 persons could be identified including the three accused as having inflicted injuries on the body of the deceased and were duly identified by the prosecution witnesses. The injury on the head duly finds corroboration from the statement of the doctor i.e Ext. P-4. It is not a case where the medical evidence does not support or corroborate the ocular evidence.
32. Some discrepancies or some variations in minor details of the incident would not demolish the case of the prosecution unless it affects the core of the prosecution case. Unless the discrepancy in the statement of witness or the entire statement of the witness is such that it erodes the credibility of the witness himself, it may not be appropriate for the Court to completely discard such evidence.
33. The core of the prosecution case is that when the mob came, PWs 4 and 5 ran to their houses, locked their doors, went to the roof of the houses which were adjacent to the house of the deceased and watched some members of the mob, of whom they could identify a few, assault the deceased. This statement clearly shows the trustworthiness of these witnesses as they have stated that there were some other persons whom they could not identify. However, both these witnesses and complainant Satyanarain clearly identified the persons who had entered and assaulted the deceased persons. Though Satyanarain (PW 7) fully supported the case of the prosecution that he was also assaulted by these persons, he did speak in a different voice the next day before the court. In our considered opinion the cumulative effect of the ocular evidence and documentary evidence is that the prosecution has been able to establish its case beyond reasonable doubt.
34. We may also refer to a very recent judgment of this Court, given by us in State of U.P v. Mohd. Iqram (2011) 8 SCC 80 whereby upsetting the judgment of acquittal passed by the High Court, this Court held as under:
“26. Once the prosecution had brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution, and having failed to do so, the trial court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable.
27. The trial court did not find the evidence of Bhugan (DW 1), examined by Mohd. Iqram, one of the respondents, worth acceptance. The High Court did not even make any reference to him.
28. It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e the conclusions of the courts below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. …
29. In the instant case, the circumstantial evidence is so strong that it points unmistakably to the guilt of the respondents and is incapable of explanation of any other hypothesis than that of their guilt. Therefore, findings of fact recorded by the High Court are perverse, being based on irrelevant considerations and inadmissible material.”
35. The learned counsel for the accused had placed reliance upon the judgment of this Court in Shivalingappa Kallayanappa v. State of Karnataka 1994 Supp (3) SCC 235 to contend that there was no common object to commit murder. The appellants cannot derive much advantage from the judgment of this Court in that case: first, the facts of that case are entirely different from those of the case in hand. In that case, it was established by the prosecution that A-1 to A-5 formed an unlawful assembly wherein A-1 and A-2 were armed with axes and A-3, A-4 and A-5 with sticks in order to assault the two deceased persons amongst others. While A-3 did not participate, A-4 and A-5 only dealt blows on legs and arms with their sticks but A-1 and A-2 dealt blows to the head with the butt end of their axes which proved to be fatal. Convicting A-1 and A-2 under Sections 302/149 IPC and A-3 to A-5 under Sections 326/149 IPC, the Court held that taking all the circumstances of the case into consideration, the common object can be held to be to cause grievous hurt only and not to commit murder. However, in the present case, common object to commit murder has been fully proved.
36. Second, the case of the prosecution is not that the entire mob had entered the house of the deceased. Out of the mob of 50-60 persons only 7 to 10 persons had broken the door of the house and some of them had climbed the wall to enter the house of the deceased. These persons had raised the slogan “Maro! Maro!” and thereafter had inflicted the injuries upon the body of the deceased. The common intention could even develop on the spur of the moment when the three accused, as duly identified, were actively inflicting injuries on the body of the deceased. They, therefore, not only caused injuries to the vital body parts of the deceased, including head injury, but kept on inflicting injuries even after the deceased had fallen to the ground. The efforts of Satyanarain to save them were in vain and he himself suffered certain injuries.
37. Thus, in the present case, it has been established that more than five persons constituted an unlawful assembly and in furtherance to their common object and intent, assaulted and caused injuries to vital parts of the bodies of the deceased, ultimately resulting in their death. We, therefore, have no hesitation in holding that there is no merit in this contention of the accused and the trial court applied the law correctly.
38. Section 149 consists of two parts: the first part deals with the commission of an offence by any member of an unlawful assembly in prosecution of the common object of that assembly; the second part deals with the commission of an offence by any member of an unlawful assembly in a situation where other members of that assembly know the likelihood of the offence being committed in prosecution of that object. In either case, every member of that assembly is guilty of the same offence, which other members have committed in prosecution of the common object.
39. The final point is the common object. The case of Lokeman Shah v. State of W.B (2001) 5 SCC 235 on this point would further substantiate the case of the State and diminish the worth of the defence. The accused have inflicted the injuries after raising slogan and have commonly participated in committing the offence which resulted in the death of the deceased.
40. For the reasons aforerecorded, we find the present case a fit case for interference in the judgment of acquittal recorded by the High Court. Consequently, the appeals of the State are allowed, the judgment of the High Court is set aside and that of the trial court is restored. We concur with the finding of guilt and the quantum of punishment awarded by the trial court.
41*. The bail bonds of the accused, if any, who are on bail, are cancelled. They are directed to surrender within four weeks from today failing which the Chief Judicial Magistrate, District Tonk, Rajasthan shall ensure to take them into custody and they shall undergo the remaining part of their sentence in terms of the judgment of conviction and punishment awarded by the trial court. A copy of the judgment be sent to the Chief Judicial Magistrate concerned for information and action.