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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,
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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.

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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
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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
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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

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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

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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.

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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

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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.

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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.

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