BHAGWAN JAGANNATH MARKAD & ORS.versusSTATE OF MAHARASHTRA

452                           [2016] 5 S.C.R. 452



A              BHAGWAN JAGANNATH MARKAD & ORS.
                                        v.
                        STATE OF MAHARASHTRA
                      (Crimina1Appea1No.1516of2011)
B                            OCTOBER 04, 2016
       [V. GOPALA GOWD.A AND ADARSH KUMAR GOEL, JJ.]
                                ·..·.
            Penal Code, 1860:
          ss.147, 149, 302 rlw ss.149, 324 and 326 - Political enmity -
c  Murder of one and injuries to six persons - Acquittal of all accused
   by trial court on the ground that material witnesses were related or
   otherwise interested; that there was improvement in the version
   initially given to police and version put forward before the court;
   and inconsistency in the evidence of the witnesses in the manner of
   assault and the weapon used - High court reversed the order of
D
   acquittal in case of appellants - On appeal. held: Trial court had
   adopted perverse approach in mechanically rejecting the entire
   evidence comprising of injured eye witnesses by finding one or the
  ·other contradiction - The occurrence took place in broad day light
   - One of the accused mentioned about the enmity on account of the
E panchayat election - The said accused himself was injured which
   proved his presence at the scene of the occurrence - All the five
   eye witnesses consistently named appellants (A-1 toA-7)- Appellants
   (A-1 to A-7) were assigned specific role in assaulting the deceased
   - Therefore, their conviction and sentence ulss.3021149 is not
   interfered with - However, in case of A-JO and A-ll. benefit of
F
   doubt is granted and they are acquitted since they were not named
   by PW-11 and PW-18 and also PW-JO attributed specific role to A-
   l to A-7 only.
            s.149 - Vicarious liability of member of an unlawful assembly
      - Held: An offence committed in prosecution of common object of
G     an unlawful assembly by one person renders members of unlawful
      assembly sharing the common object vicariously liable for the
      offence - When a crowd of assailants are members of an unlawful
      assembly, it may not be possible for witnesses to accurately describe
      the part played by each one of the assailants - The common object
H     has to be ascertained from the acts and language of the members of
                                        452
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                               453
                MAHARASHTRA

the assembly and all the surrounding circumstances .                        A
      Evidence: Discrepancies and contradictions in evidence of
witnesses - Held: Discrepancies may arise due to error of
observations, loss of memory due to lapse of time, mental disposition
such as shock at the time of occurrence -Normal discrepancy does
not affect the credibility of a witness - Only when discrepancies are        B
so incompatible as to affect the credibility of the version of a witness,
the Court may reject the evidence - The discrepancies of trivial
nature could not be the basis of rejecting the evidence of eye
witnesses nor non-examination of some of the witnesses be a ground
to reject the prosecution case when injured eye witnesses were
examined.
                                                                             c
     Appeal: Appellate authority - Scope of interference -
Discussed.
      Partly allowing the appeal, the Court
      HELD: 1. It is accepted principle of criminal jurisprudence            D
that the burden of proof is always on the prosecution and the
accused is presumed to be innocent unless proved guilty. The
prosecution has to prove its case beyond reasonable doubt and
the accused is entitled to the benefit of the reasonable doubt.
The reasonable doubt is one which occurs to a prudent and                    E
reasonable man. Section 3 of the Evidence Act refers to two
conditions - (i) when a person feels absolutely certain of a fact ..:.
"believe it to exist" and (ii) when he is not absolutely certain and
thinks it so extremely probable that a prudent man would, under
the circumstances, act on the assumption of its existence. The
doubt which the law contemplates is not of a confused mind but               F
of prudent man who is assumed to possess the capacity to
"separate the chaff from the grain". The degree of proof need
not reach certainty but must carry a high degree of probability.
[Para 18) [465-C-E)
      2. While appreciating the evidence of a witness, the court             G
has to assess whether. read as a whole, it is truthful. In doing so,
the court has to keep in mind the deficiencies, drawbacks and
infirmities to find out whether such discrepancies shake the
truthfulness. Some discrepancies not touching the core of the
case are not enough to reject the evidence as a whole. No true
                                                                             H
454            SUPREME COURT REPORTS                      [2016] 5 S.C.R.



A     witness can escape from giving some discrepant details. Only
      when discrepancies are so incompatible as to affect the credibility
      of the version of a witness, the court may reject the evidence.
      Section 155 of the Evidence Act enables the doubt to impeach
      the credibility of the witness by proof of former inconsistent
      statement. Section 145 of the Evidence Act lays down the
B
      procedure for contradicting a witness by drawing his attention to
      the part of the previous statement which is to be used for
      contradiction. The former statement should have the effect of
      discrediting the present statement but merely because the latter
      statement is at variance to. the former to some extent, it is not
c     enough to be treated as a contradiction. It is not every discrepancy
      which affects creditworthiness and trustworthiness of a witness.
      A witness being a close relative is not enough to reject his
      testimony if it is otherwise credible. A relation may not conceal
      the actual culprit. The evidence may be closely scrutinized to
      assess whether an innocent person is falsely implicated.
D
      Mechanical rejection of evidence even of a 'partisan' or
      'interested' witness may lead to failure of justice. It is well known
      that principle "falsus in uno, falsus in omnibus" has no general
      acceptability. On the same evidence, some accused persons may
      be acquitted while others may be convicted, depending upon the
E     nature of the offence. The court can differentiate the accused
      who is acquitted from those who are convicted. A witness may be
      untruthful in some aspects but the other ·part of the evidence
      may be worthy of acceptance. [Para 19] [465-F-H; 466-A-D]
            3. An offence committed in prosecution of common object
F     of an unlawful assembly by one person renders members of
      unlawful assembly sharing the common object vicariously liable
      for the offence. The common object has to be ascertained from
      the acts and language of the members of the assembly and all the
      surrounding circumstances. It is to be assessed keeping in view
      the nature of the assembly, arms carried by the members and the
G     behavior of the members at or near the scene of incident. Sharing
      of common object is a mental attitude which is to be gathered
      from the act of a person and result thereof. [Para 21] [466-G;
      467-A]
            4. The trial court has adopted perverse approach in
H
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                             455
                MAHARASHTRA

rejecting the entire evidence comprising of injured eye witnesses         A
when one person has been killed and six others have been injured.
Except for some contradictions, the version of eye witnesses PWs
10, 11, 15, 12 and 18 is consistent. There is rio reason to reject
their evidence. Of course, the court has to be cautious in
appreciating evidence and rule out exaggeration. The version of
                                                                           B
AS is not probable and mere fact that injury on him is not
explained is not enough to reject the prosecution version. In
such a case, the Court is to examine whether evidence is
trustworthy, Non-explanation of injuries on accused is an
important circumstance which requires the court to satisfy itself
that true version is not suppressed and whether defence version            c
is probable. This by itself is not enough to reject the prosecution
case. -~ince rejection of eye witness account is uncalled for, other
reasons given by trial court are not sufficient to reject the
prosecution case. Even if recoveries or Chemical Analyzer's
report are disregardedly the same have only corroborative value,
                                                                           D
prosecution case is established by credible eye witness account.
Mere fact that some of the witnesses have not been examined is
also of no consequence when credible evidence to prove the case
has been produced. Thus, the High Court rightly reversed the
trial Court judgment. [Paras 22, 23, 25) [467-H; 468-A, C-E; 469-
D-E]                                                                       E
       5. If the appellate court is to reverse th~ judgment of the
trial court, the reasoning of the trial court has to be adverted to
and reversal of acquittal is permissible only if the view of the trial
court is not only erroneous but also unreasonable and perverse.
At the same time, the appellate court has full power to review             F
the evidence and to reach at its own conclusion. The appellate
court can set aside the acquittal if the acquittal is not justified. Of
course, the appellate court has to consider the fact that the trial
court has the benefit of seeing the witnesses in the witness box
and the presumption of innocence is not weakened by the
acquittal. If two reasonable conclusions can be reached, the               G
appellate court should not disturb the finding of the trial court.
In the present case, the High Court has followed the above
principles. [Para 28] [470-F-H; 471-A)
      6. When a crowd of unlawful assembly commits an offence,
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456            SUPREME COURT REPORTS                      [2016) 5 S.C.R.



A     it is often not possible to accurately describe the part played by
      each of the assailants. Though the appreciation of evidence in
      such cases may be a difficult task, the court has to perform its
      duty of sifting the evidence carefully. In the instant case, all the
      five eye witnesses have named Al to A7. Other accused have
      not been named by PWll and PW18. Benefit of doubt is granted
B
      to AlO and All for the reason that they have not been named by
      PWll and PW18 and also for the reason that PWlO has attributed
      specific role only to Al to A7. But as far as Al to A7 are concerned
      (A2 has already died) all the five witnesses have consiste.ntly
      named them. Al to A7 have been assigned specific role in
c     assaulting the deceased. Their conviction and. sentence under
      Section 302/149 of the IPC has to be upheld. [Paras 31, 32] [472-
      A·D]
             Masalti _v. State qf U.P. (1964) 8 SCR 133 - relied on.
             Padam Singh v. State of U.P. 1999 (5) Suppl. SCR 59 :
D            (2000) 1 SCC 621; Devatha Venkataswamy v. Public
             Prosecutor, High Court of A.P. (2003) 10 SCC 700;
             Narendra Singh v. State of MP. 2004 (3) SCR 1148 :
             (2004) 10 SCC 699; Prasanna Das v. State q( Orissa
             (2004) 13 SCC 30; Majjal v. State of Haryana (2013)
             6 SCC 798; Lalita Kumari v. Govt. qf U.P. 2013 (14)
E
             SCR 713 : (2014) 2 SCC l; Baby alias Sebastian v.
             Central Inspector of Police (2016) 7 Scale 444;
             Damodar v. State qf Rqjasthan 2003 (3) Suppl. SCR
             904 : (2004) 12 SCC 336; Mano Dutt & Am: v. State
             of Uttar Pradesh 2012 (3) SCR 686 : (2012) 4 SCC
 F           79; Sm1jeev v. State qf Haryana 2015 (2) SCR 210 :
             (2015) 4 SCC 387; A. Shankar v. State qf Karnataka
             2011 (6) SCR 999 : (2011) 6 SSC 279; State of
             Karnataka v. Suvarnamma & Am: 2014 (10) SCR 778
             : (2015) 1 SCC 323; Bava Hqjee Hamsa v. State qf
             Kera/a (1974) 4 SCC 479; Patai Alias Krishna Kumar
G
             v. State U.P. 2010 (3) SCR1135 : (2010) 4 SCC 429;
             Ravishwar ManJ.hi v. State of Jharkhand 2008 (17) SCR
             420 : (2008) 16 SCC 561; T.T. Antony v. State c!( Kera/a
             2001 (3) SCR 942 : (2001) 6 SCC 181; Vijayee Singh
             v. State of U.P. 1990 (2) SCR 573 : (1990) 3 SCC 190;
H            Leela Ram v. State of Haryana 1999 (3) Suppl. SCR
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                          457
                MAHARASHTRA

      435 : (1999) 9 SCC 525; GanJ?adhar Behera vs. State              A
      of Orissa 2002 (3) Suppl. SCR 183 : (2002) 8 SCC
     "381; Takhaji Hiraji v. Thakore Kubersing Chamansing
      (2001) 6 SCC 145; Mano Dutt v. State qf U.P. 2012 (3)
      SCR 686 : (2012) 4 SCC 79; Anand Mohan v. State of
      Bihar 2012 (10) SCR 1: (2012) 7 SCC 225·_ referred
                                                                       B
      to.
                      Case Law Reference
1999 (5) Suppl. SCR 59           referred to         Para 14
(2003) 10 sec 700           referred to      Para 14
2004 (3) SCR 1148           referred to      Para 14                   c
(2004) 13 sec 30            referred to      Para 14
(2013) 6 sec 798            referred to      Para 14
2013 (14) SCR 713           referred to    · Para 14
(2016) 7 Scale 444          referred to      Para 14
2003 (3 ) Suppl. SCR 904    referred to      Para 15                   D
2012 (3) SCR 686           'referred to      Para 15
2015 (2) SCR 210            referred to      Para 15
2011 (6) SCR 999            referred to      Para 15
2014 (10) SCR 778           referred to      Para 15
                                                                        E
(1974) 4 sec 479            referred to      Para 15
2010 (3) SCR1135            referred to      Para 15
2008 (17) SCR 420           referred to      Para 15
20Ql. (3) SCR 942           referred to      Para 15
19~Q (2) SCR 573            referred to      Para 18                    F
1999 (3) Suppl. SCR 435     referred to      Para 19
2002 (3) Suppl. SCR 183     referred to      Para 19
(2901) 6 sec 145            referred to      Para23
20lZ (3) SCR 686            referred to      Para 23
                                                                        G
2012 (10) SCR 1             referred to      Para26
(1?64) 8 SCR 133            relied on        Para 31
       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1516of2011.
      From the Judgment and Order dated 20.04.2007 of the High Court   H
458            SUPREME COURT REPORTS                          [2016] 5 S.C.R.


A     of Judicature of Bombay in Criminal Appeal No. 533 ofl 990.
            H. N. Nagamohan Das, Sushil Kumar Jain, Sr. Advs., Shirish K.
      Deshpande, Mohit Gautam, D. M. Nargolkar, Shivaji M. Jadhav,
      Anshuman Animesh, Ms. Saksfii Kaushik, Abhinav Gupta, Nishaiit
      Ramakantrao Katneshwarkar,-Sushil Karanjkar, Dharmendra Kishor, K.
B     N. Rai, Advs.for the appearing parties.
            The Judgments of the Court was delivered by
             ADARSH KUMAR GOEL, J. 1. The appellants are aggrieved
      by the judgment and order dated 20'h April, 2007 passed by the High
      Court of Judicature at Bombay in Criminal Appeal No.533 of 1990
c     whereby they have been convicted under Sections 147, 149, 302 read
      with Sections 149, 324and 326 of the Indian Penal Code and sentenced
      to undergo imprisonment for life, apart from other lesser sentences which
      are to run concurrently and payment of fine, setting aside their acquittal
      by the trial court.
D     2.    Originally there were 16 accused namely:-
            !)     Bhagwan Jagannath Markad,
            2)     Janardhan Rambhau Tate,
            3)     Dada Sayyednoor Mulani,
            4)     Sayyed Sayyadnoor Mulani,
 E
            5)     Sandi pan Sakhara Koyale,
            6)     Nivrutti Sakharam Koyale,
            7)     Krishna Sakharam Koyale,
            8)     Shailendra Sandi pan Koyale,
            9)     Chandrakant Shankar Markad,
 F
            I 0)   Babu Rama Berad,
            I I)   Balu Naradeo Berad,
            12)    Manik Rama Berad,
            13)    Pandurang Babu Arade,
 G          14)    Sadashiv Shahu Arade,
            15)    Kisan Rama Berad, and
            16)    Appa Shabu Arade.
            3. The trial court acquitted all the accused. The High Court upheld
      acquittal of accused Nos. 8, 9, 12, 13, 14, 15 and 16.
 H           4. Accused No.2 is reported to have died. Thus, eight appellants
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                                459
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

are before this Court. They are Al Bhagwan Jagannath Markad; A3              A
Dada Sayyednoor Mulani; A4 Sayyed Sayyadnoor Mulani; AS Sandipan
Sakhara Koyale; A6 Nivrutti Sakharam Koyale; A7 Krishna Sakharam
Koyale; AlO Babu Rama Berad and All Batu Naradeo Berad
respectively.
      5. According to the prosecution, one Bibhishan Vithoba Khadle           B
has been murdered and six persons have been injured being Indubai,
PWI I Dagadu Gopinath Koyale, PW18 Chaturbhuj Khade, PWIS
Bibhishan Kshirsagar, Gopinath Mahadev Koyale and PW12 Kernath
Koyale in the attack by the accused.
        6. As per the prosecution version recorded in the FIR lodged by       c
 PW 10 Satyabhama, her husband PW 11 Dagadu Gopinath Koyale, father-
 in-law Gopinath Koyale, deceased Bibhishan Vithoba Khadle, PW18
 Chaturbhuj Khade, PW 15 Bibhis)lan Kshirsagar along with others were
 present in their house on the date of the occurrence on J3 1h November,
 1988 at 12.00 noon when all the accused came there to attack her husband.
 Accused No.3 Dada Sayyednoor Mulani put the house on fire on account         D
 of which everyone came out. Accused Nos. I and 2 Bhagwan Jagannath
 Markad and Janardhan Rambhau Tate attacked Dagadu with swords
 on hands, legs and knees. Accused No.3 Dada Sayyednoor had barchi.
 Accused No.4 Sayyed Sayyadnoor Mulani had knife. Accused No.5
 Sandipan Sakharam Koyale had iron rods. Accused No.6 Nivrutti                E
 Sakharam Koyale had barchi. Accused No. 7 Krishna Sakharam Koyale
 had axe. Accused No. I 0 and 11 Babu Rama Berad and Batu Naradeo
 Berad had axe. Accused No.8 Shailendra Sandipan Koyale had sticks.
·PW 11 Dagadu fell down on account of beating and became unconscious.
 Accused No.3 Dada Sayyednoor, accused No.4 S~yyed Sayyadnoo.r
 Mulani, accused No.5 Sandipan Sakharam Koyale, accused No.6 Nivrutti         F
 Sakharam Koyale, accused No.7 Krishna Sakharam Koyale caused
 beating to the deceased Bibhishan Vithoba Khade. Accused Nos. I and
 2 Bhagwan Jagannath Markad and Janardhan Rambhau Tate also
 attacJ<ed deceased Bibhishan Vithoba Khadle. The accused then beat
 PW 11 Dagadu Gopinath Koyale and PWI 8 Chaturbhuj Khade with sticks          G
 and swords. The occurrence was a result of the enmity on account of
 party faction in Panchayat and Co-operative Society elections.
       7. In the statement before the court, apart from repeating above
version, PW 10 Satyabhama further stated that a bullock cart was arranged
to carry injured Dagadu and the deceased Bibhishan Vithoba Khade              H
460            SUPREME COURT REPORTS "                       [2016] 5 S.C.R.



A     upto the main road and thereafter they were carried in a jeep. On the
      way, the FIR was lodged at 5.30 p.m. and thereafter the injured and the
      deceased were taken to the PHC and then to the civil hospital. PWI 1
      Dagadu remained in the hospital for three to four months and thereafter
      in private hospital for two to three months.
B            8. After registering the FIR, investigation was carried out and
      charge-sheet was submitted before the Court. The accused qenied the
      charge. Accused No.5 Sandipan Sakharam, however, stated that he
      was called by Dagadu through deceased Bibhishan Vithoba Khade to
      his place where PW!8 Chaturbhuj Khade and PW12 Kemath Koyale
      were also present. PWl 1 Dagadu told him that he should not contest
c     the election. The said accused, however, replied that PWI 1 Dagadu
      had been Sarpanch for I 0-12 years and thus, accused should be allowed
      to become Sarpanch. This led to inter se assault between PW 11 Dagadu
      and deceased Bibhishan Vithoba Khade and the said accused was also
      assaulted by PW 11 Dagadu.
D            9. The prosecution led evidence comprising of medical evidence,
      recovery of material objects, eye-witnesses and the investigation. We
      will make reference only to the relevan.t evidence on record. PW4 Dr.
      Shravan Gavhane conducted the post mortem on the body of the
      deceased and found seven injuries. Injury No. I was on the head which
 E    was found to be fatal. Injuries Nos. 2 to 7 were said to be with hard and
      blunt object like sticks or swords. PW5 Dr. Dinesh Kumar examined
      the injured PW! I Dagadu and found 10 injuries which included eight
      incised wounds, two injuries on Gopinath Mahadev Koyale, one contused
      wound on PWI 8 Chaturbhuj Khade, three injuries on Murlidhar Yeshu
      Kshirsagar. He also found one incised wound on the right forearm of
 F    accused No.5 Sandipan Sakharam. He found two injuries on Bibhishan
      PWl5.
            I 0. The prosecution relied upon the eye witness account rendered
      by PWIO Satyabhama, PW!! Dagadu, PW15 Bibhishan Kshirsagar,
      PW18 Chaturbhuj Khade, PWl2 Kernath Koyale. PW2 Shivaji Fuge,
 G    PW3 Yuvraj Koyale, PW7 Bhimrao and PW9 Bhimrao Dhavale are
      witnesses to the recovery in pursuance of the statements under Section
      27 of the Evidence Act. The Chemical Analyser's report was also
      produced about the blood group on some of the recovered articles.
            11. The trial Court rejected the prosecution version inter alia for
 H    following reasons :
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                               461
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

      (i)     Recovery was not admissible as the location of the articles   A
              recovered was already known;
      (ii)    There was inordinate delay in sending the case property to
              the Chemical Analyser and possibility of tempering was not
              ruled out;
      (iii)   There was inconsistency in the evidence of PW s Kernath        B
              Koyale, Bibhishan Vithoba Khadle and Chaturbhuj Khade
              in the manner of assault and the weapon used;
      (iv)    The prosecution did not examine Indubai and Gopinath;
      (v)     Motive was not established as there was no immediate           c
              election of the Panchayat or of the Cooperative Society;
      (vi)    There was improvement in the version initially given to the
              police and the version put forward before the Court; and
      (vii)   All the material witnesses arr. either related or otherwise
              interested and their testimony could not be accepted in        D
              absence of corroboration in material particulars.
       12. The High Court observed that acquittal by the trial court was
based on omissions and contradictions which were not material and did
not affect the veracity of the prosecution case. Thus, the trial Court
adopted a "totally perverse approach". It was observed :                     E ,
      '"32, It is true that there are contradictions and omissions but
      none of them. according to us, is vital or material. They are
      regarding the particulars. When 718 persons are injured and
      assailants are about 16, then these omissions are bound to be
      there. They are natural omissions and contradictions and the           f
      most important fact that wipes out the effect of these
      contradictions and omissions is that many persons from the
      side of complainant had received injuries, so also accused
      No.5.
      33. This is not a case of exercising the right of self defence of      G
      the accused. No such plea was raised before us nor from the
      case of the prosecution any such plea can be permitted to be
      raised directly or indirectly by the accused. The accused are
      aggressors. They have launched attack while persons from
      the complainant's side had assembled to celebrate their Diwali.
       Vasti was set to fire. Bibhishan Khade died in the said attack        H
462         SUPREME COURT REPORTS                        [2016] 5 S.C.R.



A         and many persons from the side of complainant had received
          injuries. The assault was by deadly weapons like sword, barchi,
          knife, gupti and sticks. This was, therefore, not a case of clear
          cut acquittal of all the 16 accused. No farther corroboration
          is necessary. investigation is prompt and swift and even if
          other evidence regarding recovery of incriminating articles
B
          is not considered, the oral evidence and ocular evidence of
          the aforesaid witnesses i.e. P. W. JO, 11, 12, 13, 15 and 18 and
          others discussed by us including those two doctors folly prove
          the prosecution case. The findings of the trial Court are totally
          perverse and therefore this appeal is required to be allowed,
c         but to what extent and against which of the accused is the
          question. The close scrutiny of the evidence of eye witnesses
          particularly P. W.10, 11, 15 and 18 shows that P. W. JO has
          implicated accused Nos.1,2,3,5,6,7, JO and 11. P.W.11 has
          implicated accused Nos.1,2,3,4,5,6,7 and according to P.W.11,
          accused No.3 set fire to the Vasti. P. W.15 has implicated
D
          accused Nos.1,2,3,4,5,6, JO and 11. P.W. 18 has implicated
          accused Nos.J,2,3,5,6, 7 and according to him, accused No.3
          set fire to the Vasti. Presence of accused No.5 Sandipan at
          the spot is fully proved, apart from other evidence, because
          of the injuries suffered by him. There are in all 16 accused.
E         Considering the aforesaid evidence, this appeal against
          ac;quittal has to be allowed in respect of accused
          Nos.J,2,3,4,5,6,7, JO and 11, and their acquittal is required
          to be set aside. So far as accused Nos.8,9,12,13,14,15 and
          16 are concerned, their acquittal is required to be upheld.
           Undoubtedly, the accused Nos.1 to 7 and 10 and 11 had
 F
      "'P formed an unlawful assembly with a common object qf
          launching an assault. The house or vasti of Dagadu was set
          to fire. In the attack Bibhishan Khade died and P. W.11, 15
          and 18 and others received injuries by deadly weapons.
           Therefore, for causing death of Bibhishan Khade the accused
G         are required to be held guilty under Section 302 read with
          Section 149 of the Indian Penal Code and for causing severe
          injuries to the aforesaid prosecution witnesses and others,
          they are required to be held guilty under Sections 324 and
          326 rlw 149 of the Indian Penal Code. So far as offence
           under Section 436 of the Indian Penal Code is concerned,
H
     BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                               463
        MAHARASHTRA [ADARSH KUMAR GOEL, J.]

          the evidence of the prosecution witnesses is not consistent           A
          and, therefore, nobody can be convicted under that section. "
       13. We have heard learned counsel for the appellants on the one
hand as also learned counsel for the State and the complainant on the
other and with their assistance, gone through the material on record.
         14. Main contention raised on behalf of the appellants is that the     B
 judgment of acquittal rendered by the trial Court was certainly a possible
 view on appreciation of evidence and the High Court could not reverse
 the same as there was no perversity. The High Court has not fully
 discussed the evidence nor dealt with the reasons recorded by the trial
 Court for rejecting the prosecution version. There was no explanation          c
 for the injury suffered by accused No.5. There are omissions and
 contradictions in the version of the prosecution witnesses. In the first
 version given by PW 12, the accused have not been named and instead
 ofrecording the said version as FIR, it was on belated statement of PW
  I 0 which was an improved version that the FIR was registered. The
-omissions in the statement made to the police amount to contradictions         D
 as per explanation to Section 162 Cr.P.C. Thus, the evidence of eye
 witnesses PWs I 0, 11, 12, 15 and 18 has been rightly rejected by the trial
 court and could not be relied upon by the High Court. Since there was
 enmity between the parties, there was possibility of exaggeration and
 false implication and it was not safe to convict the appellants. It was        E
 also submitted that since the incident was 28 years old, some of the
 appellants have become very old and ought not to be convicted-at this
 stage. Reliance has been placed on the judgments of this Court in Padam
 Singh versus State of U.P.1, Deval/ta Venkatasw"my versus Public
 Prosecutor, High Court of A.P. 1, Narendm Singh versus State of
 M.P. 3, Prasanna Das versus State of Orissa', Majja/ versus State of           F
 Haryana 5, Lalita Kumari versus Govt. of U.P. 6, and Baby alias
 Sebastian versus Central Inspector of Police 7•
      15. On the other hand, learned counsel for the State and the
 complainant, supported the judgment of the High Court and pointed out
                                                                                G
 1
   (2000) 1 sec 62 t
 2
   (2003) 1osec 100
 3 (2004) IOSCC 699 •

 4(2004) 13 sec 30
 '(2013) 6 sec 798
 '(2014)2sec1
 7
   (2016) 7 Scale 444                                                           H


      •
464            SUPREME COURT REPORTS                         [2016] 5 S.C.R.



A   that the reasons for acquittal by the trial court were perverse and the
    High Court has duly dealt with the said reasons and found them to be
    perverse. There is consistent evidence of injured eye witnesses which
    could not be altogether brushed aside. Contradictions and omissions
    which are not vital or material are bound to be there in every case. The
B same did not affect the credibility of the main version that the accused
  . caused the death of the deceased and injuries to six persons on the
    complainant side. The accused formed unlawful assembly and action of
    even one accused in prosecution of common object of the unlawful
    assembly or which was known to likely to be so committed was action
    ofall the accused in law. It was not necessary to prove individual role of
c different accused. The information by PW 12 on telephone was cryptic
    and could not be treated as FIR. Therein though name of accused No.5
    was mentioned and it was further stated that he was accompanied by
    others also, other details were not mentioned. This was not at par with
    the statement to be recorded by the officer in charge of the Police Station
    under Section 154 CrPC which can be treated as FIR. Thus, the
D
    telephonic message could not be treated as FIR. The statement of PW
     I 0 made in the Police Station has rightly been treated as FIR. The said
    statement was prompt and could not be treated as an improved version.
    The statement was corroborated by sworn testimony of the author of
    the FIR before the Court which has been corroborated in all material
E particulars by fourother injured witnesses. Thus, the evidence on record
    fully warranted conviction of the appellants and no interference was
    called for by this Court. Reliance has been placed on the judgments of
    this Court in Damodar versus State of Rajastlran 8 , Mano Dutt &
      Anr. Versus State of Uttar Pradesh 9, Sanjeev versus State of
      Haryana 10, A. Slrnnkar versus State of Karnataka 11 , State of
F
      Karnataka versus Suvarnamma & Anr. 11, Bava Hajee Hamsa
      versus State of Kerala 13, Patai Alias Krishna Kumar versus State
      U.P. 14, Ravis/1war Manjlti versus State of Jharkhand15, T.T. Antony
      versus State of Kerala 16•
      • (2004) 12 sec 336
G     • <2012) 4 sec 79
      '" <2015) 4 sec 387
      II (2011) 6 SSC 279
      12 (2015) 1sec323

      "(1974) 4 sec 479
      "(20 IO) 4 sec 429
      "(2008) 16 sec 561
H     16
         (2001)6SCC 181
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                                 465
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

       16. We have given due consideration to the rival submissions.           A
The question for consideration is whether the High Court was justified
in reversing the acquittal of the appellants on the basis of evidence
available on record.
        17. Before considering this aspect with reference to the evidence
on record, we may advert to the settled principles of law dealing with         B
the issues arising in the present case. The approach to be adopted by
the court generally in appreciating the evidence in a criminal case as
also the approach of the appellate court is discussed in several decisions
of this Court, some of which have been cited by learned counsel for the
parties.
                                                                               c
       18. It is accepted principle of criminal jurisprudence that the burden
of proof is always on the prosecution and the accused is presumed to be
innocent unless proved guilty. The prosecution has to prove its case
beyond reasonable doubt and the accused is entitled to the benefit of the
reasonable doubt. The reasonable doubt is one which occurs to a prudent
and reasonable man. Section 3 of the Evidence Act refers to two D
conditions -(i) when a person feels absolutely certain of a fact- "believe
it to exist" and (ii) when he is not absolutely certain and thinks it so
extremely probable that a prudent man would, under the circumstances,
act on the assumption of its existence. The doubt which the law
contemplates is not of a confused mind but efprudent man who is E
assumed to possess the capacity to "separate the chaff from the grain".
The degree of proof need not reach certainty but must carry a high ·
degree ofprobability 17 •
       19. While.appreciating the evidence of a witness, the court has to
assess whether read as a whole, it is truthful. In doing so, the court has     F
to keep in mind the deficiencies, drawbacks and infirmittes to find out
whether such discrepancies shake the truthfulness. Some discrepancies
not touching the core of the case are not enough to reject the evidence
as a whole. No true witness can escape from giving some discrepant
details. Only when discrepancies are so incompatible as to affect'the
credibility of the version of a witness, the court may reject the evidence.    G
Section 155 of the Evidence Act enables the doubt to impeach the
credibility of the witness by proof of former inconsistent statement.
Section 145 of the Evidence Act lays down the procedure for contradicting
a witness by drawing his attention to the part of the previous statement
"Vijayee Singh vs. State ofU.P.- (1990) 3 SCC 190, Parasl8, 28-30              H
466             SUPREME COURT REPORTS                              [2016] 5 S.C.R.


A  which is to be used for contradiction. The former statement should
   have the effect of discrediting the present statement but merely because
   the latter statement is at variance to the former to some extent, it is not
   enough to be treated as a contradiction. It is not every discrepancy which
   affects creditworthiness and trustworthiness of a witness. There may
   at times be exaggeration or embellishment not affecting credibility. The
8
   court has to sift the chaff from the grain and find out the truth. A
  'statement may be partly ·rejected or partly accepted 18 • Want of
   independent witnesses or unusual behavior of witnesses of a crime is
   not enough to reject evidence. A witness being a close relative is not
   enough to reject his testimony ifit is otherwise credible. A relation may
c not conceal the actual culprit. The evidence may be closely scrutinized
   to assess whether an innocent person is falsely implicated. Mechanical
   rejection of evidence even of a 'partisan' or 'interested' witness may
   lead to failure ofjustice. It is well known that principle "falsus in uno,
   falsus in omnibus" has no general acceptability 19 • On the same evidence,
   some accused persons may be acquitted while others may be convicted,
D
   depending upon the nature of the offence. The court can differentiate
   the accused who is acquitted from those who are convicted. A witness
   may be untruthful in some aspects but the other part of the evidence
   may be worthy of acceptance. Discrepancies may arise due to error of
   observations, loss of memory due to lapse of time, mental disposition
E such as shock at the time of occurrence and as such the normal
   discrepancy does not affect the credibility of a witness.
             20. Exaggerated to the rule of benefit of doubt can result in
      miscarriage ofjustice. Letting the guilty escape is not doingjustice. A
      Judge presides over the trial not only to ensure that no innocent is punished
F     but also to see that guilty does not escape. 20
             21. An offence committed in prosecution of common object of an
      unlawful assembly by one person renders members ofunlawful assembly
      sharing the common object vicariously liable forthe offence. The common
      object has to be ascertained from the acts and language of the members
G     of the assembly and all the surrounding circumstances. It can be gathered
      from the course of conduct of the members. It is to be assessed keeping
      in view the nature of the assembly, arms carried by the members and
      18
       Leela Ram vs. State of Haryana ( 1999) 9 SCC 525, paras 9 - 13
      "Gangadhar Behera vs. State ofOrissa (2002) 8 SCC 381-para15
H     ''' Gangadhar Behera (supra), para 17
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                                467
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

the behavior of the members at or near the scene ofincident. Sharing of      A
common object is a mental attitude which is to be gathered from the act
of a person and result thereof. No hard and fast rule can be laid down
as to when common object can be inferred. When a crowd of assailants
are members of an unlawful assembly, it may not be possible for witnesses
to accurately describe the part played by each one of the assailants. It
                                                                              B
may not be necessary that all members take part in the actual assault~ 1 •
In Gangadliar Beliera (supra), this Court observed :
        "25. The other plea that definite roles have not been ascribed
       to the accused and therefore Section 149 is not applicable, is
       untenable. A four-Judge Bench of this Court in Masalti case
       [AIR 1965 SC 202} observed as follows:
                                                                              c
       "15. Then it is urged that the evidence given by the witnesses
       conforms to the same uniform pattern and since no specific
       part is assigned to all the assailants, that evidence should
       not have been accepted. This criticism again is not well
       founded. Where a crowd of assailants who are members of                D
       an unlawful assembly proceeds to commit an offence of
       murder in pursuance of the common object of the unlawful
       assembly, it is often not possible for witnesses to describe
       accurately the part played by each one of the assailants.
       Besides, if a large crowd of persons armed with weapons                E
       assaults the intended victims, it may not be necessary that all
       of them have to take part in the actual assault. Jn the present
       case, for instance, several weapons were carried by different
       members of the unlawful assembly, but it appears that the
       guns were used and that was enough to kill 5 persons. Jn
       such a case, it would be unreasonable to contend that because          F
       the other weapons carried by the members of the unlawful
       assembly were not used, the story in regard to the said weapons
       itself should be rejected. Appreciation of evidence in such a
       complex case is no doubt a difficult task; but criminal courts
       have to do their best in dealing with such cases and it is their       G
       duty to sift the evidence carefully and decide which part of it
       is true and which is not. "
      22. We have referred to the above settled principles as the trial
court has adopted perverse approach in rejecting the entire evidence
21 Gangadhar Behera (supra), paras 22-24                                      H
468             SUPREME COURT REPORTS                              [2016] 5 S.C.R.



A     comprising of injured eye witnesses when one person has been killed
      and six others have been injured. The trial court ignored the above
      principles by mechanically rejecting the evidence ofall the witnesses by
      finding one or the other contradiction. The occurrence has taken place
      in broad day light. One of the accused himself mentioned about the
      enmity on account of the panchayat election. The said accused himself
B
      is injured which proves his presence at the scene of the occurrence.
      This version further shows the presence of deceased and the injured.
      But his version fails to explain as to why the deceased would have been
      killed by PW! I when the deceased was the messenger of PW! I himself.
      Except for some contradictions, the version of eye witnesses PW s I 0, .·
c     11, 15, 12 and 18 is consistent. There is no reason to reject the said
      version. Of course, the court has to be cautious in appreciating evidence
      and rule out exaggeration.
             23. We may also note that version of AS is not probable and mere
      fact that injury on him is not explained is not enough to reject the
D     prosecution version. In such a case, the Court is to examine whether
      evidence is trustworthy. This aspect has been repeatedly examined by
      this Court and settled law is that non explanation of injuries on accused
      is an important circumstance which requires the court to satisfy itself
      that true version is not suppressed and whether defence version is
      probable~ 2 · 23 · 2 ~. This by itself is not enough to reject the prosecution
E     case.
            24. To demonstrate that the approach of the trial court is outrightly
      perverse, some of the observations are put in :
              " But in general terms she has stated that accused came with
 F           weapons. Similarly it is admitted by her during the cross-
             examination that she has not stated assault by particular
             accused on the person of Bibhishan Khade. But she has stated
             in general terms that Bibhishan was assaulted by the accused.
             Moreover it is to be noted that she has admitted that Dagadu
             and Bibhishan were assaulted by said weapons like cutting a
G            wood by an axe, sword and barchi. But there is 110 piercing
             wound or cut injury on the person of deceased Bibhishan as
             well as Dagadu.
      22
        Vijayee Singh (supra), para 9
      23
        (200 I) 6 SCC 145-Takhaji Hiraji vs. Thakore Kubersing Chamansing
H     ,. (2012) 4sec   79-Mano Dutt VS. State of U.P.
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                                   469
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

      Moreover it is in her complaint that she had been to the vasti             A
      of Murlidhar and Bibhishan Kshirsagar to hand over the
      break fast to Dagadu. But the evidence of PWs and Dagadu
      and other eye witnesses disclose that they all had been to the
      house of Murlidhar Kshirsagar for Diwali snacks and there
      Dagadu invited for meals in the noon time. Hence, all the
                                                                                 B
      eye-witnesses mentioned above had been to the vasti of
      Dagadu. But P. W. Dagadu, Kernath, P. W. Bibhishan
      Kshirsagar and P. W. Chaturbhuj disclose that they were called
      for the Diwali snacks and not for meals in the house of
      Dagadu. It is to noted that if Dagadu was invited for Diwali
      snacks in the house of Murlidhar kshirsagar then there was                 c
      no necessity to take breakfast for Dagadu to the house of
      Murlidhar Kshirsagar. Considering all the aspects the
      evidence of the complaint cannot be accepted. "
       25. Similar is the appreciation by the trial court of other witnesses.
Since rejection of eye witness account is uncalled for, other reasons            D
given by trial court are not sufficient to reject the prosecution case.
Even if recoveries or Chemical Analyzer's report are disregardedly the
same have only corroborative value, prosecution case is established by
credible eye witness account. Mere fact that some of the witnesses
have not been examined is also of no consequence when credible evidence
to prove the case has been produced. We thus, find that the High C9urt           E
rightly reversed the trial Court judgment.
        26. One of the submission oflearned counsel for the appellants is
that telephonic message by PW 12 recorded at the police station should
have been treated as FIR. We have been taken through the said message
which is to the effect that AS and other accused assaulted the complainant       F
party. Learned counsel relied upon the observation in Lulita Kun1<1ri
(supra) to the effect that a GD Entry can also be treated as FIR in an
appropriate case. From the said observation, it cannot be laid down that
every GD Entry or every cryptic infonnation must be treated as FIR. In
Anand Mohan versus State of Bihai2 5 while referring to Section 154              G
Cr.P.C., this Court observed that every cryptic information, even if not
signed by the person giving the information, cannot be treated as FIR.
The infonnation should sufficiently disclose the nature of the offence
and the manner in which the offence was committed. It was observed :

" (2012i 7 sec 22s                                                               H
470            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A           "50. In Sk. Ishaque v. State ofBihar [( 1995) 3 SCC 392] Gulabi
            Paswan gave a cryptic information at the police station to
            the effect that there was a commotion at the village as firing
            and brickbatting was going on and this Court held that this
            cryptic information did not e~en disclose the commission of a
            cognizable offence nor did it disclose who were the assailants
B
            and such a cryptic statement of Gulabi Paswan cannot be
            treated to be an FIR within the meaning of Section I 54 CrPC:
            51. Similarly, in Binay Kumar Singh v. State of Bihar [(1997)
            I SCC 283) information was furnished to the police in Ext.
            1013 by Rabindra Bhagat that the sons of late Ram Niranjan
c           Sharma along with large number of persons in his village
            had set fire to the houses and piles of straws and had also
            resorted to firing. This Court held that Ext. 1013 is evidently a
            cryptic information and is hardly sufficient to discern the
            co111mission of any cognizable offence therefro111."
D            27. Similar view has been taken by this Com1 in Damodar (supra),
      T. T. Antony (supra), Patai Alias Krishna Kumar (supra) and
      Ravislnvar Manjhi (supra).
             28. Learned counsel forthe appellants also criticized the judgment
      of the High Court by submitting that the principles laid down by this
E     Court in Padam Singh (supra), Devatlw Venkataswamy (supra),
      Narendra Singh (supra), Prasanna Das (supra), Majja/ (supra),
      Lalita Kumari (supra), and Baby (supra) for exercise of appellate
      jurisdiction have not been followed. The appellate court should deal
      with reasons for acquittal and interfere only ifacquittal is perverse. There
 F    is no doubt about the proposition that the appellate court has to arrive at
      an independent conclusion about the credibility of the evidence and to
      re-appreciate the evidence to arrive at a just conclusion. If the appellate
      court is to reverse the judgment of the trial court, the reasoning of the
      trial court has to be adverted to and reversal of acquittal is permissible
      only if the view of the trial court is not only erroneous but also
 G    unreasonable and perverse. At the same time, the appellate court has
      full power to review the evidence and to reach at its own conclusion.
      The appellate court can set aside the acquittal if the acquittal is not
      justified. Of course, the appellate court has to consider the fact that the
      trial court has the benefit of seeing the witnesses in the witness box and
 H    the presumption of innocence is not weakened by the acquittal. lftwo
  BHAGWAN JAGANNATH MARKAD & ORS. v. STATE OF                                 471
     MAHARASHTRA [ADARSH KUMAR GOEL, J.]

reasonable conclusions can be reached, the appellate court should not          A
disturb the finding of the trial court. In the present case, the High Court
has followed the above principles.
       29. Jn Bava Hajee Hamsa (supra) while approving the reversal
of acquittal by the High Court, it was held that erroneous approach of
the trial Court led to misdirection in appraising the evidence and the         B
High Court was justified in rejecting the approach of the trial court and
in analyzing the evidence in its own way. This Court observed :
      "30. We agree with the High Court that the very "scheme of
      approach" adopted by the trial Judge was faulty and
      misleading. It led to aberration and misdirection in appraising          c
      evidence, and vitiated his conclusions. The learned trial Judge
      started correctly when on a broad look of the evidence, he
      found the evidence of PWs J, 8 and 9 prima facie acceptable.
      But after the second lap of discussion, he became sceptical;
      and reversed his mind at the end of the third round of
      circumgyratory discussion. In such cases where large number              D
      of persons are involved and in the commotion some persons
      cause injuries to others and the evidence is of a par/ is an
      character, it is often safer for the Judge of fact to be guided
      by the compass of probabilities along the rock-ribbed
      contours of the case converging on the heart of the matter.              E
      Once the court goes astray from the basic features of the
      case, it is apt to lose itself in the labyrinths of immaterial
      details, desultory discussion and vacillation arising from
      unfounded suspicions. This is exactly what has happened in
      the instant case. Despite the pains taken and the conscentious
      effort put in to write an elaborate judgment, the trial Judge            F
      had, as it were, missed the wood for the trees. The learned
      Judges of the High Court were, therefore, right in discarding
      altogether the basically wrong "scheme of approach" adopted
      by the trial court, and in analysing the evidence in their own
      way."                                                                    G
      30. As already observed, the discrepancies of trivial nature could
not be the basis of rejecting the evidence of injured eye witnesses nor
non-examination of some of the witnesses be a ground to reject the
prosecution case when injured eye witnesses were examined.
       31. We may also refer to the judgment of this Court in Musa/ti          H
472             SUPREME COURT REPORTS                              [2016] 5 S.C.R.


                            6
A     versus State of U.P.~ to the effect thatthe evidence of interested partisan
      witnesses though required to be carefully weighed, the same could not
      be discredited mechanically. When a crowd of unlawful assembly
      commits an offence, it is often not possible to accurately describe the
      part played by each of the assailants. Though the appreciation of evidence
      in such cases may be a difficult task, the court has to perform its duty of
B
      sifting the evidence carefully.
             32. Applying the above principles to the present case, it is clear
      that all the five eye witnesses have named A I to A 7. Other accused
      have not been named by PWI I and PWI 8. By way ofabundant caution,
      we give benefit of doubt to A I 0 and A 11 for the reason that they have
c     not been named by PW 11 and PW 18 and also for the reason that PW I 0
      has attributed specific role only to A I to A 7. But as far as A I to A 7 are
      concerned (A2 has already died) all the five witnesses have consistently
      named them. A I to A 7 have been assigned specific role in assaulting
      the deceased. Their conviction and sentence under Section 302/149 of
D     the !PC has to be upheld.
             33. For the above reasons, this appeal is partly allowed to the
      extent that appellant Nos.7 and 8 (Babu Rama Berad and Balu Naradeo
      Berad) are given benefit of doubt and are acquitted. They be released
      from custody, ifnot required in any other case. Appeal ofother appellants
E     is dismissed. However, appellant Nos.5 and 6 (Nivrutti Sakharam Koyale
      and Krishna Sakharam Koyale) will continue to remain on bail for one
      month and if they make an application for remission of the remaining
      sentence on the ground of advanced age within one month, they will
      continue to remain on bail thereafter ti II the decision of the said application
      by the appropriate authority. If their application for remission is not
F     accepted, they will surrender to serve out the remaining sentence.
      Devika Gujral                                            ·Appeal partly allowed.




      '(1964)8SCR 133