REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 445 OF 2009
(Arising out of SLP (Crl.) No.3895 of 2006)
Santosh Devidas Behade and Ors. ...Appellants
Versus
State of Maharashtra ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Bombay High Court, Nagpur Bench, upholding the conviction of the
appellants for offences punishable under Sections 147, 148, 302 read with
Section 149 of the Indian Penal Code, 1860 (in short the `IPC’). By the
impugned order two Criminal Appeals i.e. Criminal Appeal Nos. 314/2001
and 346/2001 were disposed of. Accused persons are Namdev (A-1),
Santosh (A-2), Mangal (A-3), Subhash (A-4) and Sudam (A-6). The High
Court by the impugned judgment dismissed the appeals.
3. Background facts in a nutshell are as follows:
The Complainant-Chandrakalabai widow of Bharat Kharat was a
resident of Village Dharkanha. At the time of incident, she was residing
with her husband Bharat Mukinda Kharat (hereinafter referred to as the
`deceased’) and two sons in the house situated in the village Dharkanha. It
is the case of the prosecution that Shivcharan (PW6), son of the
Complainant Chandrakala (PW2) as well as Taqnaji, son of Shakuntaiabai,
the keep of deceased Bharat and Shakuntalabai were residing in the said
house. On the day of incident, Shakuntala was not present as she had gone
to Pusad. At that time, work of uprooting the groundnut crop was in
progress in the field of deceased Bharat and several persons from village
Londhari were working in his field. There was a pit dug in front of the
house of Bharat for construction of one room.
2
On 7th June, 1998, at about 1.00 p.m., deceased Bharat and one
Tulshiram Vadar had gone to Pusad and returned home at about 7.00 p.m.
After that, deceased Bharat was taking meal in his house and Tulshiram
went to sleep in front of the house. After some time, at about 8.00 p.m.
accused Namdev Tarpe came to the house of the complainant and told
Bharat that persons from village Yehala were coming to beat him and he
should run away from the spot, or release the dogs. When Bharat came out
of the house, five to six persons encircled Bharat in the courtyard of his
house and started beating him. They were armed with axes, sticks, crowbars
and beat Bharat with the said weapons. When Bharat was being assaulted,
he shouted for help loudly saying “Chandrakala, I am dying.” The
complainant -Chandrakala went to Tulsiram and awakened him. Tulshiram
tried to rescue Bharat from the clutches of the accused; but the accused did
not allow him to help the deceased. The complainant Chandrakala thereafter
went towards the persons of village Londhari and stayed there along with
her sons. The assailants also came there and threatened them not to disclose
the incident and asked them to leave. The persons from village Londhari
thereafter left the place. The accused persons also left the place.
3
The complainant Chandrakala along with her sons went near her
husband deceased Bharat and noticed injuries on his person, who had
already succumbed to those injuries on the spot. The complainant asked her
son Shivcharan (PW-6) the names of the assailants. Shivcharan told her that
the assailants were from village Yehala and gave their names as “Namdeo
Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and
one unknown person to whom he knew by face.”
The complainant along with her sons thereafter went to the house of
Police Patil of village Dharkanha and narrated the incident. The
complainant stayed there for the night and on the next day, she went to
Police Station, Pusad (Rural) and lodged a report. In the report, she
mentioned the names of five accused persons and one unknown person. She
also stated in the report that accused persons assaulted her husband because
one year before the incident, there were murders of one Atmaram and
Laxman of village Yehala and in the said crime, her husband deceased
Bharat was arrested and, therefore, the assailants for taking revenge of the
said murders, and had assaulted Bharat in the incident in question. On the
basis of the report lodged by the complainant investigation was undertaken.
4
After completion of investigation charge sheet was filed and as the accused
persons i.e. seven in number in two Criminal Appeals before High Court
pleaded innocence, trial was held.
It is to be noted that A-1 was absconding and therefore separate
charge sheet was filed against him. The trial Court placed reliance on the
evidence of Chandrakala (PW-2) and Shivcharan (PW-6) and found the
accused persons guilty.
In appeal, the primary stand of the accused persons was that PWs 2
and 6 being related to the deceased their evidence should not be acted upon
particularly when Tulshiram and the younger son of the deceased were not
examined. Additionally, it was submitted that in the Test Identification
Parade (in short the `TI Parade’) held on 3.8.1998 only two accused persons
Sudam and Mangal were identified. Further, the evidence of Shivcharan
(PW-6) only relates to accused Shamrao and, therefore, Section 149 has no
application. It was also submitted that PW-2 cannot be believed as she did
not know the names of the accused persons and the names were told to her
by PW-6. The trial Court did not analyse their evidence and held that merely
because PWs 2 and 6 were the wife and son of the deceased that did not
5
render their evidence suspect. Additionally, the TI parade was held only in
respect of two accused appellants Sudam and Mangal and not in respect of
other accused persons as they were allegedly known to the prosecution
witnesses.
Stand of State was that as others were known, there was no need for
TI Parade. The fact situation clearly shows that Section 149 IPC has
application.
4. In support of the appeal the stands taken before the High Court are re-
iterated by learned counsel for the appellants and for the State.
5. A plea which was emphasized by the appellant relates to the question
whether Section 149, IPC has any application for fastening the constructive
liability which is the sine qua non for its operation. The emphasis is on the
common object and not on common intention. Mere presence in an
unlawful assembly cannot render a person liable unless there was a common
object and he was actuated by that common object and that object is one of
those set out in Section 141. Where common object of an unlawful
assembly is not proved, the accused persons cannot be convicted with the
6
help of Section 149. The crucial question to determine is whether the
assembly consisted of five or more persons and whether the said persons
entertained one or more of the common objects, as specified in Section 141.
It cannot be laid down as a general proposition of law that unless an overt
act is proved against a person, who is alleged to be a member of unlawful
assembly, it cannot be said that he is a member of an assembly. The only
thing required is that he should have understood that the assembly was
unlawful and was likely to commit any of the acts which fall within the
purview of Section 141. The word `object’ means the purpose or design
and, in order to make it `common’, it must be shared by all. In other words,
the object should be common to the persons, who compose the assembly,
that is to say, they should all be aware of it and concur in it. A common
object may be formed by express agreement after mutual consultation, but
that is by no means necessary. It may be formed at any stage by all or a few
members of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be modified or
altered or abandoned at any stage. The expression `in prosecution of
common object’ as appearing in Section 149 have to be strictly construed as
equivalent to `in order to attain the common object’. It must be immediately
connected with the common object by virtue of the nature of the object.
7
There must be community of object and the object may exist only up to a
particular stage, and not thereafter. Members of an unlawful assembly may
have community of object up to certain point beyond which they may differ
in their objects and the knowledge, possessed by each member of what is
likely to be committed in prosecution of their common object may vary not
only according to the information at his command, but also according to the
extent to which he shares the community of object, and as a consequence of
this the effect of Section 149, IPC may be different on different members of
the same assembly.
6. `Common object’ is different from a `common intention’ as it does
not require a prior concert and a common meeting of minds before the
attack. It is enough if each has the same object in view and their number is
five or more and that they act as an assembly to achieve that object. The
`common object’ of an assembly is to be ascertained from the acts and
language of the members composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the course of conduct
adopted by the members of the assembly. For determination of the common
object of the unlawful assembly, the conduct of each of the members of the
unlawful assembly, before and at the time of attack and thereafter, the
8
motive for the crime, are some of the relevant considerations. What the
common object of the unlawful assembly is at a particular stage of the
incident is essentially a question of fact to be determined, keeping in view
the nature of the assembly, the arms carried by the members, and the
behaviour of the members at or near the scene of the incident. It is not
necessary under law that in all cases of unlawful assembly, with an
unlawful common object, the same must be translated into action or be
successful. Under the Explanation to Section 141, an assembly which was
not unlawful when it was assembled, may subsequently become unlawful.
It is not necessary that the intention or the purpose, which is necessary to
render an assembly an unlawful one comes into existence at the outset. The
time of forming an unlawful intent is not material. An assembly which, at
its commencement or even for some time thereafter, is lawful, may
subsequently become unlawful. In other words it can develop during the
course of incident at the spot co instanti.
7. Section 149, IPC consists of two parts. The first part of the section
means that the offence to be committed in prosecution of the common
object must be one which is committed with a view to accomplish the
common object. In order that the offence may fall within the first part, the
9
offence must be connected immediately with the common object of the
unlawful assembly of which the accused was member. Even if the offence
committed is not in direct prosecution of the common object of the
assembly, it may yet fall under Section 141, if it can be held that the offence
was such as the members knew was likely to be committed and this is what
is required in the second part of the section. The purpose for which the
members of the assembly set out or desired to achieve is the object. If the
object desired by all the members is the same, the knowledge that is the
object which is being pursued is shared by all the members and they are in
general agreement as to how it is to be achieved and that is now the
common object of the assembly. An object is entertained in the human
mind, and it being merely a mental attitude, no direct evidence can be
available and, like intention, has generally to be gathered from the act
which the person commits and the result therefrom. Though no hard and
fast rule can be laid down under the circumstances from which the common
object can be called out, it may reasonably be collected from the nature of
the assembly, arms it carries and behaviour at or before or after the scene of
incident. The word `knew’ used in the second branch of the section implies
something more than a possibility and it cannot be made to bear the sense of
`might have been known’. Positive knowledge is necessary. When an
10
offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly knew
was likely to be committed in prosecution of the common object. That,
however, does not make the converse proposition true; there may be cases
which would come within the second part but not within the first part. The
distinction between the two parts of Section 149 cannot be ignored or
obliterated. In every case it would be an issue to be determined, whether
the offence committed falls within the first part or it was an offence such as
the members of the assembly knew to be likely to be committed in
prosecution of the common object and falls within the second part.
However, there may be cases which would be within first part, but offences
committed in prosecution of the common object would be generally, if not
always, be within the second part, namely, offences which the parties knew
to be likely committed in the prosecution of the common object. (See
Chikkarange Gowda and others v. State of Mysore: AIR 1956 SC 731.)
8. In State of U.P. v. Dan Singh and Ors. (1997 (3) SCC 747) it was
observed that it is not necessary for the prosecution to prove which of the
members of the unlawful assembly did which or what act. Reference was
11
made to Lalji v. State of U.P. (1989 (1) SCC 437) where it was observed
that:
“while overt act and active participation may indicate
common intention of the person perpetrating the crime,
the mere presence in the unlawful assembly may fasten
vicariously criminal liability under Section 149”.
9. This position has been elaborately stated by this Court in Gangadhar
Behera and Ors. v. State of Orissa (2002 (8) SCC 381 and Shivjee Singh
and Ors. v. State of Bihar (SLP (Crl.) No.1494/2004 disposed of on
30.7.2008)
10. Merely because the eye-witnesses 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. We shall
also deal with the contention regarding interestedness of the witnesses for
furthering prosecution version. 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.
12
Foundation has to be laid if plea of false implication is made. In such cases,
the court has to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible.
11. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it
has been laid down as under:-
“A witness is normally to be considered independent
unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily a close relation would
be the last to screen the real culprit and falsely implicate
an innocent person. It is true, when feelings run high
and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is
often a sure guarantee of truth. However, we are not
attempting any sweeping generalization. Each case must
be judged on its own facts. Our observations are only
made to combat what is so often put forward in cases
before us as a general rule of prudence. There is no such
general rule. Each case must be limited to and be
governed by its own facts.”
13
12. The above decision has since been followed in Guli Chand and Ors.
v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State
of Madras (AIR 1957 SC 614) was also relied upon.
13. We may also observe that the ground that the witness being a close
relative and consequently being a partisan witness, should not be relied
upon, has no substance. This theory was repelled by this Court as early as
in Dalip Singh’s case (supra) in which surprise was expressed over the
impression which prevailed in the minds of the Members of the Bar that
relatives were not independent witnesses. Speaking through Vivian Bose, J.
it was observed:
“We are unable to agree with the learned Judges
of the High Court that the testimony of the two
eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If it
is grounded on the reason that they are closely related to
the deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which another
Bench of this Court endeavoured to dispel in –
`Rameshwar v. State of Rajasthan’ (AIR 1952 SC 54 at
p.59). We find, however, that it unfortunately still
persists, if not in the judgments of the Courts, at any rate
in the arguments of counsel.”
14
14. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this
Court observed: (p. 209-210 para 14):
“But it would, we think, be unreasonable to
contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of
partisan or interested witnesses…….The mechanical
rejection of such evidence on the sole ground that it is
partisan would invariably lead to failure of justice. No
hard and fast rule can be laid down as to how much
evidence should be appreciated. Judicial approach has
to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is
partisan cannot be accepted as correct.”
15. To the same effect is the decisions in State of Punjab v. Jagir Singh
(AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76) and
Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).
16. The above position was also highlighted in Babulal Bhagwan
Khandare and Anr. v. State of Maharashtra [2005(10) SCC 404], Salim
Saheb v. State of M.P. (2007(1) SCC 699), Sonelal v. State of M.P. (SLP
(Crl.) No.3220 of 2007 disposed of on 22.7.2008) and Mohabbat and Ors. v.
State of M.P. (SLP (Crl.) No. 3251 of 2008)
15
17. As was observed by this Court in Matru v. State of U.P. (1971 (2)
SCC 75) identification tests do not constitute substantive evidence. They are
primarily meant for the purpose of helping the investigating agency with an
assurance that their progress with the investigation into the offence is
proceeding on the right lines. The identification can only be used as
corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain
(1973 (2) SCC 406). The necessity for holding an identification parade can
arise only when the accused are not previously known to the witnesses. The
whole idea of a test identification parade is that witnesses who claim to have
seen the culprits at the time of occurrence are to identify them from the
midst of other persons without any aid or any other source. The test is done
to check upon their veracity. In other words, the main object of holding an
identification parade, during the investigation stage, is to test the memory of
the witnesses based upon first impression and also to enable the prosecution
to decide whether all or any of them could be cited as eyewitnesses of the
crime. The identification proceedings are in the nature of tests and
significantly, therefore, there is no provision for it in the Code of Criminal
Procedure, 1973 (in short the `Code’) and Indian Evidence Act, 1872 (in
short `Evidence Act’). It is desirable that a test identification parade should
be conducted as soon as after the arrest of the accused. This becomes
16
necessary to eliminate the possibility of the accused being shown to the
witnesses prior to the test identification parade. This is a very common plea
of the accused and, therefore, the prosecution has to be cautious to ensure
that there is no scope for making such allegation. If, however, circumstances
are beyond control and there is some delay, it cannot be said to be fatal to
the prosecution.
9. It is trite to say that the substantive evidence is the evidence of
identification in Court. Apart from the clear provisions of Section 9 of the
Evidence Act, the position in law is well settled by a catena of decisions of
this Court. The facts, which establish the identity of the accused persons,
are relevant under Section 9 of the Evidence Act. As a general rule, the
substantive evidence of a witness is the statement made in Court. The
evidence of mere identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and strengthen the
trustworthiness of that evidence. It is accordingly considered a safe rule of
prudence to generally look for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who are strangers to
them, in the form of earlier identification proceedings. This rule of
prudence, however, is subject to exceptions, when, for example, the Court
17
is impressed by a particular witness on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to
the stage of investigation, and there is no provision in the Code which
obliges the investigating agency to hold or confers a right upon the accused
to claim, a test identification parade. They do not constitute substantive
evidence and these parades are essentially governed by Section 162 of the
Code. Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The weight to be
attached to such identification should be a matter for the Courts of fact. In
appropriate cases it may accept the evidence of identification even without
insisting on corroboration. (See Kanta Prashad v. Delhi Administration
(AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra
Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR
1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR
1972 SC 102).
10. In Jadunath Singh and another v. The State of Uttar Pradesh (1970) 3
SCC 518), the submission that absence of test identification parade in all
cases is fatal, was repelled by this Court after exhaustive considerations of
the authorities on the subject. That was a case where the witnesses had seen
the accused over a period of time. The High Court had found that the
18
witnesses were independent witnesses having no affinity with deceased and
entertained no animosity towards the appellant. They had claimed to have
known the appellants for the last 6-7 years as they had been frequently
visiting the town of Bewar. This Court noticed the observations in an earlier
unreported decision of this Court in Parkash Chand Sogani v. The State of
Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957),
wherein it was observed :-
“It is also the defence case that Shiv Lal did not know
the appellant. But on a reading of the evidence of P.W.
7 it seems to us clear that Shiv Lal knew the appellant
by sight. Though he made a mistake about his name by
referring to him as Kailash Chandra, it was within the
knowledge of Shiv Lal that the appellant was a brother
of Manak Chand and he identified him as such. These
circumstances are quite enough to show that the
absence of the identification parade would not vitiate
the evidence. A person who is well-known by sight as
the brother of Manak Chand, even before the
commission of the occurrence, need not be put before
an identification parade in order to be marked out. We
do not think that there is any justification for the
contention that the absence of the identification parade
or a mistake made as to his name, would be necessarily
fatal to the prosecution case in the circumstances.”
11. The Court concluded:
19
“It seems to us that it has been clearly laid down by this
Court, in Parkash Chand Sogani v. The State of
Rajasthan (supra) (AIR Cri LJ), that the absence of test
identification in all cases is not fatal and if the accused
person is well-known by sight it would be waste of time
to put him up for identification. Of course if the
prosecution fails to hold an identification on the plea
that the witnesses already knew the accused well and it
transpires in the course of the trial that the witnesses did
not know the accused previously, the prosecution would
run the risk of losing its case.”
12. In Harbhajan Singh v. State of Jammu and Kashmir (1975) 4 SCC
480), though a test identification parade was not held, this Court upheld the
conviction on the basis of the identification in Court corroborated by other
circumstantial evidence. In that case it was found that the appellant and one
Gurmukh Singh were absent at the time of roll call and when they were
arrested on the night of 16th December, 1971 their rifles smelt of fresh
gunpowder and that the empty cartridge case which was found at the scene
of offence bore distinctive markings showing that the bullet which killed the
deceased was fired from the rifle of the appellant. Noticing these
circumstances this Court held:-
“In view of this corroborative evidence we find no
substance in the argument urged on behalf of the
20
appellant that the Investigating Officer ought to have
held an identification parade and that the failure of
Munshi Ram to mention the names of the two accused
to the neighbours who came to the scene immediately
after the occurrence shows that his story cannot be true.
As observed by this Court in Jadunath Singh v. State of
U.P. (AIR 1971 SC 363) absence of test identification is
not necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villages
only shows that the accused were not previously known
to him and the story that the accused referred to each
other by their respective names during the course of the
incident contains an element of exaggeration. The case
does not rest on the evidence of Munshi Ram alone and
the corroborative circumstances to which we have
referred to above lend enough assurance to the
implication of the appellant.”
13. It is no doubt true that much evidentiary value cannot be attached to
the identification of the accused in Court where identifying witness is a total
stranger who had just a fleeting glimpse of the person identified or who had
no particular reason to remember the person concerned, if the identification
is made for the first time in Court.
14. In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court
upheld the conviction of the appellant even when the witness while
deposing in Court did not identify the accused out of fear, though he had
21
identified him in the test identification parade. This Court noticed the
observations of the trial Judge who had recorded his remarks about the
demeanour that the witness perhaps was afraid of the accused as he was
trembling at the stare of Ram Nath -accused. This Court also relied upon the
evidence of the Magistrate, PW-7 who had conducted the test identification
parade in which the witness had identified the appellant. This Court found,
that in the circumstances if the Courts below had convicted the appellant,
there was no reason to interfere.
15. In Suresh Chandra Bahri v. State of Bihar (1995 Supp (1) SCC 80),
this Court held that it is well settled that substantive evidence of the witness
is his evidence in the Court but when the accused person is not previously
known to the witness concerned then identification of the accused by the
witness soon after his arrest is of great importance because it furnishes an
assurance that the investigation is proceeding on right lines in addition to
furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance,
both for the investigating agency and for the accused and a fortiori for the
proper administration of justice that such identification is held without
avoidable and unreasonable delay after the arrest of the accused. It is in
22
adopting this course alone that justice and fair play can be assured both to
the accused as well as to the prosecution. Thereafter this Court observed:-
“But the position may be different when the accused or
a culprit who stands trial had been seen not once but for
quite a number of times at different point of time and
places which fact may do away with the necessity of a
TI parade.”
16. In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC
31), this Court observed that the evidence of identification becomes
stronger if the witness has an opportunity of seeing the accused not for a
few minutes but for some length of time, in broad daylight, when he would
be able to note the features of the accused more carefully than on seeing the
accused in a dark night for a few minutes.
17. In Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000
(1) SCC 358) after considering the earlier decisions this Court observed:-
“It becomes at once clear that the aforesaid observations
were made in the light of the peculiar facts and
circumstances wherein the police is said to have given
the names of the accused to the witnesses. Under these
circumstances, identification of such a named accused23
only in the Court when the accused was not known
earlier to the witness had to be treated as valueless. The
said decision, in turn, relied upon an earlier decision of
this Court in the case of State (Delhi Admn.) v. V. C.
Shukla (AIR 1980 SC 1382) wherein also Fazal Ali, J.
speaking for a three-Judge Bench made similar
observations in this regard. In that case the evidence of
the witness in the Court and his identifying the accused
only in the Court without previous identification parade
was found to be a valueless exercise. The observations
made therein were confined to the nature of the
evidence deposed to by the said eye-witnesses. It,
therefore, cannot be held, as tried to be submitted by
learned Counsel for the appellants, that in the absence
of a test identification parade, the evidence of an eye-
witness identifying the accused would become
inadmissible or totally useless; whether the evidence
deserves any credence or not would always depend on
the facts and circumstances of each case. It is, of course,
true as submitted by learned Counsel for the appellants
that the later decisions of this Court in the case of
Rajesh Govind Jagesha v. State of Maharashtra (AIR
2000 SC 160) and State of H.P. v. Lekh Raj (AIR 1999
SC 3916), had not considered the aforesaid three-Judge
Bench decisions of this Court. However, in our view,
the ratio of the aforesaid later decisions of this Court
cannot be said to be running counter to what is decided
by the earlier three-Judge Bench judgments on the facts
and circumstances examined by the Court while
rendering these decisions. But even assuming as
submitted by learned Counsel for the appellants that the
evidence of, these two injured witnesses i.e. Bhogilal
Ranchhodbhai and Karsanbhai Vallabhbhai identifying
the accused in the Court may be treated to be of no
assistance to the prosecution, the fact remains that these
eye-witnesses were seriously injured and they could
have easily seen the faces of the persons assaulting
them and their appearance and identity would well
within imprinted in their minds especially when they
were assaulted in broad daylight. They could not be said
24
to be interested in roping in innocent persons by
shielding the real accused who had assaulted them.”
18. These aspects were recently highlighted in Malkhansingh and Others
v. State of M.P. (2003 (5) SCC 746) and Munshi Singh Gautam (dead) and
Ors. v. State of M.P. (2005 (9) SCC 631)
19. If the background facts are considered in the light of the legal
principles set out above, the inevitable conclusion is that the appeal is
without merit, deserves dismissal which we direct.
………………………………….J.
(Dr. ARIJIT PASAYAT)
………………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
March 06, 2009
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