UMA SHANKAR GAUTAMversusSTATE OF MADHYA PRADESH

                    [2014] 12 S.C.R. 397

                 UMA SHANKAR GAUTAM                               A
                              v.
             STATE OF MADHYA PRADESH
            {Criminal Appeal No.1451 of 2009)
                   DECEMBER 9, 2014.
                                                                  B
     [V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]

     Penal Code, 1860 - s.147 and 3021149 - Prosecution
under - Of six accused - Conviction by trial court - High
Court confirmed conviction of 3 accused, acquitted 2 accused      C
and case against one accused stood abated - Appeal by
accused No. 1 - Plea of acquittal on parity with the acquitted
accused - Held: It is always open to the court. to distinguish
the case of acquitted accused with the convicted ones ~ High
Court rightly declined to acquit accused No. 1 on the principle   D
of parity.

    Dismissing the appeal, the Court
     HELD: 1. The High Court has given benefit of doubt
by acquitting accused Nos. 5 and 6 on the ground that             E
no injury of lathi was found on the person of the
deceased and the names of accused Nos. 5 and 6 were
not mentioned in FIR and they could have been falsely
implicated later on account of enmity. The High Court had
elaborately considered the role and overt act of appellant/       F
accused No. 1 and held that his presence stood
established not only by the ocular testimony but also in
the first intimation, his name is specifically mentioned and
concluded that he was sharing common intention with
accused Nos. 3 and 4, who were armed with barchhi arid            G
farsa respectively and confirmed their conviction and
sentence. [Para 11] [403-8-E]

    2. The appellant-accused No. 1 cannot be acquitted
                             397                                  H
    398       SUPREME COURT REPORTS                    [2014] 12 S.C.R.


A   on parity with accused Nos. 5 and 6. It is always open to
    the Court to differentiate the accused who had been
    acquitted from those who had been convicted. The High
    Court rightly declined to acquit the appellant on the
    principle of parity. [Paras 12 and 13] [403-F-G; 404-C]
B
        Gangadhar Behera Vs. State of Orissa (2002) 8 SCC
    381: 2002 (3) Suppl. SCR 183 - relied on.
                              Case Law Reference:

c         2002 (3) Suppl. SCR 183          relied on         Para 12
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1451 of 2009 .
                     .'
          From the Judgment & Order dated 12.08.2008 of the High
o Court of Madhya Pradesh in Criminal Appeal No. 1537 of 1998.
        Mahavir Singh, Aakriti Dawar (AC.) Kuldip Singh for the
    Appellant.

       Samir Ali Khan, Aditya Narayan Singh, Mishra Saurabh for
E the Respondent.
                 •        ~            I    '

          The Judgment of the Court was delivered by

      C. NAGAPPAN, J. 1. This appeal is preferred against the
F judgment and order dated 12.8.2008 passed by the High Court
  of Madhya Pradesh at Jabalpur in Criminal Appeal No.1537
                                 1
  of1998.               ·          ·

       2. The appellant herein is accused no.1 and he along with
  five other accused were tried in Sessions case no.193/1995
G ori the file of Sessions Judge, District Shahdol and the trial
  court convicted them for the commission of offences under
  Section 147 and Section 302 read with Section 149 IPC and
  sentenced each of them to undergo rigorous imprisonment for
  one year for the first offence arid each of them to undergo
H imprisonment for life for second offence. Aggrieved by the
   UMA SHANKAR GAUTAM v. STATE OF MADHYA                       399
          PRADESH [C. NAGAPPAN, J.]
 same ·au the accused preferred Criminal Appeal no.1537 of             A
 1998 to the High Court of judicature at Jabalpur. During the
 pendency of appeal appellant no.2/accused no.2 Ramashankar
 died and the appeal preferred by him stood abated. The High
 Court confirmed the conviction and sentence of accused no.1
 Umashankar, accused no.3 Shivashankar and accused no.4                B
 Gaurishankar and at the same time acquitted accused no.5
 Vasudev and accused no.6 Gyandev by allowing the Criminal
 Appeal in part. Challenging his conviction and sentence,
 accused no.1 Umashankar has preferred the present appeal.

       3. Briefly the case of the prosecution is narrated as follows   C
  : PW7 Savitri Bai is the mother of Kalua @ Ramnath and PW9
· Usha Bai is his wife. On 19.7.i995 at about 8-8.30 a.m. the
  appellant herein/accused no.1 along with five other accused
  had gone to the house of Nan @ Lakhan situated at village
  Dindori Tola Bamhani and were hurling abuses in the courtyard.       D
  Nan was not in the house at that time and upon hearing the
  noise Kalua @ Ramnath went to Nan's house. Accused no.3
  Shivashankar armed with barchhi, accused no.4 Gaurishankar
  armed with farsa and accused nos.1,2,5 and 6 armed with lathis
  attacked Kalua with the said weapons and inflicted injuries on       E
  him. PW7 Savitri Bai tried to save his son Kalua and she was
  also beaten up. PW9 Usha Bai and PW2 Shiv Kumari, mother
  of Nan, also witnessed the occurrence. After sometime
  accused no.1 Umashankar and accused no.4 Gaurishankar
  again came to the occurrence place on motorcycle and                 F
  accused no.1 Umashankar kicked Kalua and they went away.
  PW9 Usha Bai went to PW12 Sarpanch Bhaiya Lal and
  narrated the occurrence. He along with PW4 chowkidar Bisahu
  Yadav came to the occurrence place and Exh.P-6 intimation
  report was sent through PW4 Bisahu Yadav to Police Station           G
  Anuppur. On receipt of information PW14 sub-Inspector
  Raghvendra Baghel went to the occurrence place and received
  Exh.D1 complaint given by PW9 Usha Bai and took up the
  investigation. He conducted inquest on the body of Kalua and
  sent it for post mortem examination. He prepared Exh.P-7 map         H
         400          SUPREME COURTREPORTS               [2014] 12 S.C.R.

     A and seized blood stained earth and plain earth from the
       occurrence place and examined PW2 Shiv Kumari, PW? Savitri
       Bai, PW9 Usha Bai, PW12 Bhaiya Lal and some other
       witnesses and recorded their statements.

           4. PW13 Dr.. P.C. Joshi conducted autopsy on the body
     B of Kalua at 11.45 a.m. on 19.7.1995 and found following injuries


               (i)     There was a compound fracture at the 1/3rd part
..                     of left forearm, which was attached to the skin only.
     c
               (ii)    There was compound fracture on the joint of right .
                       wrist which was attached with skin only.

               (iii)   Stab injuries on right forearm 4cm x 3cm which
                       were· bone deep.
     D
               (iv)    On the right partial part of the head incised wound
                       4cm x 2cm on the outer side of ear.

               \v)      One stab wound on the right side of chest.

     E         (vi)    6 wounds on the left thigh wherein one wound wa.s
                       4cm x 3 cm, second 6cm x 4cm, 3rd ?cm x 3cm,
                       4th 5cm x 3cm, 6th 6cm x 2cm and last 4cm x 3cm
                       and all these wounds were muscle deep.

     F         (vii) 3 stab wounds on the front side ·of right leg which
                     were muscle deep.

               (viii) Stab wound on the right shoulder 4.5cm x .3cm x
                      muscle deep.

     G         (ix)     One stab wound on left infrascapular region 6.5cm
                        x 4cm x muscle deep .
                                              . '

               (x)      One stab wound on lumber region 3cm x 2cm x
                        muscle deep.
     H
  UMA SHANKAR GAUTAM v. STATE OF MADHYA                    401
         PRADESH [C. NAGAPPAN, J.]
     He expressed opinion that homicidal death has occurred        A
due to hemorrhage from external and internal injuries and
issued Exh.P-31 post-mortem report.

     5. PW14 sub-Inspector seized the blood stained clothes
of the deceased and sent them for chemical examination. On         8
22.7.1995 PW14 sub-Inspector arrested all the accused and·
inquired them and on the information furnished by accused no.3
Shiyashankar, barchhi came to be recovered and on the
information furnished by accused no.4 Gaurishankar, farsa
came to be recovered and on the information furnished
independently by the other accused, lathis were recovered by       C
him. He sent the recovered weapons to chemical analysis and
after obtaining the Forensic Laboratory report he filed the
charge sheet against the accused.

     6. The prosecution examined PWs 1 to 14 and marked            D
the documents. The accused were questioned under Section
313 Cr.P.C. and their answers were recorded. DWs 1 to 5 were
examined on the side of defence. The trial court found all the
accused guilty of the charges and sentenced them as stated
above. On appeal by the accused, the High Court confirmed          E
the conviction and sentence of accused nos.1,3 and 4 and
acquitted accused nos.5 and 6. Challenging his conviction and
sentence accused no.1 Umashankar has preferred the present
appeal.

      7. Mr. Mahabir Singh, learned senior counsel appearing
                                                                   F
for the appellant, contended that the eye witnesses have not
stated that the appellant/accused no.1 caused injury on the
hands of deceased Kalua with lathi and the High Court had
given the benefit of doubt to accused nos.5 and 6 as no injury
of lathi has been found on the person of deceased and on the       G
ground of parity the appellant also deserves to be acquitted.
We also heard the similar submission made by Amicus Curiae
Ms. Aakriti Dawar on behalf of appellant. Mr. Samir Ali Khan,
learned counsel appearing for the respondent State, contended
that the presence of the appellant and his overt act against the   H
      402 .    SUPREME COURT REPORTS               (2014] 12 S.C.R.


A      deceased stood established by ocular testimony and also
     · intimation report in Exh.P-6 and the High Court in the impugned
       judgment has elaborately considered the same and has
       confirmed his conviction and the same is sustainable.

 B        8: We carefully considered the rival submissions and
      perused the record.

           9. Kalua@ Ramnath suffered 10 injuries in the occurrence
    as evident from Exh.P-31 post mortem report and injuries no.1
    and 2 mentioned therein are compound fracture on the left
  C forearm and on the right wrist respectively and the other 8
    injuries are stab and incised wounds. PW13 Dr. P.C. Joshi,
    who conducted autopsy, had opined that homicidal death has
    occurred due to hemorrhage from external and internal injuries
    in the post-mortem report. Exh.P-33 Query Memo was sent to
  D him on 21.9.1995 with respect to the compound fracture injuries
    on the hands and report he has opined that the compound
    fracture could have been caused by hard and blunt object
    besides a sharp edged weapon. In his testimony before court
    as PW13 he has reiterated the said opinion.
  E
           1O." The eye witnesses to the occurrence are PW2 Shiv
    Kumari, mother of Nan, .PW7 Savitri Bai, mother of the
    deceased and PW9 Usha Bai, wife of the deceased. All of them .
    have testified thaf accused no.3 armed with barchhi, accused
    no.4 arrried with farsa and accused nos.1,2,5 and 6 armed with
  F lathis attacked Kalua with the said weapons and inflicted
    injuries on him. Weapons barchhi and farsa are sharp edged
    whereas lathi is hard and blunt. PW7 Savitri Bai has testified
    in her testimony in para 15 has stated that lathi injuries were
    caused on the leg and waist. PW9 Usha Bai has testified that
  G appellant/accused~no.1 Umashankar inflicted injury with lathi.
    In the cross examination she has stated in para 16 that the lathi
     injuries were inflicted on the legs and waist of the deceased.
    Referring to the above testimony the High Court has observed
    that the said witness has not stated that lathi injuries were
. H caused on the hands of the deceased. As per the post mortem
  UMA SHANKAR GAUTAM v. STATE OF MADHYA                      403
         PRADESH [C. NAGAPPAN, J.]
report both the hands of the deceased were attached with the         A
skin only, rest of the portion found cut and obviously the said
injuries were caused by the sharp edged weapons. The fact
remains that compound fractures were found ~ the left forearm
and right wrist which as per medical opinion attributable to
attack made by hard and blunt object.                                B

     11. The High Court has given benefit of doubt by acquitting
accused nos.5 and 6 on the ground that no injury of lathi was
found on the person of the. deceased and the names of.
accused nos.5 and 6 were not mentioned in Exh.P-6 first
intimation report and they could have been falsely implicated C
later on account of enmity. On the contrary as already seen,
there were compound fractures indicative of attack with lathis.
Be it may. The High Court had elaborately considered the role
and overt act of appellant/accused no.1 Umashankar and held
that his presence stood established not only by the ocular D
testimony but also in the first intimation in Exh.P-6 report his
name is specifically mentioned and concluded that he was
sharing common intention with accused nos.3 and 4, who were ·
armed with .barchhi and farsa respectively and confirmed their
conviction and sentence.                                         E

     12. We do not find any substance in the submission of the
learned senior counsel appearing for the appellant that since
accused nos.5 and 6 have been acquitted; on the ground parity
the appellant herein also deserves to be acquitted. It is always F
open to the Court to differentiate the accused who had been
acquitted from those who had been convicted. The power of
the courts to distinguish the cases of one or more of the
accused from the other(s) is far too well recognized to need
reiteration. Still, we may notice the principle as stated in G
Gangadhar Behera Vs. State of Orissa (2002) 8 SCC 381,
wherein this Court observed as follows :

    " ........ Even if a major portion of the evidence is found to
    be deficient, in case residue is sufficient to prove guilt of
    an accused, notwithstanding acquitt<)I of a number of other      H
    404        SUPREME COURT REPORTS                [2014) 12 S.C.R.


A                                       '
          co-accused persons, his conviction     can be maintained. It
          is the duty of the court to separate the grain from the chaff.
          Where chaff can be separated from the grain, it would be
          open to the court to convict an accused notwithstanding
          the fact that evidence has been found to be deficient to
B         prove guilt of other accused persons."

         13. In our view, the High Court applied the said principle
    in distinguishing the role of appellant herein from that of
  . accused no.5 and accused no.6, who have been acquitted. In
    other words, the High Court rightly declined to acquit the
C appellant herein on the principle of parity. The impugned
    judgment does not call for any interference under Article 136
    of the Constitution of India.   t

           14. In the result the appeal is dismissed. The bail bond
D     shall be cancelled and the appellant is directed to surrender
      before the Sessions Judge, District Shahdol to serve out !tie .
      remaining sentence, failing which the learned Sessions Judge
    . is requested to take him into custody and send him to jail to
      serve his left over sentence.
E
     Kalpana K. TripaQiy                               Appeal dismissed.