caselaws
Supreme Court of India
Premier High School vs Khimji Vidhu on 1 July, 2015Author: …………………………J.
Bench: Pinaki Chandra Ghose, Uday Umesh Lalit
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.2096-2098 of 2009
State of M.P. …. Appellant
Versus
Ashok & Others etc. …. Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. These appeals by special leave challenge the Judgment and Order dated
11.01.2007 passed by the High Court of Judicature of Madhya Pradesh,
Jabalpur bench at Jabalpur in Criminal Appeals Nos. 170 of 1995, 841 of
1995 and 369 of 1996 by which respondents Ashok s/o Banshilal Vedehi, Raju
@ Rajendra s/o Banshilal Vedehi, Gullu @ Rajesh s/o Banshilal Vedehi, Gouri
Shankar s/o Banshilal Vedehi, Vidhna @ Ramdas s/o Lallulal Kewat, Surendra
s/o Harilal Vedehi were acquitted by the High Court of all the charges
leveled against them.
2. According to the prosecution one Tikaram son of Chote Lal Pandey
after finishing his duty was returning home at 8:00 p.m. on 11.04.1989. On
the way he met his younger brother PW13 Sheetal Prasad. Both were coming on
bicycles, PW13 being 10-15 feet behind said Tikaram. When Tikaram reached
Tilwaraghat he was stopped in front of the house of Hari Maharaj by Dibbu @
Devendra by catching his bicycle. Said Dibbu then poured petrol over him
and Jittu @ Jitendra burnt him by igniting a match stick. Tikaram started
burning and ran from the spot. He was surrounded by present respondents and
two others namely Harilal and Banshilal. All of them exhorted to beat him
and to burn him and that he should not be allowed to run from the spot.
Respondent Vidhna @ Ramdas threw a burning tyre upon him. While Tikaram was
running helter-skelter, Harilal threw a sword at him. Tikaram ran to the
house of PW3 Vinod and fell there. PW3 extinguished the fire. The incident
was witnessed by PW13 who ran to the house and conveyed the fact of Tikaram
having been set afire to the inmates of the house. As a result, PW4
Ravindra Kumar Pandey son of said Tikaram and PW15 Laxmi Prasad Pandey
rushed to the scene of occurrence. Tikaram disclosed to both PWs 4 and 15
that he was set afire in the aforesaid manner and by the persons mentioned
above. Tikaram was then removed to Medical College Hospital, Jabalpur.
3. On receiving information, PW16 inspector R.P. Singh went to the
casualty ward and enquired about the condition of Tikaram with letter Ext.P-
30. PW18 Dr. A.C. Nagpal gave certificate that Tikaram was conscious and
in a position to speak. PW16 inspector R.P. Singh thereafter took the
statement of said Tikaram, translation of which is to the following effect:
“Sir, I am residing at Ramnagra. Today I was going to Ramnagra after
performing my duty on Petrol Pump. This incident occurred at Tilwaraghat
opposite the house of Hari Maharaj. I was going by my cycle. My brother
Sheetal Prasad was following me. Dibbu caught hold my cycle and stopped me
and poured petrol on me from a Jug and Jeetu set fire on me by a Match Box.
My body started burning. Hari, Surendra, Bigna, Ashok, Bansi, Raju and the
son of sister of Bansi Maharaj who lives in Kamla Nagar who has beard, the
younger son of Bansi Gullu and 2-3 other persons from city their names I do
not know, surrounded me. I ran away and entered into a room of house of
Vinod Kumar situated nearest and they all were crying “Maaro Maaro Sale Ko,
Bachne Na Paye” and I fell down there. There were so many persons present
who have seen this incident. There is an old enmity and quarrel was going
on between us and Dibbu etc. For taking revenge from the said enmity today
they poured petrol on me and set on fire, in order to kill me. My whole
body has been burnt. My clothes also have been burnt. Report has been read
over and the same has been written as stated by me. Please investigate the
matter.”
4. Pursuant to the aforesaid statement recorded at 8:30 p.m. Dehati
Nalishi Ext. P-20 was lodged and crime was registered. Tikaram was shifted
to ward no. 11 for further treatment. On the same night panchnama was
prepared by said PW16. In the night of 11.04.1989 and 12.04.1989 PW5
Executive Magistrate S.P. Meshram recorded statement Ext. P-17 of said
Tikaram. The statement was recorded after due certification from doctor
about consciousness and fitness of said Tikaram. The translation of the
statement Ext. P-17 is as under:-
“On 11.04.1989 at about 8 O’clock in the evening I was going to my home in
Ramnagra from Jabalpur. Near Tilwaraghat Dibbu alias Devendra poured petrol
on my body and Jittu alias Jitendra burnt me by igniting the matchstick. At
that time I was going on a bicycle on the road. They stopped me and did
this act. My younger brothers Sheetal and Manohar were about 15 Ft. behind
me. I had enmity with Dibbu and Jittu from before. So they did this to me.
Hari, Banshi, Ashok, Raju, Gaurishankar, Gullu, Surendra and Vidhna were
the persons who assaulted me.”
5. On 12.04.1989 at about 8:15 p.m. Tikaram succumbed to his injuries.
On 13.04.1989 at 10:30 a.m. post mortem on the body of said Tikaram was
conducted by PW17 Dr. D.K. Sakalle. According to the post mortem following
facts were noticed:
“There were third degree burns on the body of the deceased on the
scalp, all around neck, face, ears, lips, all over the trunk except the
upper joint of the thighs, over scrotum and penis all around both upper
limbs except tips and nails of fingers on right side. Third degree burns
present all around left thigh, on right thigh all around except the back
part and over upper part of the left leg and the middle part of the right
leg. There were blisters in some parts of the left leg due to burns.
Similarly there were some blisters on the back of the right leg. There was
inflammation around the burn injuries. The deceased was burnt about 90%.
Apart from the burn injuries the following injuries were also there on the
body of the deceased. Incised wound obliquely on back of chest. It was 4”
long, 1” broad and maximum depth was 3/4″. It contained a clot of blood and
there was an abrasion on its left side. There was no injury in any internal
organ of the deceased.”
6. After due investigation charge sheet was filed and 10 accused persons
were sent for trial. The prosecution examined twenty witnesses while three
witnesses were examined in defence. Dying declarations namely statements
Exts.P-20 and P-17, so also oral declarations as deposed by PWs 4 and 15
and the eye-witness account through PW13 were principally relied upon by
the prosecution. Accepting the case of prosecution, the trial court
convicted all the accused. Accused Dibbu @ Devendra and accused Jittu @
Jitendra were found guilty under section 302 I.P.C. and section 148 I.P.C.
while others namely the present respondents along with Harilal and
Banshilal were found guilty under section 302 read with section 149 I.P.C.
Accused Dibbu @ Devendra and accused Jittu @ Jitendra were sentenced to
life imprisonment under section 302 I.P.C. and to rigorous imprisonment of
one year under section 148 I.P.C. All the other accused were sentenced to
life imprisonment under section 302 read with section 149 I.P.C. and to
rigorous imprisonment for 6 month under section 147 I.P.C.
7. All convicted accused persons challenged their conviction and
sentence by filing Criminal Appeal Nos. 170 of 1995, 841 of 1995 and 369 of
1996. During the pendency of said appeals it was reported that accused
Harilal and Banshilal had died and as such their appeals were declared to
have abated. The High Court after going through the record found that the
case of the prosecution was fully established as against accused Dibbu @
Devendra and accused Jittu @ Jitendra. The High Court however gave benefit
of doubt to the respondents on the premise that they had reached the spot
after the commission of offence and as such the charge of formation of
unlawful assembly by them was not established. The observations by the High
Court in that behalf were as under:
“Considering the over-all evidence on record, it is proved beyond
reasonable doubt that Dibbu alias Devendra and Jittu alias Jitendra have
committed the offence. The case of Dibbu and Jittu is established by the
prosecution beyond reasonable doubt in commission of offence. As regards
other appellants in all the connected appeals are concerned, they are
entitled for the benefit of doubt. It is narrated in the dying declaration
and Dehati Nalishi that they reached the spot after the commission of
offence. Therefore, formation of unlawful assembly by them is not
established.”
The judgment of the High Court affirming their conviction and sentence has
not been challenged by the accused Jittu @ Jitendra and Dibbu @ Devendra.
The judgment to the extent it acquitted the present respondents of all the
offences is presently under challenge at the instance of the State of
Madhya Pradesh in these appeals by special leave.
8. Ms. Vanshaja Shukla, learned advocate appearing for the State
submitted that the role of the present respondents in the commission of
crime was clearly made out from the dying declarations as well as from the
testimony of the eye witness. The Injury as found in the post mortem also
supported the eye witness account, which in turn indicated the role played
by accused other than those who stand convicted by the High Court. In her
submission, the view taken by the High Court was completely unsustainable.
Mr. Akshat Srivastava learned advocate appearing for the respondent
supported the judgment of the High Court. It was submitted that the
principal role as alleged in the dying declarations was not as regards the
present respondents and as such they were rightly granted benefit of doubt
by the High Court.
During the course of hearing it was submitted that respondent no.6
namely Surendra s/o Harilal Vedehi had died during the pendency of these
appeals. The learned counsel appearing for the State was directed to
ascertain the fact. Accordingly death certificate of said respondent no.6
has been filed on record indicating that he died on 01.10.2014. We
therefore direct that the proceedings stand abated as against said
respondent no.6.
9. Statement Ext. P-20 leading to the registration of crime as well as
statement Ext. P-17 recorded by the Executive Magistrate are dying
declarations by Tikaram. Both these statements are consistent and name the
present respondents and state the role played by them in surrounding
Tikaram and giving cries that he be beaten and should not be left. In the
face of such assertions, it is impossible to accept that these respondents
arrived at the scene of occurrence after the crime was completed. Their
role is that of participants in the crime who did not allow Tikaram to
escape by encircling him. The finding rendered by the High Court is against
the record.
10. Both the statements clearly referred to the presence of PW13. It was
PW13 who immediately ran home and intimated the fact that Tikaram was set
afire, to the inmates of the house. Consequently PW4 and PW15 arrived at
the scene of occurrence. Tikaram was then removed to the hospital. In his
testimony PW13 stated that while Tikaram was burning, respondent Vidhna @
Ram Das threw a burning tyre upon him and original accused Harilal threw a
sword at him. The post mortem clearly shows an incised injury in the back
suffered by said Tikaram, which completely supports such assertion. Having
gone through the record we find the presence of said PW13 completely
established and accept him to be eye witness to the occurrence. It is
relevant to note that the High Court has also not disbelieved the testimony
of PW13.
11. In the light of the eye witness account and the post mortem report it
is quite clear that the respondents were present when Tikaram was burning
alive. The sequence of narration certainly shows that they were waiting in
ambush. It may be that only two of them set Tikaram afire but the others
definitely ensured by surrounding Tikaram that he would not be allowed to
escape. Further, throwing of burning tyre and the sword would also indicate
the active role played by them. Even if one of them was ready with a sword,
that is clearly indicative of the level of preparedness on their part and
we see no reason how they could not be said to be members of unlawful
assembly. It was a crime which was committed by all of them guided by same
purpose, acting in concert achieving the result that was desired. The
intent of the entire assembly was clear, eloquently established by their
presence, preparedness and participation. Though we are conscious that
while considering an appeal against acquittal we should be extremely slow
in interfering, in our considered view the assessment made by the High
Court in the present case is completely unsustainable and against the
record.
12. We therefore allow these appeals, set-aside the judgment and order of
acquittal rendered by the High Court and restore the judgment of conviction
and sentence as recorded by the trial Court against the respondents. The
respondents shall be taken in custody forthwith to serve the sentence
awarded to them.
…………………………J.
(Pinaki Chandra Ghose)
…………………………J.
(Uday Umesh Lalit)
New Delhi,
July 01, 2015
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