POORANLAL & ANRversusTHE STATE OF MADHYA PRADESH

                       [2017] 10 S.C.R..221


                     POORANLAL & ANR.                                 A
                                v.
             THE STATE OF MADHYA PRADESH·
                (Criminal Appeal No. 1008 of2008)
                       OCTOBER 25, 2017                               B
  [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, .JJ,)
      Penal Code, 1860:
       s. 304 (Part II) rlw s.34 - Prosecution of five accused
(including the 2 appellants-accused) - u!ss. 148, 3021149 and 342 c
JPC - Trial Court acquitted all the accused - lligh Court confined
the acquittal of three accused, but convicted the appellants-accused
u!s. 304 (Part fl) r!w s.34 - On appeal," by the accused, held: High
Court rightly set aside the acquittal of the appellants by segregating
their case from rest of the acquitted accused - They were rightly
convicted u!s. 304 (Part fl) r/w s.34 as tltere was 110 motive or D
intention to kill the deceased, the deceased died 14 days after the
incident and the doctor had not opined that the injuries were
sufficient in ordinm)' course of nature to have caused death.
      Dismissing the appeal, the court
                                                                      E
      HELD: 1. The High Court was justified in setting aside
the acquittal order in respect of the appellants and convicting
them under Section 304 Part II read with Section 34 IPC. The
findings of the High Court are based on proper appreciation of
evidence which the High Court was entitled to record in an appeal
arising out of the order of acquittal once the leave to file the      F
appeal to challenge the order of acquittal was granted to the State
by the High Court. [Paras 17, 19) [225·B-C]                     ·
      2. The. evidence available on record, did establish beyond
reasonable doubt that the appellants' case was capable of being
separated from other three accused with a view to find out their      G
role in the incident as against the other three accused. [Para 21)
[227-A-B]
      3. There was no motive on the part of the accused persons
(appellants) to kill the deceased. The intention was to teach a
lesson to the deceased because he had insulted appellant No.2-        H
                               221
222             SUPREME COURT REPORTS                         [2017] 10 S.. C.R.


A accused in Panchayat on an incident which had occurred in
  marriage in their community in recent past. PW-14-the doctor
  who had performed post mortem did not say in his evidence that
  injuries caused to the deceased were sufficient in the ordinary
  course of nature to have caused death, and the deceased survived
B for 14 days from the date of incident. These factors were rightly
  taken into consideration for holding the appellants guilty for
  committing offwce falling under Section 304 Part II ofIPC. [Paras
  22, 23] [227-B-D]
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1008 of2008.
c
            From the Judgment and Order dated 08.12.2006 of the High Court
      of M. P. at Jabalpur in Criminal Appeal No. 934of1991.
            Vijay Pratap Singh, Prem Prakash, Parmanand Gaur, Advs. for
      the Appellants.
D          Sunny Choudhary, Arjun Garg, Mishra Saurabh, Advs. for the
      Respondent.
            The Judgment of the Court was delivered by
         ABHAY MANOHAR SAPRE, J. I. This appeal is filed by the
E two accused persons against the Judgment/order of the High Court of
  Madhya Pradesh at Jabalpur dated 08.12.2006 in Criminal Appeal No.934
  of 1991 wheri>by the High Court partly allowed the appeal filed by the
  State against the acquittal order dated 07 .05.1991 of the Additional
  Sessions Judge, Khurai, Dist. Sagar in Sessions Trial No.340 of 1990.
  The High Court while upholding the acquittal of other three accused set
F aside the acquittal of the appellants herein and convicted them for an
  offence punishable under Section 304 Part II read with Section 34 of
  the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and
  awarded each of them to undergc rigorous imprisonment for a term of
  five years and to pay a fine of Rs.2000/- each and, in default of payment
G of fine, to further undergo simple imprisonment for a period of three
  months.
             2. In order to appreciate the issues arising in the appeal, relevant
      facts need mention infra.
        3. In short, the case of the prosecution on which the trial against
H the appellants and other three accused proceeded was as follows:
POORANLAL & ANR. v. THE STATE OF MADHYA PRADESH                                   223
          [ABHAY MANOHAR SAPRE, J.]

       4. One Hariya (deceased) was the resident of Village Kublai. A
He was a railway employee. On 30.08.1990, at around 5.00 a.m., he left
for nearby Village-Khurai on a cycle to catch a Train to join his duty at
a nearby place. At that time, it was heavily raining. When Hariya was
passing through a Mahua tree in village - Nirtala, one person suddenly
got down from the tree and hit him with the Lathi (stick). Thereafter B
four more persons armed with Lathis came there and took him away
from the road. All the five persons then assaulted him with Lathies
saying in Hindi "maro sale ko, bada panch bana firta haf' (beat him
bastard - what does he think of him by becoming Panch-Head).
       5. At that time, two sons of Hariya, namely, Ramesh (PW-1)
and Banshi (PW-2) were also reached there on their cycle as they were             C
also going to earn their livelihood in nearby village. One Daryao Singh(PW-
3)-a villager, who was going on his tractor to fill diesel in his tractor, also
reached there.
       6. These persons witnessed the incident of beating and, therefore,
ran towards Hariya to save him from the assailants. The assailants, on D
noticing that a group of persons is fast! y approaching at the scene of
occurrence, ran away from there leaving injured Hariya lying on the
roadside.
      7. Ramesh (PW-1), Banshi (PW-2), Daryao Singh (PW-3) and
some other persons took Hariya to Police Station, Khurai in a tractor             E
where he lodged the FIR (Ex. P-33). Hariya was then taken to the Civil
Hospital, Khurai for medical treatment. Dr. Rakesh Saxena (PW-11)
found 11 injuries on the body of Hariya. In the meantime, the SHO
Police Station, Khurai brought Naib Tahsildar, B.P. Shukla (PW-9) in the
Hospital for recording dying declaration ofHariya. It was accordingly             F
recorded (Ex.P-20).
       8. · Hariya struggled for survival but eventually succumbed to the
injuries on 13.09.1990 almost after 14 days of the incident. Dr. Prabhat
Bharadwaj (PW-14) performed the post mortem of his dead body.
       9. According to the prosecution, the assailants and Hariya                 G
belonged to the same caste. There was previous enmity between one
assailant-Gaya Prasad and Hariya due to some verbal utterances, which
were exchanged between both of them in a marriage wherein the Samaj
Panchayat of which Hariya was the head, had imposed some fine on
Gaya Prasad. It is due to this reason, this incident took place.
                                                                                  H
224             SUPREME COURT REPORTS                          [2017] lO S.C.R.


A            I 0. The Police Authorities then undertook the investigation, .which
      included collecting of material evidence, preparation of site map, blood
      stained earth from the place of occurrence, apprehending five accused
      persons, namely, (I) Pooranlal (2) Gaya Prasad (3) Mahendra (4)
      Shyamlal and (5) Ramlal, their custodial interrogation, recording of
      statement of several witnesses, recovery of sticks etc.
B
             11. The five accused persons were accordingly charged with the
      offences punishahle under Sections 148, 3021149 and 342 IPC. All the
      accused persons abjured their guilt and took a stand that they have been
      falsely implicated in the case. So far as Pooranlal, Shyamlal and Ramlal
      are concerned, they took a plea that they never had any enmity with the
c     deceased because they residt: ;n some other village.
          12. To prove its case, the prosecution examined 17 witnesses.
  The learned Trial Judge, in his order dated 07.0'i. J991, recorded a finding
  that the prosecution has failed to prove the charges against all the accused
  persons beyond the shadow of doubt and accordingly proceeded to record
D the finding of "not guilty" against all of them. In other words, the Trial
  Court acquitted all the five accused persons from the charges.
              13. Challenging the order of acquittal, the State filed appeal before
      the High Court. By impugned judgment, the High Court partly allowed
      the appeal filed by the State. The High Court upheld the acquittal of
 E    three accused, namely, Mahindra, Shaymalal and Ramlal but reversed
      the order of acquittal against two accused persons, namely, Pooranlal
      and Gaya i'ra:;ad and convicted both the accused under Section 304
      Part II read with Section 34 IPC and sentenced each of them to undergo
      rigorous imprisonment for five years' and a fine ofRs.2000/- each and,
 F    in default of payment of fine, tu further undergo three months' simple
      •    •                             ¥"
      1mpnsonment.
          14. Felt aggrieved, accused Pooranlal and Ga ya Prasad have filed
   this appeal by way of special leave against the judgment of the High
   Court challenging their conviction. So far as the State is concerned, they
 G accepted the order of the High Court by which three accused, namely,
   Mahendra, Shyamal and Ramlal were acquitted. In this view of the
   matter, the order of acquittal of three accused named above has become
   final.
          15. Therefore, the only question, which arises for consideration in
 H this appeal, is whether the High Court was justified in setting aside the
POQRANLAL & ANR. v. THE STATE OF MADHYA PRADESH                               225
          [ABHAY MANOHAR SAPRE, J.]

order of acquittal of Pooranlal and Gay a Prasad (appellants herein) and      A
was also justified in convicting both of them for an offence punishable
under Section 304 Part II read with Section 34 IPC?
        16. Heard Mr. Vijay Pratap Singh, learned counsel for the
appellants and Mr. Sunny Choudhary, learned counsel for the respondent.
        17. Having heard the learned counsel for the parties and on perusal   B
of the record of the case, we find no merit in this appeal. In other words,
in our opinion, the High Court was justified in setting aside the acquittal
order in respect of the appellants and convicting them under Section 304
Part II read with Section 34 IPC.
      18. This is how the High Court dealt with the case of the appellants    c
while separating their case from other three accused in Paras 22 to 26
and found them guilty for commission of offence in question:
        "22. Thus, even after ignoring the .~ye-witness account
        available on record, the conviction of R-1 Pooran. and R-2
        Gayaprasad could be founded on the First Information                  D
        Report (Ex.P-33), lodged by the deceased, and his dying-
        declaration (Ex.P-20). In the aforesaid two docume"ts,
        there is consistency with regard to the motive prevailing
        in their minds and overt act of accused Pooranlal, who had
        caused injury on the head of the deceased even though no
        bony fracture was found and subsequent assault by other               E
        including Gayaprasad. However, it is also to be noticed
        that no opinion has been expressed by Autopsy Surgeon
        PW-14 Dr. Prabhat Bharadwaj that injury was sufficient in
        the ordinary course of nature to have caused death.
        Further, admittedly, the deceased had survived for 14 days            F.
        after the incident.
        23. Keeping all these factors in mind, we are of the opinion
        that as far as finding of 'not guilty' recorded against
        Mahendra, Shyamlal and Ramlal is concerned, it calls for
        no interference, as the ·same is based on proper                      G
        appreciation of evidence. Nothing could be pointed out
        to us that finding against them is also perverse, but.as
        regards the finding in favour ·of R-1 Pooranlal and R-2
        Gayaprasad, it. is not only contrary to the evidence on
        r'ecord, but is also perverse and unreasonable.
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226            SUPREME COURT REPORTS                       (2017] 10 S.C.R.


A            24. However, as noted already, R-2 Gayaprasad only
             intended to settle score with Hariya for insulting him by
             requiring to pay the amount of fine for participating in the
             marriage of Hariya's son. In other words, while striking
             the Iathi blows, none of them had any intention to kill
             Hariya. In this view of the matter, R-1 Pooranlal and R-2
B
             Gayaprasad deserved to be convicted for commission of
             offence of culpable homicide not amounting to murder and
             punishable under Seeton 304 Part II of the IPC: See AIR
             1987 SC 1265 (State of Orissa vs. Bhagwan Barik) and
             AIR 2000 SC 1374 (Camila Vaz vs. State of Goa.)
c            25. The incident had occurred nearly 16 years before and
             the R-1 Pooranlal and R-2 Gayaprasad were released on
             bail during pendency of this appeal. In these
             circumstances, sentence of rigorous imprisonment for a
             term of 5 years with fine of Rs.2000/- would be sufficient
D            to meet the ends of justice.
             26. Accordingly, the appeal against acquittal of Mahendra,
             Shyamlal and Ramlal is hereby dismissed, but stands
             allowed in part against Pooranlal and Gayaprasad. While
             affirming their acquittal in respect of the offences
E            punishable under Sections 148, 302, 302 read with 149
             and 342 of the IPC, we convict R-1 Pooranlal and R-2
             Gayaprasad for having committed an offence punishable
             under Section 304 Part II read with Section 34 of the IPC.
             Each one of them is sentenced to undergo rigorous
             imprisonment for a term of 5 years and to pay a fine of
F            Rs.2000/· and in default of payment of fine, to further
             undergo simple imprisonment for a period of 3 months."
         19. We find no good ground to interfere with the aforementioned
  findings of the High Court. In our opinion, the findings of the High Court
  are based on proper appreciation of evidence which the High Court was
G entitled to record in an appeal arising out of the order of acquittal once
  the leave to file the appeal to challenge the order of acquittal was granted
  to the State by the High (:ourt.
            20. In other worJs, the High Court was entitled to appreciate the
      evidence with a view to find out as to whether the finding of acquittal
H
                                                                     -
POORANLAL & ANR. v. THE STATE OF MADHYA PRADESH                              227
          [ABHAY MANOHAR SAPRE, J.]

recorded by the Trial Court was legal or/and proper and was, therefore,      A
entitled to record its own finding of either affirmance or reversal.
       21. The evidence available on record, in our opinion, did establish
beyond reasonable doubt that the appellants' case was capable of being
separated from other three accused with a view.to find out their role in
the incident as against the other three acc;used.                            B
       22. This we say for the reasons that, first, there was no motive on
the part of the accused persons (appellants) to kill Hariya. Second, the
intention was to teach a lesson to Hariya because he had insulted Gaya
Prasad in Panchayat on an incident which had occurred in marriage in
their community in recent past. Third, Dr. Bharadwaj (PW-14) who             c
performed pQst nwrtem did not say in his evidence that injuries caused
to Hariya were sufficient in the ordinary course ofnature to have caused
death, and lastly, Hariya survived for 14 days from the date of incident.
       23. In the facts and circumstances of the case as taken note of
supra, we are of the considered opinion that these factors were rightly D
taken into consideration for holding the appellants guilty for committing
offence falling under Section 304 Part II of IPC.
       24. Learned counsel for the appellants, no doubt, vehemently
argued that the appellants should also have been acquitted like the other
three accused named above. It was also his submission that there was         E
no evidence much less sufficient evidence against the appellants for
holding them guilty for an offence falling under Section 304 Part II IPC.
       25. However, in the light of what we have discussed above wherein
we have given our reasoning, it is not possible to accept the submission
of learned counsel for the appellants. Moreover, we cannot again de          F
novo re-appreciate the evidence. It is not permissible unless the findings
of the High Court are. wholly perverse or against the evidence. Such is
not the case here.
      26. In the light of foregoing discussion, we find no merit in the
appeal. The appeal thus fails and is accordingly dismissed resulting in G
upholding of the order of the High Court.
       27. As a result thereof, the bail granted to Gaya Prasad (appellant
No.2) by this Court's order dated 13.04.2009 stands cancelled. He is
directed to surrender and undergo the remaining jail sentence awarded
by the High Court in case, he has not so far undergone awarded sentence.
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228             SUPREME COURT REPORTS                         [2017] I0 S.C.R.


A           28. So far as Pooranlal (appellant No. I) is concerned, since he
      had not applied for bail, it may be that during this period he may have
      completed his full period of jail sentence. Since learned counsel for the
      appellants is unable to make any statement on this issue, we are of the
      view that the Trial Court will verify this fact from jail records and other
      relevant material and after ascertaining as to how much jail sentence
B
      Pooranlal had already undergone out of five years, will accordingly pass
      necessary orders.


      Kalpana K. Tripathy                                       Appeal dismissed.