JODHANversusSTATE OF M.P.

                   (2015] 4 S.C.R. 789


                         JO OHAN                              A
                            v.
                     STATE OF M.P.
            Criminal Appeal No. 1683 of 2010
                                                              B
                     APRIL 08, 2015

        [DIPAK MISRA AND N.V. RAMANA, JJ.]

     Penal Code, 1860: ss. 302, 323, 324 rlw s. 149 -
Prosecution case that the accused persons attacked the        C
deceased and complainant party with lathis, farsa and
bombs - Trial court disbelieved the prosecution story and
acquitted the accused - Conviction by High Court - Appeal
against conviction - Held: The prosecution was able to        D
establish not only the appellant's presence but also his
active participation as a member of the unlawful assembly
- There was ample evidence to conclude that all the
accused persons had formed an unlawful assembly and
there was common object to assault the deceased who           E
succumbed to the injuries inflicted on him - Trial Judge
was guided that there was a free fight - The said finding
was demonstrably erroneous inasmuch as the prosecution
clearly established the fact that the accused persons were    F
the aggressors - Thus, it was case where the appellant
deserved to be convicted uls.302 in aid of s.149 - The
witnesses, as High Court rightly found were reliable and
stood embedded in their version and remained unshaken
- The witnesses suffered injuries in the occurrence - Their   G
presence at the scene of occurrence cannot be doubted -
Laying emphasis on the minor discrepancies and
omissions in the evidence of prosecution witnesses, who

                           789                                H
790         SUPREME COURT REPORTS               [2015] 4 S.C.R.

A  were natural witnesses to the occurrence and giving stress
  on irrelevant aspects and ultimately to record the acquittal,
  by no stretch of imagination, can be regarded as a
  plausible or possible view expressed by the trial Judge
  and, therefore, the High Court was justified in reversing the
8 judgment of acquittal to one of conviction.

         Appeal: Power of appellate court while exercising the
      appellate jurisdiction against the judgment of acquittal -
      Scope of, discussed.
c
          Witnesses: Injured witnesses/Related/Interested
      witnesses - Reliability of their testimony.

          Dismissing the appeal, the Court
D
      HELD: 1. On a perusal of the testimony of PW- 13
  and the injuries sustained by the deceased, there can
  be no trace of doubt that the death was homicidal in
  nature and was caused by explosive substance. Other
E witnesses had also suffered injuries in the occurrence.
  PW-7, PW-14, PW-15 and PW-16, who were related to
  the deceased were the eye witnesses and they had
  supported the prosecution version. There can be no
  cavil over the proposition that when the witnesses are
F related and interested, their testimony should be
  closely scrutinized, but in the instant case, nothing has
  been elicited in the cross-examination to discredit their
  version. On a studied scrutiny of their evidence, it can
  be said with certitude that they have lent support to
G each other's version in all material particulars. There
  were some minor contradictions and omissions which
  were emphasised by the trial Judge. The High Court
  treated the said discrepancies and the minor
  contradictions as natural. That apart, their evidence
H
              JODHAN v. STATE OF M.P.                   791


also found support from the medical evidence and the        A
initial allegations made in the FIR. The trial Judge has
attached immense emphasis to such omissions and
contradictions which, according to the High Court,
were absolutely insignificant and trivial. The witnesses
who deposed against the accused persons were close          B
relatives and had suffered injuries in the occurrence.
Their presence at the scene of occurrence cannot be
doubted, their version was consistent and nothing was
elicited in the cross-examination to shake their
testimony. There were some minor or trivial                 C
discrepancies, but they really did not create a dent in
their evidence warranting to treat the same as
improbable or untrustworthy. A testimony of an injured
witness stands on a higher pedestal than other
                                                            0
witnesses. Where a witness to the occurrence has
himself been injured in the incident, the testimony of
such a witness is generally considered to be very
reliable, as he is a witness that comes with a built-in
guarantee of his presence at the scene of the crime         E
and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone. [Paras 15, 17, 20, 21]
[804-A; 805-E-H; 806-A, B; 808-E-F; 809-G; 810-A-B]

     Gamini Bala Koteswara Rao v. State of A.P 2009 (14) F
SCR 1: (2009) 10 SCC 636; Kallu v. State of M.P 2006
(1) SCR 201: (2006) 10 SCC 313; Ramesh Babula! Doshi
v. State of Gujarat 1996 (2) Suppl. SCR 265: (1996) 9
SCC 225; Ganpat v. State of Haryana 2010 (12) SCR 400
: (2010) 12 SCC 59; State of Punjab v. Kamai/ Singh 2003 G
(2) Suppl. SCR 593: (2003) 11 SCC 271; Jugendra Singh
v. State of Uttar Pradesh 2012 (6) SCR 193: (2012) 6 SCC
297; Basappa v. State of Kamataka 2014 (3) SCR 391 :
(2014) 5 sec 154 - relied on.
                                                         H
792        SUPREME COURT REPORTS              [2015] 4 S.C.R.

A          2. The prosecution was able to establish not only
      the appellant's presence but also his active
      participation as a member of the unlawful assembly. He
      might not have thrown the bomb at the deceased, but
      thereby he would not cease to be a member of the
B     unlawful assembly as understood within the ambit of
      Section 149 IPC and there is ample evidence on
      record to safely conclude that all the accused persons
      who have been convicted by the High Court had
      formed an unlawful assembly and there was common
C     object to assault the deceased who succumbed to the
      injuries inflicted on him. The trial Judge was guided
      that there was a free fight. The said finding was
      demonstrably erroneous inasmuch as the prosecution
      was clearly established the fact that the accused
0
      persons were the aggressors. The High Court on re-
      appreciation and analysis of the evidence has found
      that the accused persons were the aggressors.That
      apart, as the entire story of prosecution would show,
E     the accused persons armed with lethal weapons had
      gone to the house of deceased and hurled abuses in
      filthy language and on being objected to one of them
      with pre-determined mind threw the bomb on the chest
      of the deceased. Thus, it is case where the appellant
F     deserved to be convicted under Section 302 in aid of
      Section 149, IPC. The witnesses, as the High Court
      rightly found are reliable and have stood embedded in
      their version and remained unshaken. Laying
      emphasis on the minor discrepancies and omissions
G     in the evidence of prosecution witnesses, who were
      natural witnesses to the occurrence and giving stress
      on irrelevant aspects and ultimately to record the
      acquittal,by no stretch of imagination, can be regarded
      as a plausible or possible view expressed by the trial
H
               JODHAN v. STATE OF M.P.                  793


Judge and, there~ore, the High Court is justified in A
reversing the judgment of acquittal to one of
conviction. [Paras 26, 27, 29, 30] [813-D-F; 814-A-G;
816-E, H; 817-A-B]

     Dalip Singh v. State of Punjab AIR 1953 SC 364: 1954   B
SCR 145; Rameshwar v. State of Rajasthan AIR 1952 SC
54: 1952 SCR 377; Hari Obula Reddy v. State of A.P
(1981) 3 SCC 675; State of Punjab v. Jagir Singh 1974
(1) SCR328: (1974) 3 SCC 277; Abdul Sayeed v. State
of M.P. 2010 (13) SCR 311: (2010) 10 sec 259;               c
Ramlagan Singh v. State of Bihar (1973) 3 SCC 881;
Ma/khan Singh v. State of UP (1975) 3 SCC 311; Vishnu
v. State of Rajasthan (2009) 10 SCC 477; Ba/raje v. State
of Maharashtra 2010 (6) SCR 764: (2010) 6 SCC 673;          D
Jarnail Singh v. State of Punjab 2009 (13) SCR 774 :
(2009) 9 SCC 719; Baladin v. State of UP AIR 1956 SC
181; Masalti v. State of UP AIR 1965 SC 202: 1964 SCR
133; Bhargavan v. State of Kera/a 2003 (5) Suppl. SCR
535: (2004) 12 SCC 414; Ramachandran v. State of            E
Kera/a 2011 (13) SCR 923: (2011) 9 SCC 257; State of
A.P v. Gian Chand 2001 (3) SCR 247 : (2001) 6 SCC
71; Takhaji Hiraji v. Thakore Kubersing Chamansingh
(2001) 6 SCC 145; Dahari v. State of UP 2012 (8) SCR        F
1219: (2012) 10 sec 256 - relied on.
                 Case Law Reference

  2009 (14) SCR 1          referred to.     Para 11
  2006 (1) SCR 201         referred to.     Para 11         G
  1996 (2) Suppl.SCR 265 referred to.        Para 12
  2010 (12) SCR 400        referred to.      Para·12

  2003 (2) Suppl.SCR 593 referred to.        Para 13
                                                            H
794        SUPREME COURT REPORTS               [2015] 4 S.C.R.


A       2012 (6) SCR 193        referred to.      Para 13

        2014 (3) SCR 391        referred to.      Para 13

        1954 SCR 145            relied on.        Para 18
B       1952 SCR 377            relied on.        Para 18

        (1981) 3 sec 675        relied on.        Para 19

        1974 (1) SCR 328        relied on.        Para 20
c       2010 (13) SCR 311       relied on.        Para 21

        (1973) 3 sec 881        relied on.        .Para 21

        (1975) 3 sec 311        relied on.        Para 21
D
        (2009) 10 sec 477       relied on.        Para 21

        2010 (6) SCR 764        relied on.        Para 21

        2009 (13) SCR 774       relied on.        Para 21
E
        AIR 1956 SC 181         relied on.        Para 23

        1964 SCR 133            relied on.        Para 23

        2003 (5) Suppl. SCR 535 relied on.        Para 24
F
        2011 (13) SCR 923       relied on.        Para 25

        2001 (3) SCR 247        relied on.        Para 28

        (2001) 6 sec 145        relied on.        Para 28
G
        2012 (8) SCR 1219       relied on.        Para 28

         CRIMINAL APPELLATE JURISDICTION: Criminal
      Appeal No. 1683 of 2010.
H
                JODHAN v. STATE OF M.P.                      795


    From the Judgment and Order dated 12.12.2005 of the A
High Court of Judicature at Madhya Pradesh, Gwalior Bench
in Crl. A. No. 214 of 1995.

     Varinder Kumar Sharma, Vipin Kumar, K. K. Shrivastava
(for Deepak Goel) for the Appellant.                             B

    C. D. Singh for the Respondent.

    The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. The present appeal calls in              C
question the defensibility and the legal sustainability of the
Judgment of conviction and order of sentence passed by
the Division Bench of the High Court of Madhya Pradesh,
Bench at Gwalior in Criminal Appeal No. 214 of 1995
whereby the High Court has dislodged the Judgment of             D
acquittal recorded by the learned Additional Sessions Judge
in respect of all the accused persons including the present
appellant for the offences punishable under Sections 302,
323, 324 read with Sections 149 of the Indian Penal Code
(IPC) and 148 IPC and proceeded to sentence each of              E
the accused under Section 302 read with Section 149 of
IPC and imposed rigorous imprisonment for life along with
separate sentences for other offences with the stipulation
that all the sentences would be concurrent. Be it noted,         F
the appellant and one Mangal Singh were also tried
under Sections 3 and 4 of the Explosive Substances Act,
1908.

    2. The facts which are essential to be exposited for
the disposal of this appeal are that on 7.1.1984 about 9.00 G
a.m. when Ratta, PW-7, was at his home, the accused
persons, namely, Mangal Singh, Babbu, Jodhan,
Kanchhedi, Bhinua, Ramswaroop and Natthu and others
came there armed with lathis, farsa and handmade bombs H
796         SUPREME COURT REPORTS               [2015] 4 S.C.R.


A     and started abusing Ratta and his family members and
      exhorted that they would not leave the Kumharwalas alive.
      As alleged, Kanchhedi assaulted Rukmanibai on her left
      hand with farsa, Jodhan, the present appellant, caused
      injury in the right leg of Heeralal, PW-16, by throwing a
B     handmade bomb at him and accused Mangal Singh threw
      a handmade bomb on the chest of Siriya alias Shriram as
      a result of which he received serious injuries. Other
      accused persons used lathi in the incident. As the
      prosecution story proceeds, Ratta lodged an FIR, Ex.
C     P/24, on 7.1.1984 about 12.15 p.m. and by that time Siriya
      @ Shriram had already succumbed to the injuries. The
      injured persons were medically examined and on
      requisition by the investigating agency postmortem was
      carried out. The investigating agency in the course of
0
      investigation prepared the spot map, collected the
      bloodstained soil from the place of incident, and further,
      as is demonstrable, on being led by the accused
      persons seized the weapons, namely, lathi, farsa and
E     handmade bombs and, thereafter, sent the seized articles
      to the chemical examiner for analysis. The investigating
      officer recorded the statements of the witnesses and
      eventually placed the chargesheet in the court of Chief
      Judicial Magistrate, Vidisha, who, in turn, committed the
 F    matter to the Court of. Session, Vidisha.

       3. The learned trial Judge framed charges under
  Sections 302, 323, 324 read with Sections 149 and 148
  of IPC against all the accused persons and an additional
G charge under Section 324 IPC against the accused
  Kanchhedi and under Sections 3 and 4 of Explosive
  Substances Act against Jodhan and Mangal Singh.

      4. The accused persons pleaded not guilty and took
H the plea of false implication. It was the further case of
                JODHAN v. STATE OF M.P.                          797
                   [DIPAK MISRA, J.]

the accused persons that the informant and others had A
confined Babbu Khangar in a room and assaulted him and
because of the injuries inflicted on Babbu he expired later
on.

     5. In order to establish the charges levelled against        B
the accused persons the prosecution examined as many
as 16 witnesses and marked number of documents as
Exhibits. During trial Mishri, PW-1, Harnam Singh, PW-
3, Tulsa Bai, PW-4 and Hazrat Singh, PW-5, did not
support the prosecution story and accordingly were                C
declared hostile by the prosecution. The learned trial Judge
while appreciating the evidence on record noted certain
discrepancies, expressed doubt about the testimony of the
witnesses who had deposed in favour of the prosecution,
referred to the cases pending in the Court, the free fight        D
between the parties, absence of satisfactory explanation
by the prosecution as regards the injuries sustained by
the accused persons, the absence of independent
evidence on record and accordingly disbelieved the story
of the prosecution and acquitted all the accused persons.         E

    6. At this juncture, it is worthy to note that one Babula!
who was arraigned as an accused in the FIR died before
the chargesheet could be filed and, therefore, six accused
persons faced the trial.                                          F

     7. Being dissatisfied with the judgment of acquittal,
the State preferred the criminal appeal against the six
accused persons. During the pendency of the appeal
Mangal Singh expired and the appeal stood abated G
against him. The High court reappreciated the evidence
on record and opined that the view expressed by the
learned trial Judge was totally incorrect and could not be
regarded as a plausible one and, accordingly, reversed
                                                           H
798        SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A the same and recorded the conviction and imposed the
  sentence as has been stated hereinbefore. Hence, the.
  present appeal.  Except the present appellant, the other
  accused persons have not preferred any appeal.

B          8. We have heard Mr. Varinder Kumar Sharma,
      learned counsel for the appellant and Mr. C.D. Singh,
      learned counsel for the respondent.

         9. It is submitted by Mr. Sharma, learned counsel for the
C appellant that the High Court while unsettling an order of
    acquittal should exercise the appellate power with great
    care and caution and it must be for substantial compelling
    reasons and the appellate court should not reverse a
    judgment of acquittal unless it finds that the same is totally
o perverse and wholly unsustainable. It is put forth by him
    that in the instant case the learned trial Judge had analysed
    the evidence brought on record in an appropriate manner,
    noted the discrepancies and contradictions and hence,
    the view expressed by him, being a plausible one,
E . there was no warrant or justification on the part of the
    High Court to interfere with the same. Learned counsel
    would submit that the witnesses who have been placed
    reliance upon by the High Court are interested witnesses
    being family members of the informant and when all other
F independent witnesses have not deposed in favour of the
    prosecution the view expressed by the trial court deserved
    acceptation.      It is contended by Mr. Sharma, that the
    prosecution has failed to explain why other eye witnesses
    who were present at the spot were not examined and such
G non-furnishing of explanation having not been properly
    appreciated by the High Court, the judgment of reversal
    is unsustainable.      It is also contended by Mr. Sharma
    that when the appellant had not caused any injury on the
H deceased, he should not have been convicted under
                JODHAN v. STATE OF M.P.                         799
                   [DIPAK MISRA, J.]

Section 302 IPC, for he would be liable for his overt act A
only and not for others.

      10. Mr. C.D. Singh, learned counsel for the State would
submit that the findings recorded by the learned trial
Judge are not founded on proper appreciation of the              B
evidence on record and, in fact, they are perverse and
totally untenable and, therefore, the High Court is
justified in interfering with the judgment. It is urged by
him that the view of acquittal as expressed by the learned
trial Judge cannot be regarded as a plausible one. The           C
discrepancies and the contradictions that have been
perceived by the learned trial judge, submits Mr. Singh,
are absolutely minor and they really do not even create a
mild dent on the prosecution version. It is his further
submission that the principal witnesses who have been            D
nomenclatured as interested witness are the close family
members who had witnessed the occurrence and further
they had sustained injuries in the incident, and hence,
there is no reason for disbelieving their testimony.
Learned counsel has contended that when the                      E
prosecution has been able to establish the case beyond
reasonable doubt on the basis of the evidence brought on
record its version could not have been thrown overboard
on the ground that other independent witnesses had not           F
been examined, for it is open to the prosecution even not
to examine a material witness under certain circumstances
and in the instant case nothing has been pointed out by
the accused persons to show that the witness was one
such material witness without whose evidence the                 G
prosecution version was bound to collapse or flounder.
Lastly, it is canvassed by Mr. Singh that when the accused
persons formed an unlawful assembly, Section 149 gets
squarely attracted and in that circumstance the appellant
cannot be permitted to advance an argument that he is            H
800         SUPREME COURT REPORTS                    (2015) 4 S.C.R.


A     not liable to be convicted under Section 302 IPC as he had
      not assaulted the deceased.

           11. To appreciate the submissions raised at the bar, we
      think it relevant to deal with the power of the appellate
 s    court while exercising the appellate jurisdiction against the
      judgment of acquittal. This Court in Gamini Bala
      Koteswara Rao v. State of A.P.£11 has held that it is
      well settled in law that it is open to the High Court to
      reappraise the evidence and conclusions drawn by the trial
C     court but only in a case when the judgment of the trial
      court is stated to be perverse. The word 'perverse' in
      terms as understood in law has been defined to mean
      'against the weight of evidence'. In Kallu v. State of
      M.P.121, it has been held that if the view taken by the trial
D     court is a plausible view, the High Court will not be justified
      in reversing it merely because a different view is possible.
      Elaborating further it has been ruled that while deciding an
      appeal against acquittal, the power of the appellate court
      is no less than the power exercised while hearing
 E    appeals against conviction. In both types of appeals,
      the power exists to review the entire evidence. However,
      one significant difference is that an order of acquittal will not
      be interfered with, by an appellate court, where the judgment
      of the trial court is based on evidence and the view taken
 F
      is reasonable and plausible. It will not reverse the
      decision of the trial court merely because a different view
      is possible. The appellate court will also bear in mind
      that there is a presumption of innocence in favour of
G     the accused and the accused is entitled to get the benefit
      of any doubt.


      1 (2009) 1o sec 636

H     2 (2006) 10 sec 313
                 JODHAN v. STATE OF M.P.                          801
                    [DIPAK MISRA, J.]

     12. In Ramesh Babula! Doshi v. State of Gujaratl31,           A
this Court has taken the view that while considering the
appeal against acquittal, the appellate court is first required
to seek an answer to the question whether the findings
of the trial court are palpably wrong, manifestly erroneous
or demonstrably unsustainable and if the court answers the         B
above question in the negative, the acquittal cannot be
disturbed.      In Ganpat v. State of Haryana14l, after
referring to earlier authorities certain principles have been
culled out. They read as follows:-
                                                                   c
     "15. The following principles have to be kept in mind
     by the appellate court while dealing with appeals,
     particularly, against an order of acquittal:

     (i) There is no limitation on the part of the appellate D
     court to review the evidence upon which the order of
     acquittal is founded and to come to its own
     conclusion.

     (ii) The appellate court can also review the trial court's    E
     conclusion with respect to both facts and law.

     (iii) While dealing with the appeal preferred by the
     State, it is the duty of the appellate court to marshal
     the entire evidence on record and by giving cogent            F
     and adequate reasons may set aside the judgment of
     acquittal.

     (iv) An order of acquittal is to be interfered with only
     when there are 'compelling and substantial reasons'
     for doing so. If the order is 'clearly unreason9ble',         G
     it is a compelling reason for interference.

3 (1996) 9 sec 22s

4 (2010) 12 sec 59                                                 H
802         SUPREME COURT REPORTS                  [2015] 4 S.C.R.

A           (v) When the trial court has ignored the evidence or
            misread the material evidence or has ignored
            material documents like dying declaration/report of
            ballistic experts, etc. the appellate court is competent
            to reverse the decision of the trial court depending
B           on the materials placed."

       13. In State of Punjab v. Karnail Singh[5J, the Court
  opined that the paramount consideration of the court is
  to ensure that miscarriage of justice is prevented. A
C miscarriage of justice which may arise from acquittal of
  the guilty is no less than from the conviction of an innocent.
  In a case where admissible evidence is ignored, a duty is
  cast upon the appellate court to reappreciate the evidence
  even where the accused has been acquitted, for the
D purpose of ascertaining as to whether any of the accused
  committed any offence or not. The aforestated principles
  have been reiterated in Jugendra Singh v. State of Uttar
  Pradeshl61 and Basappa v. State of Karnataka[71.

E     14. Keeping in view the aforesaid enunciation of the
  legal principles we have to scrutinize whether the
  appreciation of the evidence by the learned trial Judge was
  so unacceptable having not been properly marshalled
  and hence, it was the obligation of the High Court to
F reappreciate the evidence and record a conviction. Before
  we proceed to delve into the grounds of interference by
  the High Court in a judgment of acquittal within the
  parameters indicated hereinabove, we think it appropriate
  to refer to the post mortem report of the deceased Siria
G

      5 (2003) 11 sec 271

      a (2012) a sec 297
H     7 (2014) 5 sec 154
               JODHAN v. STATE OF M.P.                       803
                  [DIPAK MISRA, J.]

@ Shriram.     Dr. Arun Kumar Srivastava, PW-13, has          A
conducted the autopsy on the dead body and in his report,
Ex. P-32, he has recorded the following findings:-

     "Full thickness continuous patch of burnt area with
     blackening and most of the skin area over front of B
     chest is in form of roasted patches of skin. Burn
     area over chest is bordered with red area of skin of
     1 cm thickness. This burnt area extends from
     mentum, sub mental region and extending laterally
     to both sub mandibular region, going downwards the C
     burnt area enlarges over front and sides of neck over
     suprasternal notch. Then burnt area laterally beyond
     lateral border of sternum measuring 29 cm.
     Maximum vertical length and broadest area is 14 cm.
     there are 3 lacerated wounds situated in this burnt D
     area.

     1. Lacerated wound - obliquely placed over left 4th
     intercostals space close to lateral border of sternum
     3 cm x 1 cm x 1 cm depth.                                E

     2. Lacerated wound over sternum close to lateral
     border of sternum 1 cm x cm x skin deep.

     3. Lacerated wound medical to lacerated wound no. 2,     F
     cm x cm over sternum. Skin deep.

     No foreign body found in these wounds.

     Roaster patch of burn mark over left hand with
     blackening 3 cm x 1.5 cm. Dorsally and distally G
     placed over metacarpal bone in relation to left index
     finger."

    15. According to the evidence of the autopsy surgeon,
the deceased died due to extensive haemorrhage, shock         H
804         SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A     and lung compression and the injuries were caused by
      explosive substance. On a perusal of the testimony of PW-
       13 and the injuries sustained by the deceased, there can be
      no trace of doubt that the death was homicidal in nature
      and was caused by explosive substance. It is manifest
B     from the record that other witnesses had also suffered
      injuries in the occurrence. As is noticed, Ratta, PW-
      7, Rukmanibai, PW-14, Rambai, PW-15 and Heeralal, PW-
       16, who are related to the deceased are the eye
      witnesses and they have supported the prosecution version.
C     All the witnesses have suffered injuries. Heeralal, PW-16
      as per the treating physician, had suffered blast injury over
      dorsal aspect of right leg with blackening.           He was
      advised for X-ray of right leg. Rukmanibai, PW-14, had
      sustained an incised wound over the left hand Anteriorly
0
      (Posterior). From the base of 5th metacarpal to head of
      2"d metacarpal 30 x x skin deep muscles partially cut,
      abrasion over the back of left wrist" x ", and abrasion over
      the left leg lower anterior 1/3" x ". As per the injury report,
E     injury no. 1 was caused by sharp object and the other
      injuries were caused by hard and blunt object. Ratta, PW-
      7 had sustained abrasion over the left leg at tibial luburosity
      1 " x 1". All the injuries had been caused by hard and blunt
      object. The other witnesses similarly had sustained injuries.
F     The injuries on the body of the eye witnesses have been
      proven by PW-12 and supported by MLC reports.

       16. Having noted the injuries suffered by the deceased
  and the witnesses, it is to be examined what has been
G deposed by the prosecution witnesses that have been
  given credence to by the High Court disagreeing with
  the view expressed by the learned trial Judge. As has been
  stated earlier, eye witnesses are Ratta, PW-7, Rukmanibai,
  PW-14, Rambai, PW-15 and Heeralal, PW-16. As per
H the evidence of Ratta, PW-7, the accused persons,
                JODHAN v. STATE OF M.P.                     805
                   [DIPAK MISRA, J.]

namely, Jodhan, Ramswaroop, Bherosingh @ Bhinua, A
Babbu @ Babula!, Natthu, Mangal Singh and Kanchhedi
came near his house and abused in filthy language. The
deceased, Siria, came and objected about the abuses being
hurled by Mangal Singh who immediately threw a hand
made bomb over the chest of Siria who sustained injuries. B
Jodhan threw a handmade bomb on Heeralal, PW-16, and
the other accused persons assaulted the injured persons.
As per the prosecution version, the villagers came on the
spot and caught hold of Mangal Singh and Babula! and
confined them in Siria's house. Ratta lodged an FIR, C
Exhibit P-24, and brought injured Siria, Heeralal and
Rukmanibai and others to the hospital. Siria @ Shriram was
declared brought dead by the Doctor and as has been
stated earlier, other injured persons availed treatment.
                                                               D
     17. As per the evidence brought on record, the incident
had taken place near the house of the deceased and the
witnesses. The criticism that has been advanced against
these witnesses is to the effect they are interested
witnesses and hence, their version does not deserve E
acceptance is sans merit, for they are the witnesses who
were there at the spot and sustained injuries. They are
close relatives and they have stood firm despite incisive
cross-examination. There can be no cavil over the F
proposition that when the witnesses are related and
interested, their testimony should be closely scrutinized,
but as we find, nothing has been elicited in the cross-
examination to discredit their version. On a studied
scrutiny of their evidence, it can be said with certitude that G
they have lent support to each other's version in all
material particulars.       There are some              minor
contradictions and omissions which have been
emphasised by the learned trial Judge. The High Court
has treated the said discrepancies and the minor H
806         SUPREME COURT REPORTS                (2015] 4 S.C.R.

A contradictions as natural. That apart, their evidence also
  find support from the medical evidence and the initial
  allegations made in the FIR. The High Court has opined
  that there is no inconsistency in their version and on a
  perusal of the said evidence, we find there is absolutely
B no inconsistency which will compel a court of law to discard
  their version. The learned trial Judge, as is evincible, has
  attached immense emphasis to such omissions and
  contradictions which, according to the High Court, with
  which we concur, are absolutely insignificant and trivial.
C It is also perceived that the learned trial Judge has given
  notable stress on the fact that the accused persons and the
  informant were in inimical terms due to non-voting by the
  informant's party in their favour.      In our considered
  opinion, in the present case, the same cannot be a ground
0
  for not placing reliance on the eye witnesses who have
  supported the prosecution version.

       18. It is emphatically submitted by Mr. Sharma, learned
  counsel for the appellant that when the witnesses are
E interested witnesses and other independent witnesses had
  turned hostile, the High Court should not have relied on
  such witnesses and overturned the judgment of acquittal
  by the learned trial Judge. First, we shall deal with the
F credibility of related witnesses. In Dalip Singh v. State
  of Punjabl81, it has been observed thus:-

           "We are unable to agree with the learned Judges of
           the High Court that the testimony of the two
           eyewitnesses requires corroboration. If the foundation
G          for such an observation is based on the fact that the
           witnesses are women and that the fate of seven men
           hangs on their testimony, we know of no such rule. If

H     8 AIR 1953 SC 364
                  JODHAN v. STATE OF M.P.                        807
                     [DIPAK MISRA, J.]
                                                                   I
     it is grounded on the reason that they are closely           A
     related to the deceased we are unable to concur.
     This is a fallacy common to many criminal cases and
     one which another Bench of this Court endeavoured
     to dispel in Rameshwar v. State of Rajasthanl91."
                                                                  B
    In the said case, it has also been further obseNed:-

     "A witness is normally to be considered independent
     unless he or she springs from sources which are
     likely to be tainted and that usually means unless the C
     witness has cause, such as enmity against the
     accused, to wish to implicate him falsely. Ordinarily
     a close [relative] would be the last to screen the real
     culprit and falsely implicate an innocent person. It is
     true, when feelings run high and there is personal cause     o
     for enmity, that there is a tendency to drag in an
     innocent person against whom a witness has a
     grudge along with the guilty, but foundation must be
     laid for such a criticism and the mere fact of
     relationship far from being a foundation is often a E
     sure guarantee of truth."

     19. In Hari Obula Reddy v. State of A.P.1101, the Court
has ruled that evidence of interested witnesses per se
cannot be said to be unreliable evidence. Partisanship            F
by itself is not a valid ground for discrediting or discarding
sole testimony. We may fruitfully reproduced a passage from
the said authority:-

     "An invariable rule that interested evidence can never G
     form the basis of conviction unless corroborated to
     a material extent in material particulars by

9 AIR 1952 SC54

10 (1981) 3 sec 675                                               H
808         SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A           independent evidence. All that is necessary is that
            the evidence of interested witnesses should be
            subjected to careful scrutiny and accepted with
            caution. If on such scrutiny, the interested testimony is
            found to be intrinsically reliable or inherently
B           probable, it may, by itself, be sufficient, in the
            circumstances of the particular case, to base a
            conviction thereon."

           20. The principles that have been stated in number of
C     decisions are to the effect that evidence of an interested
      witness can be relied upon if it is found to be trustworthy
      and credible. Needless to say, a testimony, if after careful
      scrutiny is found as unreliable and improbable or
      suspicious it ought to be rejected. That apart, when a
D     witness has a motive or makes false implication, the Court
      before relying upon his testimony should seek corroboration
      in regard to material particulars. In the instant case, the
      witnesses who have deposed against the accused persons
      are close relatives and had suffered injuries in the
E     occurrence. Their presence at the scene of occurrence
      cannot be doubted, their version is consistent and nothing
      has been elicited in the cross-examination to shake their
      testimony. There are some minor or trivial discrepancies,
F     but they really do not create a dent in their evidence
      warranting to treat the same as improbable or
      untrustworthy. In this context, it is requisite to quote the
      observations made by the Court in State of Punjab v. Jagir
      Singh1111:-
G          "A criminal trial is not like a fairy tale wherein one is
           free to give flight to one's imagination and fantasy.
           It concerns itself with the question as to whether the

H     11 (1974) 3 sec 277
                 JODHAN v. STATE OF M.P.                 809
                    [DIPAK MISRA, J.]

     accused arraigned at the trial is guilty of the crime A
     with which he is charged. Crime is an event in real life
     and is the product of interplay of different human
     emotions. In arriving at the conclusion about the guilt
     of the accused charged with the commission of a
     crime, the court has to judge the evidence by B
     the yardstick of probabilities, its intrinsic worth and
     the animus of witnesses. Every case in the final
     analysis would have to depend upon its own facts.
     Although the benefit of every reasonable doubt should
     be given to the accused, the courts should not at C
     the same time reject evidence which is ex facie
     trustworthy on grounds which are fanciful or in the
     nature of conjectures."

     21. Tested on the backdrop of aforesaid enunciation of D
law, we are unable to accept the submission of the learned
counsel for the appellant that the High Court has fallen into
error by placing reliance on the evidence of the said
prosecution witnesses. The submission that when other
witnesses have turned hostile, the version of these E
witnesses also should have been discredited does not
commend acceptance, for there is no rule of evidence that
the testimony of the interested witnesses is to be rejected
solely because other independent witnesses who have been F
cited by the prosecution have turned hostile. Additionally,
we may note with profit that these witnesses had
sustained injuries and their evidence as we find is cogent
and reliable. A testimony of an injured witness stands
on a higher pedestal than other witnesses. In Abdul G
Sayeed v. State of M.P.1121, it has been observed that
the question of weight to be attached to the evidence


12 (2010) 1o sec 2se                                       H
810          SUPREME COURT REPORTS             [2015] 4 S.C.R.

A of a witness that was himself injured in the course of
  the occurrence has been extensively discussed by this Court.
  Where a witness to the occurrence has himself been injured
  in the incident, the testimony of such a witness is generally
  considered to be very reliable, as he is a witness that
B comes with a built-in guarantee of his presence at the
  scene of the crime and is unlikely to spare his actual
  assailant(s) in order to falsely implicate someone. It has
  been also reiterated that convincing evidence is required
  to discredit an injured witness. Be it stated, the opinion
C was expressed by placing reliance upon Ramlagan Singh
  v. State of Bihar[131, Malkhan Singh v. State of
  U.P·[141, Vishnu v. State of Rajasthan[ 151 and Balraje
  v. State of Maharashtra[151 and Jarnail Singh v. State
  of Punjab[17J.
D
           22. From the aforesaid summarization of the legal
  principles, it is beyond doubt that the testimony of the
  injured witness has its own significance and it has to be
  placed reliance upon unless there are strong grounds for
E rejection of his evidence on the basis of major
  contradictions and inconsistencies. As has been stated, the
  injured witness has been conferred special status in law
  and the injury sustained by him is an inbuilt- guarantee
F of his presence at the place of occurrence. Thus
  perceived, we really do not find any substance in the
  submission of the learned counsel for the appellant that
  the evidence of the injured witnesses have been

.G    13 (1973) 3 sec 881

      14 (1975) 3 sec 311

      15 (2009) 10 sec 477                                        ...
      16 (201 O) 6 sec 673

H     17 (2009) g sec 719
                 JODHAN v. STATE OF M.P.                       811
                    [DIPAK MISRA, J.]

appositely discarded being treated as untrustworthy by the      A
learned trial Judge.

     23. One of the contentions that has been highlighted
by Mr. Sharma is that there was no justification on the part
of the High Court to convict the present appellant in aid       B
of Section 149 IPC, for he, as per the evidence of the
prosecution, had not done any overt act to cause any injury
to the deceased. The aforesaid submission assumes the
proposition that even if the factum of unlawful assembly is
proven by the prosecution, then also the Court is required      C
to address the individual overt acts of each of the accused.
In Saladin v. State of U.P.1181, it was held that mere
presence in an assembly does not make such a person
member of an unlawful assembly unless it is shown that
he had done something or omitted to do something                D
which would make him a member of an unlawful
assembly. The observations recorded by the three-Judge
Bench in the said case was explained by a four-Judge
Bench in Masalti v. State of U.P.£191 wherein the larger
Bench distinguished the observations made in Baladin            E
(supra) and opined that the said observations must be read
in the context of special facts of the case. The dictum
that has been laid down Masalti (supra) is to the following
effect:
                                                                F
     "... .it would not be correct to say that before a person
     is held to be a member of an unlawful assembly, it
     must be shown that he had committed some illegal
     overt act or had been guilty of some illegal omission
     in pursuance of the common object of the assembly. G
     In fact, Section 149 makes it clear that if an offence

18 AIR 1956 SC 181

19 AIR 1965 SC 202                                              H
812         SUPREME COURT REPORTS                 [2015) 4 S.C.R.


A           is committed by any member of an unlawful assembly
            in prosecution of the common object of that assembly,
            or such as the members of that assembly knew to
            be likely to be committed in prosecution of that
            object, every person who, at the time of the committing
B           of that offence, is a member of the same assembly,
            1s guilty of that offence; and that emphatically
            brings out the principle that the punishment
            prescribed by Section 149 is in a sense vicarious and
            does not always proceed on the basis that the
c           offence has been actually committed by every member
            of the unlawful assembly."

          24. In Bhargavan v. State of Kera1ac201, it has been
      held:-
D
            "... It cannot be laid down as a general proposition of
            law that unless an overt act is proved against a
            person, who is alleged to be a member of an
            unlawful assembly, it cannot be said that he is a
E           member of an assembly. The only thing required is
            that he should have understood that the assembly was
            unlawful and was likely to commit any of the acts which
            fall within the purview of Section 141 IPC."

 F        25. In this context, we may usefully reproduce         a
      passage from Ramachandran v. State of Kera1ac21 1:

            "Thus, this Court has been very cautious in a catena
            of judgments that where general allegations are made
G
            against a large number of persons the court would
            categorically scrutinise the evidence and hesitate to
            convict the large number of persons if the evidence

      20 (2004) 12 sec 414

H     21 (2011) g sec 257
               JODHAN v: STATE OF M.P.                   813
                  [DIPAK MISRA, J.]

     available on record is vague. It is obligatory on the A
     part of the court to examine that if the offence
     committed is not in direct prosecution of the common
     object, it yet may fall under the second part of
     Section 149 IPC, if the offence was such as the
     members knew was likely to be committed. Further B
     inference has to be drawn as to what was the
     number of persons; how many of them were merely
     passive witnesses; what were their arms and weapons.
     The number and nature of injuries is also relevant to
     be considered. 'Common object' may also be C
     developed at the time of incident."

       26. On the bedrock of the aforesaid pronouncement
of law, the submission canvassed by Mr. Sharma does not
merit any consideration inasmuch as the prosecution has D
been able to establish not only the appellant's presence
but also his active participation as a member of the unlawful
assembly.      He might not have thrown the bomb at the
deceased, but thereby he does not cease to be a
member of the unlawful assembly as understood within E
the ambit of Section 149 IPC and there is ample evidence
on record to safely conclude that all the accused persons
who have been convicted by the High Court had formed
an unlawful assembly and there was common· object F
to assault the deceased who succumbed to the injuries
inflicted on him. Thus analysed, the submission enters into
the realm of total insignificance.

     27. At this juncture, we are obliged to deal with the
plea of the accused that Babulal was confined in the house G
of the deceased and that was the genesis of occurrence.
On a scrutiny of the evidence it is found that accused
Mangal Singh and Babulal were caught on the spot and
confined to Siria's house, wherefrom the police H
814         SUPREME COURT REPORTS                [2015] 4 S.C.R.


A     apprehended them and got them admitted in hospital.
      Babulal died in the hospital. The High Court on scrutiny
      of the evidence has found that there is ample evidence on
      record to prove that the accused persons were aggressors
      and it is they who arrived at the place of occurrence and
 B    Mangal hurled abuses and threw the handmade bomb on
      the chest of the deceased, Shriram. Thereafter, the
      evidence shows that Mangal and Babula! got injuries. The
      learned trial Judge has been guided that there was a
      free fight. The said finding is demonstrably erroneous
C     inasmuch as the prosecution has clearly established the
      fact that the accused persons were the aggressors. After
      the episode. of bombing took place there was pelting of
      stones and cpnfinement. It is the accused persons who
      had come arm~d with lethal weapons and it is Mangal who
0
      threw the bomb on the chest of the deceased only because
      he had objected to the hurling of abuses. The learned
      trial Judge, after taking note of the evidence that Mangal
      and Babula! were confined in a room, had opined that
E     there was a free fight. The High Court on reappreciation
      and analysis of the evidence has found that the accused
      persons were the aggressors. That apart, as the entire story
      of prosecution would show, the accused persons armed
      with lethal weapons had gone to the house of deceased
 F    and hurled abuses in filthy language and on being objected
      to one of them, namely, Mangal Singh with pre-
      determined mind threw the bomb on the chest of the
      deceased. Regard being had to the aforesaid evidence, we
      are inclined to agree with the view expressed by the High
G     Court that it is a case where the appellant deserved to be
      convicted under Section 302 in aid of Section 149 of the
      IPC.

      28.  Another limb of submission which has been
H propounded by Mr. Sharma is that the prosecution has
                  JODHAN v. STATE OF M.P.                 815
                     [DIPAK MISRA, J.]

deliberately not examined other independent material A
witnesses who were present at the spot and, therefore, the
whole case of prosecution becomes unacceptable. In this
context, it would be profitable to refer to what has been
held in State of A.P. v. Gian Chandl221. In the said
case, the three-Judge Bench has opined that:-              B

      "14 .... Non-examination of a material witness is again
      not a mathematical formula for discarding the weight
      of the testimony available on record howsoever
      natural, trustworthy and convincing it may be. The C
      charge of withholding a material witness from the
      court levelled against the prosecution should be
      examined in the background of the facts and
      circumstances of each case so as to find whether
      the witnesses are available for being examined in the D
      court and were yet withheld by the prosecution."

     It has been further ruled therein that the Court is
required to first consider and assess the credibility of the
evidence available on record and if the Court finds that the E
evidence adduced is worthy of credence, the testimony
has to be accepted and acted upon though there may
be other witnesses available, who could also have been
examined but not examined. In Takhaji Hiraji v. Thakore
Kubersing Chamansinghl231, it has been opined that F
if the material witness, who unfolds the genesis of the
incident or an essential part of the prosecution case, not
convincingly brought to the fore otherwise, or where there
is a gap or infirmity in the prosecution case which could
have been supplied or made good by examining a witness G
who though available is not examined, the pro~ecution case

22 c2001 > 6 sec 11
23 c2001) 6 sec 145                                         H
816         SUPREME COURT REPORTS              [2015] 4 S.C.R.


A can be termed as suffering from a deficiency and
  withholding of such a material witness would , oblige the
  Court to draw an adverse inference against the
  prosecution, but if here is an overwhelming evidence
  available, and whic. can be placed reliance upon, non-
B examination of such other witnesses may not be material.
  Similarly, in Dahari v. State of U.P.1241, while dwelling upon
  the issue of non-examination of material witnesses, it
  has been succinctly expressed that when the witness is
  not the only competent witness, who would have been fully
C capable of explaining the factual score correctly and the
  prosecution stood fully corroborated by the medical
  evidence and the testimony of other reliable witnesses,
  it would be inappropriate to draw an adverse inference
D against the prosecution.

      29. In the instant case, the witnesses, as the High Court
  has found and we have no reason to differ, are reliable
  and have stood embedded in their version and remained
  unshaken. They have vividly deposed about the genesis
E of occurrence, the participation and involvement of the
  accused persons in the crime and the injuries inflicted on
  the deceased, and on each of them. Therefore, non-
  examination of any other witnesses who might have
F been available on the scene of occurrence, would not
  make the case of the prosecution unacceptable. On that
  score, the case of the prosecution cannot be thrown
  overboard. Thus, we are constrained to reject the
  submission canvassed by Mr. Shanna, learned counsel for
G the appellant.

         30. In the ultimate conclusion, we hold that laying
      emphasis on the minor discrepancies and omissions in the

H     24 (2012) 10 sec 255
                JODHAN v. STATE OF M.P.                       817
                   [DIPAK MISRA, J.]

evidence of prosecution witnesses, who are natural A
witnesses to the occurrence and giving stress on
irrelevant aspects and ultimately to record the acquittal,
by no       stretch of imagination, can be regarded as a
plausible or possible view expressed by the learned trial
Judge and, therefore, we are of the convinced opinion B
that the High Court is justified in reversing the judgment of
acquittal to one of conviction.

   31. Resultantly, the appeal, being devoid of any merit,
has to. pave the path of dismissal, and we so direct.          C

Devika Gujral                             Appeal dismissed.