State of M.P. vs Bhagwan Singh and Others

This Judgment has been overruled by : Bhagwan Singh and Others Vs. State of M.P., AIR 2003 SC 1088 : (2003) CriLJ 1262 : (2003) 3 JT 599 : (2003) 1 SCALE 407 : (2003) 3 SCC 21 : (2003) 1 SCR 506 : (2003) AIRSCW 617 : (2003) 1 Supreme 698

R.B. Dixit, J.

"We all go through life", remarked the author of "Alpha and Omega", after observing the thinking patterns of different types of people, bearing spectacles coloured with our own taste and calling. Similarly, here in the present case, according to the prosecution, main accused Bhagwan Singh, neighbour of deceased Mata Prasad wanted to eliminate his rival, as he had filed a civil suit against him and for which purpose, he went to the extent of hiring the services of co-accused Sultan Singh, Laxman and others.

It is further alleged that on 28th February, 1984, all the accused persons in furtherance of their conspiracy assembled on the well of accused Bhagwan Singh situated on the outskirts of the village and jointly consumed liquor there. Thereafter, at midnight, they arrived in the house of Bhagwan Singh and after scaling the roof of house, entered in the house of deceased Mata Prasad, where they found deceased Mata Prasad sleeping in the Courtyard. Accused Munna (since absconding), removed the quilt from the body deceased and accused Rhagwan Singh placed a wet cloth on his mouth which contained some poisonous smell. Accused Laxman and Munna caught his legs and accused Pooran Singh (now dead), opened the door giving entry to another accused Sultan Singh who was keeping a vigil outside the house. Therefore, accused Munna pressed the mouth of deceased and Bhagwan Singh and Poorancaught hold his legs then Bhagwan Singh repeatedly assaulted with fists on the testicles of deceased with the result, he died. They then hanged the deceased in a room of the house with a rope tied around his neck.

When the accused persons were corning out of the room, they were suddenly encountered by Munni Devi, daughter of the deceased, who was sleeping in another room. When Munni Devi told Bhagwan Singh and Laxman as to what they have done, thereupon, accused Bhagwan Singh and accused Munna also assaulted her. It seems that Munni Devi died because of throttling and then she was set to fire by Bhagwan Singh, Sultan Singh and Laxman.

In early morning, when neighbours were informed by one Agyaram about the incident, Kanhaiyalal (P.W. 2), brother-in-law of deceased, was called who lodged First Information Report (Ex, P-2), at Police Station, Daboh. Policy Agency immediately swung into action and prepared Panchnama of the dead body of Mata Prasad (Ex. P-5) and Munni Devi (Ex. P-6). Spot Map (Ex. P-3), was drawn and broken tiles from the house of deceased, towards the house of accused Bhagwan Singh were found. Panchnama (Ex. P-9), to that effect was also prepared.

Dead bodies were referred for post-mortem and Dr. S.C. Bansal (P.W. 11), who performed autopsy, on the dead body of Mata Prasad found as follows:--

(i) Multiple punctured wounds present over the scrotum. Average size of the wound is 1/6" x 1/6" x 1/2", blood clot. Caused by penetrating object;

(ii) Abrasion (3 in number), elcptical in shape present over the posterior aspect of middle 1/3rd of right upper arm exterior surface of 1/3rd right forearm;

(iii) Flexer surface of redict aspect of upper l/3rd of left forearm, average size of abrasion 2-2 1/2" x 1";

(iv) Teeth bite marks arc seen;

(v) Ligature mark (12" x 3/4") seen over upper 1/3rd of neck encircling the neck. On cut section of neck, blood clots found in the s/c tissue with the fracture of odentoid process of IInd cervical vertebrae. (vi) Destruction of the ring of the tracher. Both lungs congested. Liver, spleen, kidneys congested.

The death is due to asphyxia resulted from the throttling. The death is homicidal in nature and within 6 to 36 hours from the time of post-mortem.

Dr. S.C. Bansal had also conducted autopsy on the dead body of deceased Munni Devi and found as follows :--

(i) Contusion on the frond of the neck over the thyroid. Thumb marks seen on right side of finger marks seen on left side;

(ii) Burn of IInd and IIIrd degrceon the face, head, thorex (Ant & Post) abdomen (Ant & Post), both upper arm and right forearm left thigh upto the knee joint, right thigh and in private parts. Both hands and wrists are escaped. Hair of scalp are burnt. Kerosene oil smell is coming from the body. There is no line of redness, blister present on the chest. Entertaining air. No reperative process and skin dry and blackish;

(iii) Extravagation of blood is seen behind the injury in neck of thyroid bone seen. Lyrnx and trachers congested. No carbon particles found deposited in trachers.

(iv) Both lungs congested patched hacmoful. Stomach contained food articles;

(v) Small intestine contained digested food material. Liver, spleen, kidney congested;

Cause of death is asphyxia resulted from the injury in the neck (hanging). Mode of death is homicidal and duration of death from the post-mortem is 6 to 36 hours.

Accused persons were apprehended and on the basis of information given by accused Bhagwan Das empty bottles of liquor and bichhua was recovered from him. Similarly, a silver chain was recovered from accused Laxman Singh, a pair of silver paizeb from accused Pooran Singh and a book together with spectacles of deceased Mata Prasad, was recovered from accused Sultan Singh. Confessional statement of Pooran Singh was got recorded by D.K. Paliwal, Judicial Magistrate, 1st Class.

The defence of accused person was one of the complete denial claiming false implication.

Learned Trial Court after recording prosecution evidence and examining the accused person u/s 313 of Cr.PC, came to the conclusion that only evidence of eye-witness Arvind Kumar (P.W. 19), who is a child of about 6 years, is not at all reliable. The evidence of extra judicial confession as well as of judicial officer, was also not found reliable and consequently, learned Special Judge, Bhind, vide his judgment dated 6-9-1985, passed in Special Sessions Trial No. 85/84, acquitted the accused person of the charge u/s 302 read with Sections 34, 396, 460 and 404 of IPC and Sections 11 and 13 of M.P. (Dacoity Vihavaran Prabhavit Kshetra) Adhiniyam, 1981, against which, present appeal has been filed on behalf of State.

Learned Govt. Advocate appearing for the appellant State has submitted before us that learned Trial Court had utterly failed to appreciate evidence of child witness and had assigned reasons for disbelieving other evidence on record, which are against the rule of law. However, learned Counsel for the respondents accused had tried to justify the conclusions arrived at by the learned Trial Court.

We have heard submissions advanced on behalf of the learned Counsel for the parties and have carefully perused the record.

Dharamdhwaj Kumar Paliwal (P.W. 1), Judicial Magistrate, 1st Class, Lahar, has recorded confessional statement u/s 164 of Cr.PC (Ex. P-1) of accused Pooran Singh on 9-4-1984. He has admitted that accused Pooran Singh was first time produced before him on 9-4-1984 from Police custody. Before recording his statement, he was warned that the statement may be used against him and his statement was recorded after giving him 20 minutes time for making up his mind. It is only after ensuring that the statement is being voluntarily made, his statement was recorded.

Pooran Singh had retracted aforesaid confession during trial, although in his examination recorded u/s 313 of Cr.PC. He has not assigned any reason for retracting confession. However, in separately typed and prepared statement, it is alleged that the aforesaid confessional statement is the result of police torture. Learned Trial Court has disbelieved the confessional statement on the ground that the statement has not been recorded in proper format and that no sufficient time was allowed to accused before recording his statement. No attempt was made to keep him away from police influence and in such circumstances, the statement cannot be deemed to be voluntarily made. That apart, it is further contended that said statement can be used only against its maker and not against other co-accused persons.

On perusal of confessional statement, it would appear that before recording statement all the police officials, were kept out of the Court premises and then the accused was asked whether, he is willing to make confession voluntarily and without any pressure and memorandum to this effect has also been appended in the end of statement. The statement runs into five paragraphs in two pages which depicts entire incident in sufficient details. In the circumstances, we find it difficult to agree with learned Trial Court that the statement is not voluntarily made. Although, learned Govt. Advocate relying upon the decision of Apex Court rendered in the case of S. Nalini and Ors. v. State by D.S.P., C.B.I., SIT, Chennai, reported in 1999 SCC (Cr.) 691, has argued that the confession made by an accused is admissible as against co-accused also. However, this being a case under TADA Act, is not applicable in facts and circumstances of the present case.

The Hon''ble Supreme Court in the case of Dagdu and Ors. etc. v. State of Maharashtra, reported in AIR 1977 SC 1579, has observed that the failure to comply with Section 164(3) of Cr.PC or with the High Court Circulars will not render the confession inadmissible in evidence. If a confession does not violate any one of the conditions operative under Sections 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding making of confession, appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence.

It has also been made clear by the Apex Court in the case of Surjan Singh and Anr. v. State of Haryana, reported in (1998) 2 SCC 301, that u/s 30 of the Evidence Act, 1872, a confession of an accused is relevant and admissible against a co-accused if both are jointly facing trial for the same offence.

In the case of Haroon Haji Abdulla Vs. State of Maharashtra, , where in a joint trial, co-accused who had made confessional statement, died during trial, it was observed that the law as to accomplice evidence is well settled, The Evidence Act in Section 133, provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because, it proceeds upon the uncorroborated testimony of an accomplice. To this there is a rider in illustration (b) to Section 14 of the Act, which provides that the Court may presume that accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because, an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which arc true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that Courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however, small, each accused named by the accomplice. In this way, the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated.

Where the Magistrate, had started recording confession within a short time after accused was produced before him, the Hon''ble Apex Court in the case of Ammine and Others Vs. State of Kerala, expressed a view that merely because, confession was recorded within a short time, after accused was produced before him, it could not be inferred that the confession was not voluntarily made. Confession retracted four days after the accused was released on bail. No such complaint made while he was in judicial custody for about a fortnight, merely because the accused while retracting the confession and during his examination u/s 313, Cr.PC alleged that he made the confession under pressure and force from the police, it cannot be concluded that the confession was not voluntarily made and in the circumstances, it was held that the Trial Court was not justified in considering length of confession as a suspicious circumstance because, accused was clearly warned that his confession was likely to be used against him.

In case of Lokeman Shah and Anr. v. Slate of West Bengal, reported in 2001 AIR SCW 1646, the Hon''ble Supreme Court while holding that confessional statement by accused can be used by Court for drawing inference as to whether, confessor shared common object that other members of unlawful assembly and the evidence on record showing that accused joined unlawful assembly knowing well that it had become unlawful as its common object was to finish prey whom they were chasing, observed that it is within the radius of permissibility that Court can rely on a factual presumption for the purpose of reaching one conclusion. Thus, the confessional statement, if admissible and reliable, and can be used by the Court for drawing inference as to whether the confessor shared the common object with the rest of the members of the unlawful assembly. For that purpose, the Court will take into account other materials available in evidence. It cannot be said that the Court cannot proceed from the confession even a wee bit for the purpose of knowing whether, the confessor had entertained any particular intention while perpetrating the acts admitted by him in his confession.

Now so far as confession of co-accused Pooran Singh is concerned, he has categorically mentioned that main co-accused Bhagwan Singh had contacted him and told him that his neighbour deceased Mata Prasad is not allowing him to open a door and therefore, required to be removed from his path. He further revealed that Bhagwan Singh for that purpose, had already contacted Laxman and Sultan of Mungawali and one person of Khurja (who is absconded co-accused Munna) and further sought his help for this end in view. In the beginning, last Tuesday was fixed for the work, however, that Tuesday was missed and on 28th February, they all assembled at the well of Bhagwan Singh situated at the outskirts of village and thereafter, they consumed liquor jointly and then at the dead of night, secretly entered the house of Mata Prasad.

Pooran Singh in his confessional statement further made it clear that Sultan Singh was posted outside the gate of deceased Mala Prasad for keeping a vigil on any outsider and Bhagwan Singh took a poisonous wet cloth with him and accused Laxman fixed a ladder adjoining to the house of deceased Mata Prasad. From this, ladder he alongwith Bhagwan Singh, Laxman Singh and Munna crossed over to the roof of the deceased Mata Prasad. Mata Prasad was lying on cot in the courtyard. Accused Munna pulled out quilt and Bhagwan Singh placed poisonous wet cloth on his mouth. Meanwhile, chain of gate was unbolted and Sultan was allowed to come in. Thereafter, all the accused persons caught hold of Mata Prasad and Bhagwan Singh assaulted him with fists on his testicles resulting into his death. Bhagwan Singh then placed a rope around his neck and with the help of Laxman and Munna, hanged him in a hook of roof.

It is further stated in the confessional statement of Pooran Singh that before accused persons could come out of the door, the daughter of Mata Prasad arrived there and told Bhagwan Singh and Laxman that as to what they have done, thereupon, she was surrounded and assaulted by Bhagwan Singh, Laxman and Munna. It seems that at this stage, Pooran Singh slipped out of the gate and therefore, fact of Munni Devi being burnt, by remaining accused person does not find place in his confessional statement. This confessional statement in our opinion, being inculpatory is reliable and admissible in evidence, in so far as other accused persons are concerned.

Arvind Kumar (P. W. 19), child witness of about six years of age, and son of deceased Munni Devi, has stated that he was sleeping with his younger brother Manoj while still young Vinod was sleeping with his mother. His maternal grand-father deceased Mata Prasad was sleeping in entrance room of the house. After hearing hue and cry of Mata Prasad, his mother deceased Munni Devi rushed towards him and he also followed his mother, at a distance. Accused Bhagwan Singh and Sultan Singh, caught hold his mother from the legs and accused Laxman after pouring kerosene oil, set her on fire. There were in all five assailants, however, he could identify only Bhagwan Singh, Sultan Singh and Laxman. He has further stated that he was so horrified by ghasty scene that he came back and laid himself in separate room and fell asleep. When he awoke, at about 4.30 in the morning, his maternal uncle Agyaram took him to Alampur.

Agyaram has not been examined in the Court. Another witness Dinanath (P.W. 17), who was informed about incident by Mantola (P.W. 2), confirmed that all the three children of deceased Munni Devi had accompanied Agyaram, to Alampur. Kanhaiyalal (P.W. 2), who was subsequently informed by Bhagwan Das and Dinanath about incident had also visited spot so''on after the occurrence and had found all ihe three children of deceased Munni Devi lying on a cot in front room of the house.

Radheshyam (P.W. 20), is husband of deceased Munni Devi, who was informed at Alampur by Agyaram about incident and who had also brought his three children with him. Leaving his children at Alampur, he immediately rushed to Murawali, where the police had also arrived and was investigating offence. On the same day in the evening, he was informed by Kalka and Kamlesh that on 28th February, 1984, the fact, disclosed by Bhagwan Singh to the effect that they have finally disposed of his enemy. Out of them, Pooran, Bhagwan Singh, Sultan Singh and Laxman were identified by them. The witness has further stated that some silver ornaments of his wife and Vishram Sagar, a book and a showcase together with account book of his father-in-law were missing.

It has been argued for the respondent accused person that child witness Arvind was not taken immediately to police by his father Radheshyam and it is further surprising that Radheshyam had asked no details about the incident from any of his children. He has no knowledge as to when the police had recorded statement of Arvind Kumar. It means that Arvind Kumar was not present on the spot, however, in our opinion, Arvind Kumar aged about six years, is the eldest child of deceased Munni Devi who could depose something about the incident. Rest of his younger brothers are too small to know about the incident and consequently, they were fast asleep at the time of incident. It usually expected that the small children will accompany their mother when the mother is away from her husband and had gone to join her father deceased Mata Prasad. The witnesses who had visited the spot soon after occurrence also confirmed the presence of children on the spot. In so far as the children not being interrogated immediately by their father, is due to the fact that the father was so much perturbed at the news of the incident and immediately rushed to the spot and was helping police investigation there. It is further to be noticed that he was also required to take care of the dead bodies to be sent for post-mortem and then to arrange for their funeral. All this made him so busy that it is not expected from him to divert his attention towards interrogating children who had been hurriedly left at his residence in village Alampur.

It is to be noticed that the children were found sleeping by the witnesses who had reached the spot in the early morning and in the circumstances, everybody thought that they may not be in knowledge of the incident. It is a matter of common knowledge that children are always kept apart from the dead body when they loose their mother in such an early age. In the circumstances, there is nothing surprising if the children were kept away from the scene and were not immediately interrogated by the witnesses or the police. Similarly, when the father of children was busy with funeral etc. of dead bodies, he is not expected to know as to when one of the child was interrogated by police. In such a situation, in our opinion, the evidence of child witness Arvind Kumar cannot be disbelieved on this ground alone. After going through the evidence of the child witness Arvind Kumar, we are of the opinion that his conduct and demeanor during his examination in the Court, is quite natural and relevant. His evidence in the circumstances was not appreciated by learned Trial Court in proper perspective which further finds support in material particulars from the confessional statement of co-accused Pooran Singh.

Learned Counsel for the respondents accused persons has further contended that accused persons were not known to the child witness nor any identification parade was arranged for this purpose. In the circumstances, dock identification in the Court is not sufficient. However, we are of the opinion that the child witness was not cross-examined at all by the defence on the point of identification as to whether, the accused persons are previously known to him or not. Sincc, it is not disputed that accused Bhagwan Singh is a next door neighbour of deceased Mata Prasad. Similarly, accused Sultan Singh and Laxman also belong to same village Le., Murawali. In such a situation, it is to be presumed that these accused persons are previously known to child witness and as such, there is nothing wrong in their dock identification by the witness in the Court room. These accused persons have also been named by this child witness in his police case diary statement (Ex. D-4) and no cross-examination has been made of the witness regarding his mentioning names of accused persons in his police case diary statement. Although, the fact of deceased Munni Dcvi being set to fire has not been mentioned in his police case diary statement, however, it has been clearly mentioned that her mouth was gauged by Bhagwan Singh and Laxman and Sultan Singh were assaulting her. He being a child witness, such minor discrepancies in his statement arc but natural and in the circumstances, his statement clearly inspires confidence regarding involvement of the accused persons in the crime.

In case of Suresh Vs. State of U.P., the sole eye-witnesses was a five year old son of deceased and he was believed by the Court as there were unimpeachable and the most eloquent matters on the record which lend an unfailing assurance that the child was a witness of truth, not a witness of imagination as most children of that age generally are.

Regarding child witnesses, Hon''ble Apex Court in the case of Dattu Rammo Sakhare and Ors. v. State of Maharashtra, reported in 1997 SCC (Cr.) 685, has expressed the view that a child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. In other words, even in the absence of oath the evidence of a child witness can be considered u/s 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof, would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the Court always finds it desirable to have to corroboration to such evidence from other dependable evidence on record.

Learned Counsel for the respondents has submitted that the child witness in this case, has failed to identify two out of five accused persons and therefore, he is not at all reliable. Strong reliance has been placed on a Division Bench decision of Patna High Court in case of Ram Bilash Singh and Anr. v. State of Bihar, reported in 1999 Cr.LJ 2360. However, in our opinion, in that case, different answers were given by child witness as to identity of co-accused person. However, in the present case, no such discrepancy or contradiction, is found in the testimony of child witness, Arvind Kumar.

Hon''ble Supreme Court in case of Suryanarayan v. State of Kar-nataka, reported in 2001 AIR SCW, after taking into consideration implications arising under the various decisions in the case of State of U.P. v. Ashok Dixit, reported in AIR SCW 548, Panchhi Vs. State of U.P., reported in AIR SCW 2777, Dattu Ramarao Sakhre (supra), Rajaram Yadav v. State of Bihar, reported in AIR SCW 1882, Baby Kandyanathi v. State of Kerala, reported in 1993 AIR SCW 2192 and Prakash Vs. State of M.P., reported in 1992 AIR SCW 2582, has held that the evidence of child witness must be evaluated more carefully and with greater circumspection because, child is susceptible to be swayed by what others tell him and thus, an easy prey to tutoring. The evidence of the child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law. However, where child witness to occurrence aged 4 years, making statement that accused had inflicted fatal blows on body of deceased with knife when she had gone with deceased to lake to wash clothes and standing test of cross-examination, mere fact that words spoken to by child witness were not in language which child witness knew, is not a ground to reject her testimony.

Now so far as evidence of child witness in the present case is concerned, learned Trial Court has disbelieved him mainly on the ground that his conduct in not raising alarm when he found his mother being surrounded by and assaulted by accused person, is in our opinion against the record and also against child psychology. Child witness on this point has categorically stated that he had followed her mother from a distance and then perhaps after seeing her mother being surrounded by assailants out of fear, retreated and lie down on the cot and had seen her mother being set to fire. He has not been cross-examined on the point whether, the place of occurrence is not visible from the place where he was lying. A child of this maturity attains sufficient understanding regarding risk of raising alarm on the cost of his life. In such a situation, conduct of child witness was in no way unnatural. Child was not aware of the consequences as to what had happened to his mother, subsequently, fell in sleep alongwith his younger brother and was awaken by the witnesses who arrived on the spot in the morning. Evidence of this child witness is further corroborated by confessional statement of co-accused Pooran Singh and medical evidence of post-mortem report of dead bodies.

Then there is certified copy of order-sheet dated 20-10-83, of Addl. Civil Judge, Class II, Lahar passed in Civil Suit No. 566-A/83, wherein, a temporary injunction in favour of deceased Mata Prasad and against accused Bhagwan Singh has been passed restraining him from opening his gate, window and drainage towards the disputed land of the deceased. This seems to be a motive behind murder of deceased Mata Prasad, as has also been reflected from the confessional statement of accused Pooran Singh.

Lal Singh (P.W. 5), has stated that at about 8 o''clock in the night, on the date of incident, Vishram Sagar a religious book was recited by Ramesh-war Dayal (P.W. 7), at the door of deceased Mata Prasad, This book of Vishram Sagar was kept at the stone placed over Almirah. Sarpanch Matadin (P.W. 6), had conducted identification of seized silver Bichhua and Payal vide seizure memo Ex. P-10, which were identified by Dobalia of Alampur. Bahadur Singh (P.W. 8), had testified that accused Bhagwan Singh and Sultan Singh were playing cards with them up to 10 o''clock in the night and then they dispersed.

Although learned Trial Court has disbelieved the evidence of recovery of some of articles from accused person as it''s witness Munnalal (P.W. 13), Halim Khan (P.W. 23) and Harpal (P.W. 14), have turned hostile. However, Bhagwan Das (P.W. 16), who was first to reach on the spot alongwith Mantola and Dinanath has also confirmed the enmity of deceased Mata Prasad with accused Bhagwan Singh over the dispute of opening a door of which, a civil suit was going on. The police had also recovered before him the silver Bichhua and a bottle of glass from accused Bhagwan Singh vide memo Exs. P-13-A and C. Similarly, a pair of silver Payal was recovered from Laxman. A book of Vishram Sagar, a Hindi calendar and spectacles were also recovered from Sultan Singh vide seizure Ex. P-15-A. His evidence further finds support from statement of investigating officer R.C. Parashar (P.W. 24) and witnesses of seizure Madan Mohan (P.W. 25) and Chhotelal (P.W. 26). The investigating officer had also seized broken tiles from the roof of accused Bhagwan Singh. Learned Trial Court has disbelieved all this evidence on one or the other technical grounds which in our opinion, is not justified in view of their corroborating evidence to the evidence of child witness.

Although, still there is evidence of Kalka Prasad (P.W. 10), Kamlesh (P.W. 12) and Ramsewak (P.W. 18) regarding extra-judicial confession of the accused person however, the learned Trial Court has rightly disbelieved this part of the evidence in view of their contradictory statements. Further, in our opinion, if this part of the evidence is disbelieved, there is no reason why the other part of the evidence could not be relied upon which connects accused person with commission of crime. In the circumstances, in our opinion, although, intention to commit dacoity is not proved against accused person, but offence of lurking house trespass as well as murder of Mata Prasad and Munni Devi punishable under Sections 460 and 302 read with Section 34 of IPC, is found well proved against accused respondents.

Learned Counsel for the respondents relying upon the decisions of the Apex Court in case of Ramesh Babu Lal Doshi v. State of Gujrat, reported in 1998 SCC (Cr.) 972, Thanedar Singh v. State of M.P., reported in 2002 SCC (Cr.) 153, and Kashiram v. State of M.P., reported in 2002 SCC (Cr.) 68 has laid stress on the point that where two views are reasonably possible, one supporting acquittal and other regarding conviction. High Court would not interfere merely because, it feels that sitting as a Trial Court, its view would have been one of recording conviction. However, in our opinion, complete guidelines in this respect find place in a decision of Apex Court in the case of Narinder Singh v. State of Punjab, reported in 2000 AIR SCW 2313, wherein, it has been indicated that the High Court while considering the appeal against acquittal, is not exercising any extra-ordinary jurisdiction. Its power to consider and decide the appeal against judgment of acquittal is same as against the judgment of conviction. However, there are certain guidelines. One is that if there are two views on evidence, which are reasonably possible, one supporting acquittal and the other indicating conviction, High Court in an appeal against judgment of acquittal should not interfere merely because it feels that it would as a Trial Court have taken a different view. High Court will certainly interfere if it finds that the judgment of acquittal is manifestly erroneous and that the Trial Court has acted with material irregularity or its appreciation of evidence lacks coherence or it has made assumptions which are unwarranted or its evaluation of evidence is such, as to shock the sense of justice and which has led to miscarriage of justice or its reasoning is intelligible or defies logic or its conclusions are against the weight of the evidence.

In so far as present case is concerned, as has been indicated hcreinabove, the learned Trial Court seriously fell in error in not appreciating evidence of child witness properly and has also failed to take into consideration other separate and relevant material evidence available on record. In the circumstances, in our opinion, learned Trial Court has acted with material irregularity and its appreciation of evidence lacks coherence and it has made wrong assumptions which are unwarranted regarding evaluation of evidence of Judicial Magistrate, 1st Class, who had recorded confessional statement of co-accused Pooran singh and also evidence of investigating officer, which cannot be disbelieved merely because, he is a Police Officer.

For the reasons stated hereinabove, this appeal is allowed and the acquittal of accused respondents is hereby set aside. Respondents accused Bhagwan Singh, Sultan Singh and Laxman are held guilty of offence punishable under Sections 460 and 302 read with Section 34 of IPC and each offence sentenced to the sentence of imprisonment for life and fine of Rs. 10,000/- each. In default, they shall further suffer RI for a period of one year. Jail sentence is to run concurrently. They are directed to surrender before CJM, Bhind to serve out sentence passed against them within a period of fortnight from the date of this order, or else, necessary steps be taken to cancel their bail bonds and issuance of warrants of arrest.