DESAI - (1.) THESE three appeals arise out of the judgment rendered by a Division Bench of the High Court of Madras in Criminal Appeal No. 295 of 1970 convicting 27 appellants for different offences who were acquitted of all charges levelled against them by the learned Sessions Judge, Chingleput Division in Sessions Case No. 25 of 1969 in which 28 persons were put up for trial for various offences including the one under S. 302 read with S. 34, Indian Penal Code against accused Nos. 1 to 10, 16, 17, 19 and 20, and under S. 302 read with S. 149, Indian Penal Code against rest of the accused and 3 other charges for specific offences under Ss. 323, 324, 325 read with S. 149 and S. 427 read with S. 34, Indian Penal Code The learned Sessions judge entertained a reasonable doubt about the veracity of the prosecution evidence and giving benefit of doubt, rejected the prosecution case in its entirety and acquitted all the accused. The State of Tamil Nadu preferred an appeal to the High Court of Madras against original accused Nos. 1 to 27. No appeal was preferred against the acquittal of original accused No. 28 and it has become final. The High Court practically accepted the entire prosecution case and convicted accused Nos. 1 to 27, i.e. all the accused in respect of whom the State had preferred an appeal, and sentenced them to varying terms of imprisonment on different counts. Original accused Nos. 1-7 and 19 were convicted amongst others, for an offence under s. 302 read with S. 34 of the Indian Penal Code and each of them was sentenced to suffer imprisonment for life. THESE 8 accused preferred Criminal Appeal No. 230 of 1972 under S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1971. Original accused Nos. 8 to 18 and 20 to 27 applied for and obtained special leave in Criminal Appeal No. 238 of 1972. Original accused Nos. 1 to 7 and 19 were also convicted for various other offences and in respect of their convictions for offences other than the one under S. 302 read with S. 34, Indian Penal Code, they applied for and obtained special leave in Criminal Appeal No. 97 of 1973. Thus, these three appeals arise from the same judgment and accordingly were heard together and are being disposed of by this common judgment.
(2.) A curious feature of this case which has caused us not inconsiderable anxiety is that in all 28 persons were challenged before the learned Sessions Judge who framed charges against the accused under 39 different heads. The prosecution in all examined 34 witnesses including prosecution witnesses Nos. 1, 2, 4, 6, 7, 8 and 13 who are alleged to have suffered injuries at the scene of occurrence and in all probability in the course, of the occcurrence, and yet the learned Sessions Judge was not impressed by the evidence of any of these witnesses and rejected the entire prosecution case as unworthy of belief and acquitted all the accused. When the matter was taken to the High Court by the State against all accused, except the last, the High Court was of the opinion that the appreciation of evidence by the learned Sessions Judge has been "so unreasonable that the evidence given by the witnesses was discarded only on the ground that it is the evidence of partisan witnesses and the judgment of the trial court is vitiated by incoherent and heterogeneous medley of confused thinking, clarity and cogency being foreign to the judgment of the trial Court". With this cryptic observation the High Court accepted almost the entire prosecution case except where a concession was made by the learned Public Prosecutor appearing for the State and convicted all the appellants, viz., original accused Nos. 1 to 27 for various offences. Accused Nos. 1 to 7 and 19 were convicted for an offence under S. 302 read with S. 34, Indian Penal Code and each of them was sentenced to suffer imprisonment for life. Accused Nos. 1, 6, 7, 8, 11, 12, to 15, 19, 20, 22, 23, 26 and 27 were convicted for an offence under S. 147, Indian Penal Code and the remaining accused were convicted for an offence under S. 148, Indian Penal Code Accused Nos. 7, 17, 21 and 29 were convicted for an offence under S. 323, Indian Penal Code Accused Nos. 7, 11, 13, 23 and 25 were convicted for an offence under s. 324, Indian Penal Code Accused No. 19 was convicted for an offence under S. 325, Indian Penal Code, and all the accused were convicted with the aid of S. 149, Indian Penal Code, for the aforementioned offences. Some of the accused were also convicted for an offence under S. 427 read with Section 34, Indian Penal Code They were awarded varying sentences on each count simultaneously directing that the substantive sentences would run concurrently. Karpakkam village was no exception to the ordinary faction ridden rural community, the dispute vivisecting the village community dating back to 1956 when accused No. 11 Kuppu Naicker who has a well in land bearing Survey No. 102, wanted to lay a pipe-line to take water to the field bearing No. 166/2 belonging to his wife, Dhanammal. There was another well sunk by the local Panchayat in Survey No. 170 for the use of the village community and when accused 11 wanted to take water from his well in Survey No. 102, an apprehension was entertained by the residents of the village that there would not be enough water in the well in Survey No. 170 and there would be water shortage. Gripped by this apprehension, a majority of the village community resisted the attempt of accused 11 to take water by laying pipelines. This became a prestige issue which led to attacks and counter blasts. Rival parties were led by accused 11 on one side who was keen to lay the pipeline for flow of water including through Survey No. 170 described as 'Meykal Poramboke' in which it was proposed to construct a school building, and the opponents were led by Prosecution witness 31. On 4/03/1967, accused 24 Kumarswami dug a channel for laying the pipeline through Survey No. 170 whereupon P.W. 31 approached the Collector on 6/03/1967, objecting to the digging of the channel for laying pipelines in 'Meykal Poramboke' and on his representation on 7/03/1967, the Collector suspended the permission granted to accused 11 to lay the pipelines. Accused 11 and his companions ignored the order of the Collector and continued to dig the channel. Apprehending that P.W. 31 and his companions may obstruct, accused 24 instituted original Suit No. 2216/67 in the Court of the District Munsif, Poonamalle against P. Ws. 31 and 9 others, seeking to injunct them from obstructing in any manner in laying the pipelines. Subsequently, the District Revenue Officer passed an order Ext. P-5, on 29/07/1968, for laying the pipelines along the cart track in Survey Nos. 169 and 170 and the Tahsildar was asked to demarcate the route along which the pipeline should be laid. One T. A. Thandapani, Prosecution witness 5, at the relevant time Revenue Divisional Officer was directed as per order Ext. P-6 to take immediate action to finalise the track along which the pipeline had to be laid and he was directed to visit the village after giving advance notice to both the contending parties. He visited the village on 11/11/1968 when a written memorandum, Ext. P-1 signed by 63 residents of the village, including P.Ws. 1, 2, 4, 6, 7 and deceased Gajarajan was submitted to him objecting to laying of pipelines. He marked the track along which the line was to be laid by the use of lime powder. A crowd collected at the spot and obstructed marking of the proposed pipeline and part of it was erased as evidenced by Ext. P-20. The officers then withdrew as tension was mounting and Prosecution witness 5 submitted his report Ext. P-7 dated 14/11/1968. The first outward manifestation of hostility occurred on 24/11/1968 when Prosecution witness 31 who was returning to the village from Madras, was attack by a stone hurled at him by accused 5 who was then in the company of accused 1, 4 to 7 and 16 to 19. An information was lodged with the police and Prosecution witness 31 was taken to Royapottah Hospital where he was admitted as indoor patient. This incident appears to be the signal for the tragic events of 27/11/1968. On that day around 2.30 p.m. deceased Gajarajan, brother of Prosecution witness 31 arrived by bus coming from Madras side and was passing through Battai leading to Gangamal Koil on the way to his house and when he was near Casuarina Thope a crowd of about 50 to 60 persons including accused 1-23 and 28 emerged from the Thope and attempted to waylay the deceased. Deceased Gajarajan tried to escape and he was chased and when he was near the well situated near the Teachers' Quarters he was encircled by the crowd and from amongst them he was attacked and beaten by accused 1 with a stick on his right shoulder, by accused 2 on his head with Patta knife and by accused 3 on his head with Vettu Kathi. Deceased Gajarajan took to heels and was chased by the crowd and fell down near the house of Prosecution witness 10 where accused 4 and 5 inflicted injuries with patta knife and accused 6 and 7 hurled stones and accused 19 dropped and big stone on Gajarajan. In the incident that occurred near the house of Prosecution witness 10, several prosecution witnesses also suffered injuries at the hands of different accused. It is alleged that accused 1 beat P. W 6 and Prosecution witness 8 with a stick; accused 2 inflicted injury with patta kathi on Prosecution witness 6; accused 4 caused injuries with patta kathi to P. Ws. 2 and 7; accused 5 attacked Prosecution witness 1 with spear and then hurled a stone at him; accused 8 and 10 caused grievous hurt to Prosecution witness 4; accused 19 hurled a stone at Prosecution witness 2 and caused grievous hurt; accused 23 caused hurt to Prosecution witness 13; accused 24, 25, 26 and 27 inflicted injuries on Prosecution witness 4. Some of the accused committed mischief. Prosecution witness 32 Subramaniam, A.S.I. Police, Tiruvanmyvur received a telephone message that a riot had occurred at Karpakkam Village and before he could get details on phone, the connection was snapped. He rushed with some police constables to the village simultaneously sending intimation for additional police help. When he reached near the house of Prosecution witness 10, he found Gajarajan lying injured. P. Ws. 1, 2, 4, 6, 7 and 13 came to the house of Prosecution witness 10. He arranged for a conveyance for taking injured Gajarajan and Prosecution witness 4 to the General Hospital and then he asked P. Ws. 1, 2, 6 and 7 to accompany him and at the police station recorded First Information Report, Ext. P-2 as narrated by Prosecution witness 1 and registered an offence and commenced investigation. After completing the investigation he submitted challan against 28 accused for various offences. The trial of the accused resulted in acquittal and in appeal by the State, the Court reached the conclusion as hereinbefore recorded. In the appreciation of evidence by the trial court as well as in appeal against acquittal of the accused by the High Court there is very little or no meeting ground with the unfortunate though unavoidable result that both sides practically read the entire evidence before us and wanted us to reach the conclusion on our own appreciation of evidence. Undoubtedly, in respect of those accused who have been convicted for an offence under S. 302/34, Indian Penal Code, there is an appeal to this Court as of right, but in appeals by special leave ordinarily this Court does not undertake to reappreciate evidence. However, in a situation in which we are placed in this case, where the learned Sessions Judge rejects the entire prosecution evidence as unworthly of belief, and the High Court implicitly relies on almost the entire evidence, we could not escape the duty to examine the evidence for the purpose of ascertaining whether there has been any such error of law or fact as to vitiate the findings in the impugned judgment.
(3.) HERE is a case in which in all 28 accused were put up for trial and as many as 34 witnesses were examined, 6 of whom are alleged to have been injured at the scene of occurrence and in all probability in the course of occurrence. The High Court in one paragraph of the judgment (para 60) agrees with the trial Court that the evidence of prosecution witnesses Nos. 10, 12 and 13 so far as they implicate accused Nos. 8, 9, 10, 16 and 17 fails to inspire confidence but in para 62 their evidence is accepted as reliable on minor charges but in this background we would exclude their evidence from further consideration. Even then there are 27 accused who are before this Court and there is evidence of 31 witnesses which is to be examined. Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence as in this case is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction ridden society where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation as it unfolds in the case before us, the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti v. State of U. P. (1964) 8 SCR 133 : ( AIR 1965 SC 202), adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course.;