TULSIRAM & ORS.versusSTATE OF M.P.

                          [2008) 8 S.C.R. 453

~>
                         TULSIRAM & ORS.                            A
                                  v.
                            STATE OF M.P. ·
                  (Criminal Appeal No.869 Of 2008)

                            MAY 13, 2008
                                                                     B
               [C.K. THAKKER AND D.K. JAIN, JJ.]

            Penal Code, 1860 - ss.325 and 323 rlw s.34 -Alleged
     assault on PWs 5 and 6 with lethal weapons - Causing inju-
     ries to both - Conviction of Appellants by Courts below- Chai-  c
     lenge to - Held: From the evidence, it appears that the pros-
     ecution has not come with clean hands and the genesis 'be-
     comes doubtful - PW5 himself was declared 'hostile' by the
     prosecution - Also, contradiction between medical evidence
     and evidence of PW5 with regard to number of injuries sus-
                                                                      D
)    fained by him - Further, while according to PW5, the injuries
     were caused by farsi, luhangi and sticks, tt1e medical opinion
     showed that injuries were possible by 'hard' and 'blunt'_ sub-
     stance and not by any 'sharp' weapon - No incise wound was
     found on the person of PW5- PW6's evidence also was.shaky
     - He was not sure as to with which weapon, he was beaten - E
      Moreover, according to him, he lodged a report at the police
     station on which his signature was taken, but that report is not
     forthcoming- P~'/9 who had intervened in the scuffle, was also
     declared 'hostile' - His evidence a/so did not go to show that
-.   the incident had happened in the manner deposed by the pros- F
     ecution - Considering the facts and circumstancHs in their
     totality, it cannot be said 'beyond reasonable doubt' that Uw
     accused-appellants had committed the offences with which
      they were charged - Conviction accordingly set aside.
                                                                     G
         PWs 5 and 6 were running passenger-jeep between
     two destinations. According to the prosecution, the ac-
     cused persons demanded Rs.50/- per day per trip frori1
     PWs 5 and 6 and when they did not oblige, assaulted them
                                  453                                H
    454       SUPREME COURT REPORTS             (2008] 8 S.C.R.


A with lethal weapons like sticks, farsa and /uhangi. Both
                                                                  \   .
  PWs 5 and 6 were injured in the occurrence. Trial Court
  convicted the accused-Appellants under ss. 325 and 323
  r/w s.34 IPC. High Court confirmed the conviction.
       The conviction of Appellants was challenged before
8 this Court on various grounds, viz. that the genesis of
  the prosecution was doubtful; that apart from the omis-
  sions and material contradictions in the testimony of wit-
  nesses, even the medical evidence did not support the
  case of the prosecution; that while according to PW4 (the
C doctor), PW5 received only 3 injuires, PW5 himself stated
  that he had received 28 injuries; that PW5 had stated be-
  fore the Police that there were other persons over and
  above accused and even those persons had assaulted
  him, but thereafter, totally turned round and stated on oath
D before the Court that other persons were not there and
  further that the evidence of injured PW6 wa:. of no use to
  the prosecution as after receiving injury, he had left the
  place and was not there.
          Allowing the appeal, the Court
E
         HELD: 1. From the evidence, it appears that the pros-
    ecution has not come with clean hands and the genesis
    becomes doubtful. [Para 18] [462-A,B] ,
        2. The prosecution-witnesses and in particular the
F star witness injured, PW5 himself was declared 'hostile'
  by the prosecution as it was clear that though initially his
  case was that over and above four persons who were
  beforn the Court, three other persons were very much
  present, but subsequently, he stated that they were not
G present. Not only that three other persons were present
  at the scene of offence, but they were armed with weap-
  ons, their common object was to beat the witness and in
  fact they attacked the witness with /athis. The initial case,
  however, was subsequently totally changed and the wit-
H ness had gone to the extent that over and above four ac-
                  TULSIRAM & ORS. v. STATE OF· ' ·            455
                                M.P.

    cused before the Court, nobody was present and he was A
    not attacked and beaten by anyone else. According'to the
    said witness, he had sustained several ipjuries (28 inju-
    ries) but according to the medical evidence, there wer.e
    only three injuries on the person of PW 5. Further, accord-
    ing to the witness, the injuries were caused.by tarsi, luhangi B
    and sticks. Medical opinion, on the other han'di .go~s to
    show that injuries were possible by 'hard' and 7brunt' sub'-
    stance and not by any 'sharp' weapon. All th.e .three inju-
    ries referred to hereinabove also Ciearly 'prove it: They
    were all lacerated wounds and no incise wound was found c
    on the person of PW5. [Paras 18, 19] [462"8-F]. , .
                                                   '• ..

          3. PW6's evidence also was shakyl HE;! was not sure
    as to with which weapon, he was beaten." Moreover, ~c 7
    ~ording to him, he lodged a report at the police· station· ori
    ;which his signature was taken, butthat report is nd~ itlrtn~ D
    ·somi,ng. {Para 20] [462-F,G]               · · · ;- ..· · .'. ·
         4. PW9 who. had intervened in the scuffle, was .also
    declared 'hostile'. His evidence also dir:I no.t gC? ~o ,_show
    that the incident had happened in the manner ;deposed            E
    by the prosecution. [Para 21] [462-G,H, 463-A]
           5. Considering facts and circumstances in their to-
    tality, evidence of prosecution witnesses; particularlyrcof
    the witnesses who were 'attacked', and had been declar.ed
    'hostile' (partly or fully) coupled with the medical evitlence; F
    so far as injuries sustained by PW5 is concerned and with-
    holding of report said to have been lodged by PW6, this
    is not a case to reach a finding that the accused had com"
    mitted the offences with which they were charged. If it is
    so, obviously the benefit of doubt should be given to them. G
    It cannot be said 'beyond reasonable doubt' that the .ac-
•   cused had committed the offences with which they \'.lfer-e
    charged. The order of conviction and sentence recorded
    by the trial Court and confirmed by the High Courtis set
    aside. [Paras 22, 23] [463-A-D]
                                                                    H
    456       SUPREME COURT REPORTS                (2008] 8 S.C.R.

                                                                     I •
A        CRIMINALAPPELLATE JURISDCTION : Criminal Appeal
    No. 869 of 2008

         From the Judgment & Order dated 11.12.2006 of the High
    Court of Judicature of Madhya Pradesh, Jabalpur, Bench at
    Gwalior in Criminal Appeal No. 210 of 2000.
B
         Sushi! Kumar Jain, Puneet Jain, Ashwini, Archana Tiwari
    and Pratibha Jain for the Appellants.

          C.D. Singh and Sunny Chowdhary for the Respondent.

c         The Judgment of the Court was delivered by

          C.K. THAKKER, J. 1. Leave granted.

       2. The present appeal is directed against the judgment
  and order passed by the Court of Additional District & Ses-
  sions Judge, Chanchoda, District Guna on February 22, 2000
D
  in Sessions Case No. 587 of 1997 and confirmed by the High
  Court of Madhya Pradesh, Jabalpur (Gwalior Bench) on De-
  cember 11, 2006 in Criminal Appeal No. 210 of 2000.
         3. The short facts of the case are that First Information
E Report (FIR) was lodged by one Ram Singh (PW?), son of Ram
   Prashad Meena resident of Kulakheda on October 1, 1997. Ac-
   cording to the prosecution, on October 1, 1997, one Ramesh
   Singh was going from Anjali to Kumbhraj on motor-cycle of one
   Govind Singh along with Raghuveer Singh and Hukum Singh.
F  When   they reached near Khatakiya Tiraha, all accused persons
   who were hiding themselves in the shadow of a Mini Bus and
   armed with lethal weapons, like lathi, farsa and /uhangi ap-
  ·peared, stopped the motor-cycle driven by Ramesh Singh and
   started beating him by inflicting blows. Accused-2 Bhagwan
G Singh caused farsa blow on the left hand of Ramesh, Accused-
   1 Tulsiram caused /uhangi blow on parietal region of Ramesh
   Singh, Accused-4 Daku and Accused-3 Roop Singh gave lathi          •
   blows on legs and knees of Ramesh Singh. Raghuveer Singh
   Meena came to the rescue of Ramesh Singh, but Accused-1
   Tulsiram inflicted luhangi blow over his right hand. Raghuveer
H
                       TULSIRAM & ORS. v. STATE OF                   457
                          M.P. [C.K. THAKKER, J. ]
>- I
        Singh Meena, hence, immediately ran away from the place of           A
        occurrence. Several injuries were caused by accused persons
        to Ramesh Singh. Ramesh Singh fell down and became un-
        conscious. All the accused then took Ramesh Singh and threw
        him in the pit. Hari Singh, Chandan Singh and Ram Singh mean-
        while came at the place of occurrence and saw the accused            B
        running away from the place. Ramesh Singh was then taken
  ..    out of the pit, was placed in a Matador and was taken to the
        Police Station Kumbhraj. Injured Raghuveer Singh Meena also
        reached the Police Station.
              4. According to prosecution, Ramesh Singh and injured          c
        Raghuveer Singh were plying passenger-jeep between
        Kumbhraj to Khatakiya and Khatakiya to Kumbhraj. The ac-
        cused persons demanded Rs.50/- per day, per trip. The in-
        jured, however, did not oblige the accused which was the route
        cause and with a view to teach a lesson to Ramesh Singh and          D
•       Raghuveer Singh, the accused persons assaulted them.
              5. A case was registered against the accused for offences
        punishable under Sections 307, 325, 323, 147, 148, 149 and
        34 of the Indian Penal Code (IPC). After usual investigation,
        cha/Ian was filed in the Court of Judicial Magistrate, First Class   E
        who passed an order of committal in view of the case being
        triable by a Court of Session. The accused did not plead guilty
        and claimed to be tried.

 ....         6. The prosecution, to prove its case against the accused,     F
        examined fourteen witnesses. The learned Additional Sessions
        Judge held that the prosecution was able to establish the case
        beyond reasonable doubt against the accused and after hear-
        ing them, passed an order of conviction and sentence. The High
        Court confirmed the order passed by the trial court.
                                                                             G
              7. Against the order of conviction and sentence, the ap-
  4
        pellants have approached this Court. Prayer for exemption from
        surrendering was rejected by this Court. The appellants there-
        after surrendered and notice was issued. Records and proceed-
        ings were called for. Since neither exemption from surrender-        H
      458       SUPREME COURT REPORTS                  [2008] 8 S.C.R


/>.   ing was granted nor the accused were enlarged on bail, the
                                                                          \   .
      matter was ordc~red to be posted for final hearing.

            8. We have heard the learned counsel for the parties.

            9. The learned counsel for the appellants contended that
B     both the courts committed an error in convicting the appellants.
      It was submitted that the genesis of the prosecution was doubt-
      ful as the prosecution has not come with clean hands. It has
      suppressed material facts from the Court. Apart from omis-
                                                                          •
      sions and material contradictions in the testimony of witnesses,
c     even medical evidence does not support the case of the pros-
      ecution. It was submitted that according to PW4 Dr. A. 0.
      Chinchurkar, Ramesh Singh had received only three injuries.
      Ramesh Singh, however, stated in his evidence that he had re-
      ceived 28 injuries. Ramesh Singh himself has stated before
      the Police that there were other persons over and above ac-
0
      cused and even those persons had assaulted him. Thereafter,
      however, he totally turned round and stated on oath before a
      Court of law that other persons were not there. The evidence of
      injured Raghuveer Singh is of no use to the prosecution as after
      receiving injury, he had left the place and was not there. The
E     third person (Hukum Singh) virtually did not support the pros-
      ecution. According to the counsel, the accused persons were
      falsely implicated and involved because of 'business rivalry'.
      Ramesh Singh and Raghuveer Singh were running taxi Without
      any licence. When the accused persons objected to such ille-
F     gal activity, they were roped in a criminal case. It was, there-
      fore, submitted that the appellants are entitled to acquittal.
            10. It was further submitted that the courts below had com-
  mitted an error of law in not considering the provisions of Sec-
G tions 360 and 361 of the Code of Criminal Procedure, 1973
  (hereinafter referred to as 'the Code') which enjoin the Court to
  release offenders on probation of good conduct if the offence           •
  is not punishable with death or with imprisonment for life. In the
  instant case, though the charges were framed for offences pun-
  ishable under Sections 307, 325 and 323 read with Sections
H
                     TULSIRAM & ORS. v. STATE OF.                  459
                        M.P. [C.K. THAKKER, J ]
~·'
      147, 148, 149 and 34, IPC, the trial Court acquitted all the ac- A
      cused for an offence punishable under Section 307, IPC. The
      said acquittal is not challenged and it has attained finality. The
      conviction was recorded for offences punishable under Sec-
      tions 325 and 323 read with Section 34, IPC and not for an
      offence punishable with imprisonmentfor life. It was, therefore, B
      obligatory on the Court to consider grant of probation. Non-con-
      sideration thereof has vitiated the order of sentence. Finally, it
      was submitted that after the incident, the accused had remained
      in jail for quite some time and even after the order passed by
      the High Court in December, 2006, neither exemption from sur- c
      rendering was granted nor they were enlarged on bail and they
      are in jail since then. Therefore, even if this Court finds that the
      order of conviction and sentence is in consonance with law, on
      the facts and in the circumstances of the case, the period which
      the appellants have already undergone in jail may be treated as
                                                                           0
      sufficient.
            11. The learned counsel for the State, on the other hand,
      supported the order passed by the trial Court and confirmed by
      the High Court. It was submitted that on the basis of evidence
      adduced by the prosecution and appreciating the depositions E
      on oath of prosecution witnesses, both the courts below have
      recorded a finding that the accused had committed the offences
      in question and convicted them. This Court does not re-appre-
      ciate the evidence under Article 136 of the Constitution and as
      such, the appeal deserves to be dismissed. As to non-compli- F
      ance with Sections 360 and 361 of the Code', it was submitted
      by the counsel that looking to the facts of the case and the man-
      ner in which the offences have been committed, no benefit of
      the said provisions could be extended to the accused. It was,
      therefore, submitted that the appeal deserves to be dismissed. G
            12. The learned counsel for the appellants invited our at-
      tention to the deposition of PW4-Dr. A. D. Chinchurkar. He stated
      that on October 1, 1997 at 5.30 p.m., Ramesh Singh, son of
      Madansingh Meena was brought by constable Rambharose for
      his medical examination. Ramesh Singh was unconscious. H
    460       SUPREME COURT REPORTS                   [2008] 8 S.C.R.

                                                                         I •
A   Whole body with clothes had been soiled with wet soil. Breathe
    and heartbeat was continuing. He found following three injuries
    from the person of Ramesh Singh:

               1.   Lacerated wound on scalp of head 6x1 cm x 1
                    cm scalp thickness deep in middle of scalp on
B                   left side.

               2.   One lacerated wound in 1x1 x0.5 cm area on
                    backside of head.

               3.   One lacerated broken wound 2x1 x1 .5 cm on
c                   left hand with apparent fracture of bone.
       13. According to this witness, all the three injuries appeared
  to have been caused with 'hard and blunt' weapons. In cross-
  examination, the witness stated that Ramesh Singh had sus-
D tained 'only three injuries'. He further (2dmitted that the injuries
  could not possibly be sustained with any sharp weapon.
        14. Now, reading the evidence of victim Ramesh Singh,
  injured and the star witness of the prosecution, it is clear that
  according to him, he was 'attacked' by Accused No.1-Tulsiram,
E Accused No.2-Bhagwan Singh, Accused No.3-Roop Singh and
  Accused No.4-Daku. Bhagwan Singh had administered tarsi
  blow on his left hand. Tulsiram had given luhagi blow on fore-
  head and Daku and Roop Singh gave lathi blows. He stated
  that in his police statement, besides names of four accused, he
F had not mentioned any other name. In view of the above state-
  ment, the prosecution requested the Court to declare the wit-
  ness 'hostile' anet permission was sought to put questions which
  could be put in cross-examination. Such permission was
  granted. It was then brought on record that in the police state-
G ment, the witness had stated that over and above the accused
  persons, one Harsingh Meena, Ramcharan Meena and
  Harbhajan Meena were also present with lathis and they had             •
  also inflicted /athi blows on the witness and had thrown him in
  the ditch. The witness though admitted in the cross-examina-
H tion that he could not say exact number of injuries he had sus-
                    TULSIRAM & ORS. v. STATE OF                     461
                       M.P. [C.K. THAKKER, J. ]
.'   tained but there were more than 28 injuries on his whole body.        A
     Out of those injuries, 5-6 injuries were of grievous nature and
     remaining injuries were simple.
           15. From the deposition of other injured witness Raghuvir
     Singh also, it appears that the prosecution has not come for-
     ward with all facts. In his evidence on oath, Raghuvir Singh stated   8

;
     that Tulsiram had given wood blow to him and then stated that
     Tulsiram had given /uhagi blow to Ramesh and lathi blow to the
     witness. The witness then ran away from there out of fear. Ac-
     cording to the witness, after running away from the place of oc-
     currence, he went to nursery situated near Khatkiya and then          C
     reached Kumbhraj where he lodged report at Police Station,
     Kumbhraj. The witness asserted that the police had written his
     report and obtained his signature on the report. No such report,
     however, has been produced by the prosecution at the trial.
                                                                           D
           16. PW9-Hari Singh, in his statement admitted that he had
     seen the quarrel while returning from Fadalpur to Kumbhraj.
     According to him, the accused persons present in the Court
     had beaten Ramesh Singh. The witness intervened in the fight
     and requested the accused persons not to beat Ramesh Singh.
     He, however, stated that except the witness, nobody intervened        E
     in the fight. Later on, Ram Singh came there and the witness
     and Ram Singh pulled Ramesh out of the ditch. He further stated
     that besides the three accused, nobody had beaten Ramesh.

            17. The Addi. Public Prosecutor, in respect of this witness    F
     (Hari Singh) also, made prayer to the Court to declare him 'hos-
     tile' and to permit to put questions which could be put in cross-
     examination and the permission was granted. The witness was
     then confronted with his police statement wherein he stated that
     Tulsiram Meena, Bhagwan Singh Meena, Roop Singh Meena                 G
     and Daku Meena were beating Ramesh Singh with lathi, luhagi
     and farsiwith intention to kill him. Though the witness denied it
     and went to the extent that the police did not record his state-
     ment, the contradiction had been duly established. He went to
     the extent that police had written wrong statement. He denied         H
    462       SUPREME COURT REPORTS                   [2008] 8 S.C.R.

                                                                         I •
A   that accused Roop Singh Meena had beaten Ramesh Singh in
    his presence and that it was wrong that in collusion with ac-
    cused Roop Singh, he was not giving correct evidence.
         18. From the above evidence and discussion, it appears
  that the prosecution has not come with clean hands and the
8 genesis becomes doubtful. The prosecution-witnesses and in
  particular the star witness injured, PW5-Ramesh Singh himself
                                                                         l
  was declared 'hostile' by the prosecution as it was clear that
  though initially his case was that over and above four persons
  who were before the Court, three other persons were very much
C present, but subsequently he stated that they were not present.
  Not only that three other persons were present at the scene of
  offence, but they were armed with weapons, their common ob-
  ject was to beat the witness and in fact they attacked the wit-
  ness with /athis. The initial case, however, was subsequently
D totally changed and the witness had gone to the extent that over
  3nd above four accused before the Court nobody was present
  and he was not attacked and beaten by anyone else.
           19. According to the said witness, he had sustained sev-
    eral injuries (28 injuries) but according to the medical evidence,
E   there were only three injuries on the person of Ramesh Singh.
    Further, according to the witness, the injuries were caused by
    tarsi, luhangi and sticks. Medical opinion, on the other hand,
    goes to show that injuries were possible by 'hard' and 'blunt'
    substance and not by any 'sharp' weapon. All the three injuries
F   referred to hereinabove also clearly prove it. They were all lac-
    erated wounds and no incise wound was found on the person
    of Ramesh Singh.
        20. PW6-Raghuveer Singh's evidence also was shaky. He
G was not sure as to with which weapon, he was beaten. More-
  over, according to him, he lodged a report at the police station
  on which his signature was taken, but that report is not forth-
  coming.
       21. PW9-Hari Singh, who had intervened in the scuffle,
H was also declared 'hostil8' His evidence also did not go to show
                    TULSIRAM & ORS. v. STATE OF                     463
                       MP. [C.K. THAKKER, J. ]

     that the incident had happened in the manner deposed by the            A
     prosecution.
              22. Considering facts and circumstances in their totality,
     evidence of prosecution witnesses, particularly of the witnesses
     who were 'attacked', and had been declared 'hostile' (partly or
     fully) coupled with the medical evidence, so far as injuries sus-      8
     tained by PW5~Ramesh Singh is concerned and withholding of
     report said to have been lodged by PW6-Raghuveer Singh, in
     our opinion, this is not a case to reach a finding that the ac-
     cused had committed the offences with which they were charged.
     If it is so, obviously the benefit of doubt should be given to them.   C
     We accordingly hold that it cannot be said 'beyond reasonable
     doubt' that the accused had committed the offences with which
     they were charged.
        · · ·23: For the foregoing reasons, in our opinion, the appeal
                                                                            0
     deserves to be allowed and is accordingly allowed. The order
     of conviction and sentence recorded by the trial Court and con-
     firmed by the High Court is set aside.
          24. In view of acquittal recorded by us, the question of con-
     sideration of provisions of Sections 360 and 361 of the Code           E
     and grant of benefit to the accused does not arise and we ex-
     press no opinion thereon.

          25. The appeal is accordingly allowed. The conviction and
     sentence of the appellants is set aside.
                                                                            F
     B.B.B.                                            Appeal allowed .




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