Appeal against conviction confirmed by High Court
2. The accused-appellant herein has approached this Court for assailing the judgment dated 9th April, 2009, passed by the Division Bench of the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 1487 of 1999 whereby, the High Court dismissed the appeal preferred by the accused-appellant and three co-accused persons under Section 374(2) of the Code of Criminal Procedure, 1973.
Appeal against murder and common intention
3. By way of the aforesaid appeal, the four convicts including the accused-appellant herein had assailed the judgment and order dated 22nd October, 1999 passed by the First Additional Sessions Judge, Mhow, District Indore, Madhya Pradesh3 in Sessions Case No. 524 of 1990, convicting the accusedappellant and three others namely Govardhan, Raja Ram and Bhima for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 and Section 302 of the IPC and sentencing each of them to imprisonment for life and fine of Rs.1,000/- with default stipulation.
Only one accused came to Hon’ble Supreme Court
4. It needs to be noted that only the accused/appellant has approached this Court to assail the judgment of the High Court, whereas, the remaining three accused seem not to have availed this remedy.
Facts: Assault on the complainant is due to political rivalry
6. Shri Gobariya (PW-2) lodged an FIR at the Police Station, Manpur, alleging inter alia that on 28th September, 1990 an incident took place at about 09:00 pm in his village Chak. The accused-appellant and nine others namely Babu Lal, Gyan Singh, Bhima, Birjo, Raja Ram, Ram Swaroop, Govardhan, Keshar Singh and Asha Ram were damaging the Tapra (temporary hutment) of Jagya (PW-3). Ramesh, son of the informant (PW-2) intervened and tried to pacify the accused persons and requested them to desist from damaging the hut whereupon, the assailants diverted their attention towards Ramesh and started assaulting him indiscriminately.
7. Govardhan was armed with a sword, Kannaiya (accused-appellant) was armed with an axe, Keshar Singh, Asha Ram, Bhima and Gyan Singh were armed with sticks, whereas, Raja Ram, Ram Swaroop, Birjo and Babu Lal were unarmed. These unarmed assailants used their fists and kicks to beat Ramesh whereas, the armed assailants caused injuries to him using their respective weapons.
8. The informant (PW-2) further alleged that his son, Ramesh, started bleeding profusely because of the injuries caused to him by sharp weapons and sticks, and fell down unconscious. On hearing the outcry, Madho Singh (PW-5), Ramchander (PW-4), and other villagers came there and saw the incident. The informant (PW-2) and Madho Singh (PW-5) picked up Ramesh in injured condition. It was alleged that the assailants were having a political rivalry with the complainant party and that was the cause of the assault.
Inquest done
11. The Investigating Officer (PW-13) conducted inquest on the dead body of Ramesh and sent the same for postmortem examination.
Arrest and Final report
13. The Investigating Officer (PW-13) proceeded to arrest all ten assailants named in the FIR, and, sharp weapons used in the incident were seized pursuant to the disclosures under Section 27 of the Indian Evidence Act, 1872 made by the accused-appellant, Babu Lal, Gyan Singh, Bhima, Birjo, Raja Ram, Ram Swaroop, Govardhan, Keshar Singh, and Asha Ram. The seized weapons, i.e., sword and axe were forwarded to the concerned medical officer for opinion regarding the possibility of the injuries being caused by these two weapons. Dr. M.S. Pathak (PW17) examined the weapons and gave his opinion (Exh. P-18). The seized articles were forwarded to the Forensic Science Laboratory6 from where an analysis report (Exh. P-19) was received. After concluding investigation, chargesheet was filed against the ten accused persons named in the FIR. Since the offence punishable under Section 302 of the IPC was exclusively sessions triable, the case was committed and transferred to the Court of First Additional Sessions Judge, Mhow, District Indore, Madhya Pradesh for trial.
Charges, Trial and Conviction
14. The trial Court framed charges against all the ten accused for the offences set out in the chargesheet. The accused persons pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 24 documents to prove its case. The trial Court questioned the accused persons under Section 313 of the CrPC and confronted them with the circumstances as appearing in the prosecution’s case. The accused denied the same and claimed to be innocent. However, no evidence was led in defence. At the conclusion of trial, the trial Court proceeded to acquit six accused persons, namely Babu Lal, Gyan Singh, Birjo, Ram Swaroop, Keshar Singh, and Asha Ram, and at the same time, convicted the accused/appellant alongside Govardhan, Raja Ram and Bhima for the offences punishable under Section 302 read with Section 34 of the IPC and Section 302 of the IPC and sentenced them as above vide Judgment and order dated 22nd October, 1999.
Dismissal of Appeal in High Court
15. Being aggrieved, all four convicted accused persons, preferred an appeal before the High Court which stands rejected by the judgment dated 9th April, 2009, which is subject matter of challenge in this appeal by special leave at the instance of the appellant-Kannaiya.
Findings and Conclusion
25. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment. We have threadbare re-appreciated the evidence available on record.
Counsel for accused did not dispute the death is homicidal
26. The learned counsel for the accused-appellant did not dispute the fact that the death of Ramesh was homicidal, preceded by large number of sharp and blunt weapon injuries, which fact has been proved by Dr. M.S. Pathak (PW-17), who issued the MLC (Exh. P-22) and by Dr. Ravindra Chaudhary (PW-18), who issued the post mortem report (Exh. P-23).
28. This Court in Vadivelu Thevar v. State of Madras, laid down certain guiding principles classifying witnesses into three distinct categories and elucidated the approach to be adopted in assessing their credibility, which are reproduced hereinbelow: –
“11.…………The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial…………..” (Emphasis Supplied)
No reference as to the presence of eye-witness in the FIR
29. The FIR of the incident came to be lodged on the basis of the oral statement of Gobariya (PW-2) being the father of deceased Ramesh. However, he did not support the prosecution case and was declared hostile. In the FIR, there is no reference to the presence of Puniya (PW-12), the so-called eye witness at the crime scene. The prosecution came out with a pertinent case in the FIR that the incident started with the ten accused persons named in the FIR trying to destroy the hut of Jagya (PW-3).
PW-3 did not mention the presence of other eye-witness
31. What is significant to mention here is that the witness (PW-3) did not mention about the presence of his son, Puniya (PW-12), at the place of the incident.
Significant contradiction is there in evidence regarding SOC
36. It can clearly be elicited from the evidence of Puniya (PW-12), that the incident did not take place at the hut of Jagya (PW-3) as is alleged in the FIR and rather happened in the field of Gopya. This is a very significant contradiction which has a direct bearing on the very foundation of the prosecution case, because the genesis of the occurrence and so also the place of the incident as set out in the FIR have both been materially altered in the version of Puniya (PW12), whose testimony was heavily relied upon by the trial Court as well as the High Court in arriving at the finding of guilt against the accused persons. The witness (PW-12) did not acknowledge the presence of Madho Singh (PW-5) at the place of incident when the actual assault was taking place. Rather, he emphatically stated in response to the suggestion given in the cross-examination that only he (PW-12) had reached at the place of incident after hearing the hue and cry and no one else was present there.
38. The incident took place in a small village where everyone is known to each other. Puniya (PW-12) was closely related to Ramesh. Thus, had he actually seen the incident, this fact was bound to crop up in the discussion among the family members and in that event, the name of Puniya (PW-12) as an eye witness to the alleged assault would definitely have reflected in the FIR. It is true that the reason for the said material omission could not be elicited because the first informant, Gobariya (PW-2), turned hostile. However, the fact that the name of a family member who claims to have seen the assault, was not mentioned in the FIR is undoubtedly a very vital omission which would have a bearing on the veracity of the prosecution case.
Omission to state material fact
39. We may hasten to add here that Puniya (PW-12) is not the scribe of the FIR, but the omission of his name in the FIR gains significance considering the fact that the incident started with the accused persons trying to damage the hut of Jagya (PW-3), father of Puniya (PW-12). In this background, the omission of his name in the FIR is a material one.
43. The assailants belaboured Ramesh and then ran away. The witness (PW-5) claimed that while Ramesh was being beaten by the assailants, he kept on standing at a distance of about 2 steps. He feigned ignorance as to the reason why the assailants had caused injuries to Ramesh. The next day, police came to the spot and inspected the site and collected soil and other materials from the place of incident.
47. Following important facts can be discerned from the evidence of witness: –
i. PW-5 totally denied the fact that the accused persons were damaging some hut when the incident started. This version is totally contrary to the story set out in the FIR.
ii. The witness (PW-5) emphatically denied the presence of anyone else at the crime scene while the incident was happening. This admission creates a doubt on the presence of Puniya (PW12) at the crime scene thereby damaging the case of prosecution.
iii. The witness (PW-5) admitted political rivalry between the accused persons and the complainant party.
iv. The witness (PW-5) claimed that Ramesh had randomly come to his house for smoking Bidi.
v. The witness (PW-5) did not allege that the incident took place in the field of Gopya.
vi. The witness (PW-5) claims that he was standing at a distance of two steps while Ramesh was being indiscriminately assaulted by no less than ten assailants armed with sharp and blunt weapons. In spite thereof, PW-5 escaped unscathed without receiving even a single injury which creates a grave doubt on his very presence at the crime scene at the time of the incident.
PW-5 did not state that the accused came to his house
50. It may be noted here that the name of the father of the witness (PW-5) is also Narsingh. However, the witness (PW-5) did not state that the accused persons came to his house and started acting aggressively.
53. Therefore, the entire case of the prosecution which is based on the testimony of Madho Singh (PW- 5) and Puniya (PW-12) becomes doubtful. Both these witnesses have given highly contradictory versions regarding the manner in which the incident started (genesis of the occurrence) and the place where Ramesh was assaulted. Each denies the presence of the other at the crime scene in their depositions.
58. In this regard, reference may be made to the decision of this Court in Pankaj v. State of Rajasthan, wherein it was emphasised that when the genesis and manner of the incident itself are doubtful, conviction cannot be sustained. The Court held as under: –
“25. It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt.” (Emphasis Supplied)
59. Similarly, in Bhagwan Sahai and Another v. State of Rajasthan, this Court reiterated that once the prosecution is found to have suppressed the origin and genesis of the occurrence, the only proper course is to grant the accused the benefit of doubt. The Court observed as follows: –
“8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-by in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the factual situation in the present case.” [Emphasis Supplied]
Prosecution failed to establish the genesis of occurrence and SOC
60. In the present case, the prosecution has failed to establish the genesis of the occurrence and the place of incident with any degree of certainty. The FIR speaks of the demolition of a hut by the accused persons near the residence of Jagya (PW-3). However, Madho Singh (PW-5) shifted the crime scene to nearby his own house and denied any demolition. Puniya (PW-12) claimed that the assault occurred in the field of Gopya. Both of these witnesses (PW-5 and PW-12) have contradicted each other as well as the documentary evidence, viz. the site inspection plan (Exh. P-6). They do not acknowledge each other’s presence at the crime scene. Such conflicting versions cannot co-exist within a credible narrative. The suppression of the genesis of occurrence and the shifting of the place of incident demolish the very substratum of the prosecution case.
Accused acquitted
62. Since the entire case of the prosecution has fallen, all four convicted accused persons are entitled to be extended the benefit of doubt. Hence, we are inclined to extend the benefit of this judgment, in exercise of our powers under Article 142 of the Constitution of India, 1950 to the three co-accused, namely, Govardhan, Raja Ram, and Bhima, who have not challenged their conviction before this Court.
63. As a result of the above discussion, we feel persuaded to hold that the conviction of the appellant and the three co-accused, namely, Govardhan, Raja Ram and Bhima as recorded by the trial Court and affirmed by the High Court does not stand to scrutiny. Resultantly, the impugned judgments are set aside.
64. Accordingly, the appellant and the said co-accused are acquitted of the charges. They shall be released from custody forthwith, if not wanted in any other case.
Judgments referred
- Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)
- Pankaj v. State of Rajasthan ((2016) 16 SCC 192)
- Bhagwan Sahai and Another v. State of Rajasthan (AIR 2016 SC 2714)
Acts and Sections
IPC
Section 302 – Murder
Section 34 – Common intention
Section 307 – Attempt to murder
Section 147 – Rioting
Section 148 – Rioting, armed with deadly weapon
Section 149 – Unlawful assembly with common object
CrPC
Section 374(2) – Appeal from conviction by Sessions Judge
Section 313 – Examination of accused
Indian Evidence Act
Section 27 – Discovery of facts from accused in custody
Arms Act
Section 25 – Punishment for illegal possession of arms
Section 27 – Use of arms in contravention of Section 5
Party
Kannaiya versus State of Madhya Pradesh - Criminal Appeal No(s). 116 of 2012 - 2025 INSC 1246 - October 17, 2025 – Hon’ble Mr. Justice Sanjay Karol and Hon’ble Mr. Justice Sandeep Mehta J.
