caselaws.org
Supreme Court of India
Viram @ Virma vs The State Of Madhya Pradesh on 23 November, 2021Author: L. Nageswara Rao
Bench: L. Nageswara Rao, B.V. Nagarathna
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 31 of 2019
Viram @ Virma …. Appellant
Versus
The State of Madhya Pradesh …. Respondent
WITH
Criminal Appeal No.32 of 2019
JUDGMENT
L. NAGESWARA RAO, J.
1. These Criminal Appeals are directed against the
judgment of the High Court of Madhya Pradesh at Gwalior
by which the conviction of the Appellants under Sections
147, 302/149, 325/149, 324/149, 323/149 and their
sentences were upheld. On the oral report given by Solal
son of Girdhari (PW-10), FIR No.48 of 1995 was registered
at Police Station Kumbhraj, Guna, Madhya Pradesh. The
informant Solal son of Girdhari stated that Babulal Lodha
son of Prabhulal Lodha and Shankarlal (PW-11) had an
altercation with Shriram and others during the day time on
19.08.1995. After sunset, Shriram Sarpanch, Biram,
1 | Page
Devlal, Gyarasiram, Shrilal, Gangaram, Kamarlal, Ramesh,
Nathulal, Laxminarayan, Sholal son of Gopal Lodhi,
Kanhaiyalal, Moolchand, Navneet Ram, Daula, Bhima,
Hiralal, Dhurya, Bansilal, Hazari, Parmanand, Bala Bux son
of Balram, Ram Narayan Lodha armed with farsa, lathi,
ballam, spear and sword attacked Shankarlal (PW-11) and
Babulal Lodha. The informant along with Rodibai (PW-1),
Shantibai (PW-2), Pana Bai (PW-4), Babulal S/o Girdhari
(PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai
(PW-9) rushed to rescue Shankarlal (PW-11) and Babulal
son of Prabhulal Lodha. Shriram, Devlal, Gyarasi, Shrilal,
Kamarlal, Ramesh @ Barya, Nathulal, Sholal son of Gopal
Lodhi, Kanhaiyalal, Daula @ Daulatram, Bhima, Hira Lal,
Hazari, Parmanand, Bala Bux son of Balram, Ramnarayan,
Laxmi Narayan and Viram @ Virma assaulted the
informant and others who reached the place of incident
with farsa, spear and sword and inflicted injuries on their
heads, legs, back and other parts of the body. The
Appellants were charged under Section 302 and 324 IPC,
alternatively under Sections 147, 302/149, 324/149,
329/149 IPC. There were a total of 21 accused apart from
the two juveniles Ram Narayan and Kanhaiya Lal. 14
witnesses were examined on behalf of the prosecution.
2 | Page
2. On a consideration of the evidence adduced by the
prosecution, the Trial Court held the accused guilty of
committing offences under Section 147, 302/149 for
committing murder of Babulal and under Sections 325/149,
324/149, 323/149 for voluntarily causing hurt to Rodibai (PW-
1), Shantibai (PW-2), Pana Bai (PW-4), Babulal S/o Girdhari
(PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW-
9), Solal son of Girdhari (PW-10) and Shankarlal (PW-11). The
accused were sentenced to life imprisonment for the offence
punishable under Section 302 read with 149 IPC, 3 years
rigorous imprisonment under Section 325/149, 2 years
rigorous imprisonment under section 324/149 and six months
for each count under Section 323/149 IPC. The Trial Court
noticed that except Shankarlal (PW-11), the other witnesses
reached the place of occurrence after the accused assaulted
Babulal son of Prabhulal and Shankarlal. However, the Trial
Court found that the oral testimony of Shankarlal (PW-11) is
creditworthy and there is sufficient corroboration from the
ocular evidence of the other injured witnesses. The Trial Court
observed that the inconsistencies in the testimonies of the
injured eye-witnesses are trivial and their evidence cannot be
rejected on that ground. According to the Trial Court, a
cumulative reading of the oral testimony of the injured eye-
witnesses conclusively proved that the accused inflicted a
3 | Page
fatal injury on the head of the deceased Babulal. The injury
certificates and the oral testimonies of Dr. A.D. Bhindurkar
(PW-13) and Dr. Sitaram Singh (PW-15) was scrutinized by the
Trial Court and the submission on behalf of the defence that
there is a contradiction between the ocular testimony of the
witnesses and the medical evidence was rejected.
3. The High Court dismissed the appeals filed by the
Appellants by holding that there was no error committed by
the Trial Court. The discrepancies in the statements made by
the witnesses in Court were held to be minor in nature on the
basis of which the Appellants cannot be said to be not guilty.
The attack made by all the accused on the deceased Babulal
and the injured witnesses has been narrated by them in one
voice, though with some minor variations.
4. Daulal (A-12), Bhima (A-13), Hazari (A-14), Bala Bux son
of Balram (A-15), Mool Chand (A-19) and Hira Lal (A-21) have
died. Vanshilal (A-2), Navneet Ram (A-3), Dhurya (A-4),
Shrilal (A-7), Kamarlal (A-8), Ramesh (A-9), Nathulal (A-10),
Sholal son of Gopal Lodhi (A-11), Viram (A-18) and Shriram (A-
20) are before this Court in the above Appeals.
5. The Appellants contended that the depositions of all the
witnesses is not supported by medical evidence in respect of
the nature of injuries, number of injuries and the nature of
weapons that were used by the accused. Reliance was placed
4 | Page
on judgments of this Court in Amar Singh v. State of
Punjab1 and Ram Narain Singh v. State of Punjab 2 to
submit that the incongruity in the statements of the eye-
witnesses and the medical evidence is vital and the accused
are entitled for acquittal. The Appellants submitted that only
Shankarlal (PW-11) was a witness to the assault on the
deceased and all the other injured eye-witnesses, admittedly,
arrived at the scene of occurrence, later. Therefore, their
evidence cannot be relied upon by the prosecution to convict
the Appellants under Section 302 read with 149 IPC. Yet
another point raised on behalf of the Appellants is that the
ingredients of Section 149 IPC have not been made out and
the Appellants could not have been convicted with the aid of
Section 149 IPC. The learned Senior Counsel appearing for
the Appellant contended that, in any event, conviction under
Section 302/149 is harsh and excessive and an alternate
conviction under Section 326/149 may be imposed, if the
Court is inclined to uphold the judgment of the High Court.
6. The case of the prosecution is that interference with the
judgments of the Courts below is unwarranted in view of the
abundant evidence on record. Shankarlal (PW-11) is an eye-
witness to the murder of Babulal. The other injured eye-
witnesses corroborated the statement of PW-11. The
1 (1987) 1 SCC 679
2 (1975) 4 SCC 497
5 | Page
inconsistencies and discrepancies in the evidence of all the
eye-witnesses are trivial and cannot be resorted by the
Appellants to their benefit. Though there are certain
inconsistencies between the oral testimony of the witnesses
and medical evidence, the Appellants cannot seek reversal of
the judgments of the Courts below in view of the
overwhelming oral evidence on record.
7. It is well settled law that this Court does not normally re-
appreciate the evidence unless the assessment of the High
Court is vitiated by an error of law or procedure or is based on
error of record, misreading of evidence or is inconsistent with
the evidence. This Court does not enter into credibility of the
evidence with a view to substitute its own opinion for that of
the High Court3. Having scrutinised the record of the courts
below, we are of the considered view that there is no error
committed by them. The death of deceased Babulal was
caused due to the attack by the Appellants. However, the
submission of the Appellants that there is a contradiction in
the oral testimonies and the medical evidence requires
consideration. Shankarlal (PW-11) who is an injured witness
stated that he has seen the accused persons beating the
deceased Babulal. According to him, Shriram (A-20) gave a
sword blow on the head of Babulal. Dhurilal (A-4), Ramesh (A-
3 Dalbir Kaur & Ors. v. State of Punjab, (1976) 4 SCC 158
6 | Page
9), Bala Bux son of Balram (A-15) and others gave farsa blow
to Babulal. When confronted with the statement recorded by
the Police under Section 161 Cr. P.C., the said witness
submitted that he had stated to the Police about the
aforementioned covert acts and he is not aware as to why this
has not been mentioned in his statement. The other
witnesses corroborated the statement of PW-11 and also
spoke about the injuries caused to them by the Appellants.
Dr. A.D. Bhindurkar (PW-13) stated that the deceased was
brought to the hospital at 03:15 AM on 20.08.1995 and he
found the following injuries on his person:
1. “A torn wound in Y shape measuring 8 cm x 1.2 cm x 1.5
cm located on the skin in the region of left parietal bone,
which appears to have been inflicted by hard and blunt
weapon.
2. A bluish mark along with abrasion measuring 1 x 0.5 cm ·
located towards rear side on the joint of right elbow,
which appears to have been inflicted by hard and blunt
weapon.
3. A bluish mark along with abrasion measuring 2 x 2 cm
below left knee in the front region, which appears to have
been inflicted by hard and blunt weapon.
4. A bluish mark measuring 8 x 3 cm located on left side of
chest towards front, which appears to have been inflicted
by hard and blunt weapon.
7 | Page
5. A bluish mark on multiple areas measuring 12 cm x 3 cm
located on the back, which appears to have been inflicted
by hard and blunt weapon.”
Dr. A.D. Bhindurkar (PW-13) was of the opinion that
injury No.1 was fatal and all the other injuries are simple in
nature. He has also stated that the injuries were likely to
have been inflicted by truncheon or luhangi.
8. Babulal son of Prabhulal Lodha succumbed to the injuries
suffered by him. According to PW-13, the injuries were
caused by hard and blunt weapon. Sriram (A-20) who was
carrying a sword, Ramesh (A-9), Daulal @ Daulatram (A-12),
and Mool Chand (A-19) were carrying farsas and Sholal son of
Gopal Lodhi (A-11) was armed with a ballam. The remaining
accused were having sticks in their hands. Apart from some
minor aberrations in the testimony of the injured eye-
witnesses, they were consistent in speaking about the
weapons that were used by the accused.
9. The oral evidence discloses that there was an
indiscriminate attack by the accused on the deceased and the
other injured eye-witnesses. As found by the Courts below,
there is a contradiction between the oral testimony of the
witnesses and the medical evidence. In Amar Singh v.
State of Punjab (supra), this Court examined the point
relating to inconsistencies between the oral evidence and the
8 | Page
medical opinion. The medical report submitted therein
established that there were only contusions, abrasions and
fractures, but there was no incised wound on the left knee of
the deceased as alleged by a witness. Therefore, the
evidence of the witness was found to be totally inconsistent
with the medical evidence and that would be sufficient to
discredit the entire prosecution case.
10. In the instant case, the fatal injury was caused by a hard
and blunt weapon on the left parietal bone. There is no
corresponding injury to the weapons used by Ramesh (A-9),
Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram
(A-20). Therefore, the conviction of the Appellants under
Section 302/149 is not justified. However, there is abundant
evidence on record to show that the Appellants attacked the
deceased and the injured witnesses with deadly weapons.
Therefore, the Appellants are liable to be convicted under
Section 326 read with 149 IPC.
11. The conviction of the Appellants under Sections 325/149,
324/149, 323/149 is confirmed. We are informed that the
Appellants have undergone a sentence of four and half years.
In the facts and circumstances of the case, we are of the
opinion that a sentence of seven years under Section 326/149
would meet the ends of justice.
9 | Page
12. While upholding the judgment of the High Court
regarding the conviction and sentence of the Appellants under
Sections 325/149, 324/149, 323/149 and the sentence
imposed for such offences, we convert the conviction under
Sections 302/149 to 326/149 and sentence from life
imprisonment to seven years. Needless to say, that we are
not expressing any view on the validity of Section 149 IPC
which question is left open.
13. The Appeals are partly allowed.
………………………….J.
[L. NAGESWARA RAO]
…………………………J.
[B. V. NAGARATHNA]
New Delhi,
November 23, 2021.
10 | P a g e
Comments