NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

COMMON LAW METHOD – FIRST TRIMESTER PROJECT

AN ANALYSIS OF

Criminal Appeal Nos. 1479 of 2015

MOTIRAM PADU JOSHI… Appellants

DECIDED ON: 10/07/2018

BENCH TYPE: DIVISION BENCH

JUDGES:{[RANJAN GOGOI] AND [R. BANUMATHI] JJ.}

SUBMITTED BY: SUBMITTED TO:

GANDHARV MAKHIJA
PROF. (DR.) GHAYUR ALAM
ROLL NO. – 2018B.A. LL.B.56
ENROLL NO. – A - 1963

SECTION – A (FIRST YEAR)

The following research paper was completed due to the guidance and support of many people. It is my
privilege to thank the entire person who helped me in the successful completion of this project; I would
specially like to give a token of thanks to our subject teacher DR (PROF) GHAYUR ALAM who helped a lot
in the completion of this project, through his valuable guidance and his academic excellence he played a
pivotal role for this project to be made.
I would also like to express my gratitude towards my batchmates and seniors who helped in making a fruitful
and intellectual discussion which helped me in improving the project to a next level. Finally I would also like
to express my token of thanks to all persons who were involved in the successful completion of this project.

GANDHARV MAKHIJA

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 TABLE OF CONTENTS
S.NO. PARTICULARS PAGE NO.

1. MATERIAL FACTS 4

2. QUESTIONS OF LAW INVOLVED 5

3. ARGUMENT OF APPELLANTS 6

4. ARGUMENT OF RESPONDENT 7

5. ARGUMENT ACCEPTED (with reason) 8

6 ARGUMENT REJECTED (with reason) 9

7 CONCRETE JUDGEMENT 12

8 RATIO DECIDENDI 13

MATERIAL FACTS OF THE CASE

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 Appellants/accused belonged to congress party and the deceased and the prosecution witnesses were
from Shiv Sena party. In the election of Zila Parishad in 1992, both parties became inimical to each
other

 Presence of deadly weapons, absence of deadly weapons would have affected the judgement.

 Deceased Machindra succumbed to his injuries at night, and the FIR was altered from Section 307IPC to
section 302IPC.

 Sub-Inspector Mr. Laxman Shejal collected blood-stained quilt (Article No.3) and also blood-stained
soil and sample mud from the spot and was able to recover the weapons from the accused.

 Same blood group A+ was found on the cloth and on the weapons (sword, golf stick, chain) recovered
by police, i.e. there was corroboration of medical evidence.

QUESTIONS OF LAW
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  The question which arises is that whether the accused party can be held liable under Sections 147 1, 1482,
1493 and 3024 of IPC?

ARGUMENT OF APPELLANTS
1
Punishment for rioting
2
Punishment for rioting, armed with deadly weapon
3
 Every member of unlawful assembly guilty of offence committed in prosecution of common object.
4
 Punishment for murder —Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to
fine.
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 Evidence of PW-2 and his credibility is attacked by the appellants contending that: - (i) PW-2 though
present in the house did not go to the rescue of his brother Machindra and remained a mute spectator;
and (ii) PW-2 has a criminal record.

 Evidence of PWs 3 and 4 is sought to be assailed on the ground that their names were not mentioned in
the First Information Report (FIR) and that they are interested witnesses

 Learned senior counsel for the appellants submitted that in view of the presence of mud on the body of
the deceased, serious doubts arise as to the time and place of occurrence and that there is no possibility
of the occurrence having taken place in the courtyard of the house of deceased Machindra.

 Learned senior counsel for the appellants then contended that only when there are compelling and
substantial reasons, the High Court can interfere with the order of acquittal and in the present case, there
were no such compelling circumstances or glaring mistakes in the judgment of the trial court to reverse
the order of acquittal.

ARGUMENT OF RESPONDENTS
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 The counsel contended that there are 3 eye witnesses namely Anant, brother of deceased (PW-2),
Kesarinath (PW-3) and Vasudeo (PW-4). PWs 2 to 4 have consistently stated that on the date of
incident, after having dinner, deceased was lying on the cot in the courtyard and PWs 3 and 4 were
sitting near him. PW-2 went inside and was taking meal. At about 09.30 pm, the appellants and other
accused armed with weapons came there shouting and running. On seeing the accused armed with
deadly weapons, PWs 3 and 4 got frightened and went inside the house. Appellant Motiram attacked the
deceased with sword on his head, appellant Ratan attacked the deceased with sword on his legs,
appellant Ramnath attacked the deceased with sword on 6 his head and appellant Devidas attacked the
deceased with knife on his foot and legs. On hearing the alarm raised by deceased Machindra, PW-2
came out and raised shouts and on seeing the neighbours, the accused ran away from the spot. PWs 2 to
4 have consistently spoken about the overt act of the appellants as mentioned above.

 Learned Counsel submitted that just prior to the incident, PW-2 went inside the house and was taking
meals. On hearing the alarm raised by his brother Machindra, PW-2 came outside. As the accused were
many in numbers and armed with deadly weapons like swords, knife, motor-cycle chain and sticks etc.,
PW-2 being unarmed would have naturally become frightened and may not have dared to interfere.
Evidence of a witness is not to be disbelieved simply because he has not reacted in a particular manner.

 Counsel mentioned that the deceased Machindra was critically injured and when he was taken to the
police station, on seeing his serious condition, deceased was sent to the hospital along with police
constable Mhatre. PW-2 remained in the police station to lodge the complaint and his statement was
recorded. His brother having been critically injured, PW-2 must have been in a disturbed mind and must
have been in a hurry to rush to the hospital to save his brother. Non-mention of the names of eye
witnesses (PWs 3 and 4) in the FIR should be examined in the situation in which PW-2 was placed.

ARGUMENTS ACCEPTED
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 (With reason)

 SC accepted the account stated by the witnesses.

Firstly, because the evidence of PWs 2 to 4 is corroborated by medical evidence. Further, PW-14 opined
that nineteen to fourteen injuries could have been caused by swords (Articles 8 and 9). Oral evidence of
PWs 2 to 4 is thus corroborated by the medical evidence. PW-14- Dr. Ramrao who conducted the post-
mortem has noticed that “half of the stomach with rice is not digested”. PW-14 opined that the deceased
died within two hours of his last meal which again is consistent with the evidence of PWs 2 to 4.
Medical evidence of PW14 lends assurance to the evidence of PWs 2 to 4.
On testing the evidence of PWs 2 to 4, the High Court found that their evidence is consistent and credit
worthy. We find no reason to take a different view.

 SC accepted the evidence of PW-2, PW-3 and PW-4.

The relationship of PW-2 with the deceased cannot be the reason for doubting the testimony of PW-2. It
is fairly well-settled that relationship is not a ground affecting the credibility of a witness. It was held in
Mohabbat v. State of M.P.5 that merely because the eyewitnesses are family members their evidence
cannot per se be discarded. When there is allegation of interestedness, the same has to be established.
Mere statement that being relatives of the deceased they are likely to falsely implicate the accused
cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a
factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person.

In their evidence, PWs 3 and 4 have stated that on seeing number of accused armed with deadly weapons
got frightened and went inside the house and stood near the window and saw the occurrence. Their
evidence cannot be doubted on the ground that they did not intervene in the attack nor made attempts to
save the deceased. On witnessing a crime, each person reacts in his own way and their evidence cannot
be doubted on the ground that the witness has not acted in a particular manner. The evidence of PWs 3
and 4 cannot be doubted merely because they have not acted in a particular manner.

ARGUMENTS REJECTED
5
(2009) 13 SCC 630
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 (with reason)

 The evidence of PWs 2, 3 and 4 are to be doubted merely because they have not acted in a
particular manner.

Court in Rana Partap v. State of Haryana 6 held that “every person who witnesses a murder reacts in his
own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and
start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the
spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking
the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To
discard the evidence of a witness on the ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and unimaginative way.”
Therefore, the credibility of the witnesses cannot be doubted.

 Evidence of PWs 3 and 4 is to be assailed on the ground that their names were not mentioned in
the First Information Report (FIR).

As rightly pointed out by the High Court, FIR is not an encyclopedia which should contain all the details
of the incident. FIR is not an encyclopedia which is expected to contain all the details of the prosecution
case. It may be sufficient if the broad facts of the prosecution case about the occurrence appear.
Omission as to the names of the assailants or the witnesses may not all the times be fatal to the
prosecution, if the FIR is lodged without delay. Unless there are indications of fabrication, the court
cannot reject the prosecution case as given in the FIR merely because of omission. In the present case,
FIR was registered without delay and prompt registration of FIR itself lends assurance to the prosecution
case. The object of the FIR is to set the law in motion. Omission to give the names of assailants or the
names of witnesses in the FIR is not fatal to the prosecution case. The High Court was right in observing
that non-mention of the names of eye witnesses in the FIR can hardly be fatal to the prosecution case.

 The presence of mud on the thighs and legs raises doubts about the prosecution case.

This submission does not merit acceptance for more than one reason.
6
(1983) 3 SCC 327
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 Firstly, as pointed out earlier, PW-16-Laxman Shejal, Investigating Officer had recovered blood-stained
quilt (Article No.3) from the scene of occurrence i.e. courtyard of house of the deceased and also
bloodstained mud and sample mud. Chemical Analysis Report (Ex. A32) showed presence of ‘A’ group
blood in the quilt.
Additionally, while narrating the occurrence, eye witnesses have stated that after the attack, the deceased
had fallen down from the cot; in that course, thighs and legs of the deceased might have been smeared
with mud. PW-14-Dr. Ramrao had also noticed that the thighs and legs of the deceased was smeared
with mud.
This aspect of submission advanced by the appellants has been elaborately considered by the High Court
in para 13 (42) of its judgment. As rightly observed by the High Court, this is too insignificant a fact to
give importance so as to disbelieve and discard the entire prosecution case as such.

 Learned senior counsel for the appellants had contended that the High Court can interfere with
the order of acquittal that only when there are compelling and substantial reasons.

In an appeal against the order of acquittal, there is no embargo for reappreciating the evidence and to
take a different view; but there must be strong circumstances to reverse the order of acquittal. In the
appeal against order of acquittal, the paramount consideration of the appellate court should be to avoid
miscarriage of justice.
While considering the scope of power of the appellate court in an appeal against the order of acquittal,
court in Chandrappa v. State of Karnataka7summarized the principle as under: -
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the
order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the evidence before it may reach its own
conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to
emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must
bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he is proved guilty by a competent court of
7
(2007) 4 SCC 415
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 law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible
on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.”

Court in Kallu alias Masih and others v. State of M.P. 8 held that “while deciding an appeal against
acquittal, the power of the appellate court is no less than the power exercised while hearing 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 15 an appellate
court, where the judgment of the trial court is based on evidence and the view taken 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 the
accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it
should assign reasons for differing with the decision of the trial court.”

In the present case, as held by the High Court, the trial court has not properly appreciated the evidence
and its findings are perverse. When the approach of the trial court is perverse, in an appeal against the
order of acquittal, a duty is cast upon the High Court to reappreciate the evidence. The High Court on
being satisfied that the conclusion reached by the trial court was erroneous reversed the order of
acquittal recorded by the trial court.

CONCRETE JUDGEMENT

8
(2006) 10 SCC 313
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The division bench [of judges RANJAN GOGOI AND R. BANUMATHI, JJ.] dismissed the appeal. Honorable
judge R. BANUMATHI concluded in the relevant paragraphs of the judgement as follows and judge RANJAN
GOGOI agreed to it:

In the present case, as held by the High Court, the trial court has not properly appreciated the evidence and its
findings are perverse. When the approach of the trial court is perverse, in an appeal against the order of
acquittal, a duty is cast upon the High Court to reappreciate the evidence. The deceased had sustained as many
as twenty-six injuries. PWs 1 to 3 have consistently spoken about the incident and that the appellants were
armed with deadly weapons and the overt acts of the appellants which is corroborated by the medical evidence
and also by recovery of weapons from the appellants/accused.
As observed by the High Court, the trial court gave importance to insignificant aspects like “smearing of the
thighs and legs of the body with mud” and the conduct of the witnesses as to why they have not reacted in a
particular manner and while doing so, the trial court failed to appreciate the substratum of the prosecution case.
The High Court on being satisfied that the conclusion reached by the trial court was erroneous reversed the
order of acquittal recorded by the trial court. We do not find any good ground to interfere with the judgment of
the High Court.

In the result, the conviction of the appellants under Section 302 IPC read with Section 149 IPC is confirmed and
the sentence of life imprisonment imposed upon each of them is confirmed and this appeal is dismissed.

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 RATIO DECIDENDI

Judgement is based on the principle that appellate court has powers over a lower court who gave the decision,
whether an acquittal or a conviction.
An appellate court has full power to review, reappreciate and reconsider the evidence upon which the decision is
based; it may reach its own conclusion, both on questions of fact and of law. Further, if it decides to interfere
and take its own decision, it should assign reasons for differing with the decision of the trial court.
In the aforementioned case, High Court reversed the judgement of trial court and convicted the aforesaid, but
mentioned reasons for the same.

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