State of Bihar Vs. Pashupati Singh
& ANR & Vice Versa  INSC 173 (24 September 1973)
KHANNA, HANS RAJ
CITATION: 1973 AIR 2699 1974 SCR (1) 742 1974
SCC (3) 376
CITATOR INFO :
R 1974 SC 799 (15) F 1974 SC1039 (6,12) E&D
1989 SC1335 (60)
Criminal Law--Practice and procedure--Whether
identification chart should contain a complete statement.
The two deceased, husband and wife, along
with their daughter and servant were travelling by train. At a wayside station
the two appellants and another co-accused, still absconding, got into the
compartment armed with deadly weapons. The husband and wife were robbed and in
the scuffle that followed both were fatally injured. After the arrest of the,
accused they were identified by the daughter and the servant of the deceased.
The accused were convicted by the trial court for the offences under sections
394 and 302 I.P.C.
The High Court, holding inter alia, that in
the test identification chart there was no specific mention about the assault
by the first accused on one of the deceased, acquitted both the accused of the
offence under s. 302 I.P.C.
Dismissing the appeal of the appellants with
respect to the offence under s. 394 and allowing the appeal by the State with
respect to the offence under s. 3 02.
HELD : The use made by the judges of the High
Court of the test identification chart was faulty. The test identification
chart would not and could not be expected to contain a complete statement. The
two accused were identified by the two eye-witnesses and they both spoke of the
attack on one of the deceased by the second accused.
It could not however, be said that the first
accused did not cause injuries to anybody or that nobody caused any injury to
the other deceased. The High Court also did not find that the first accused did
not cause any injury to either of the deceased. [745E] If it was difficult to
say which injury was caused by which of the accused, the natural inference
would be that all the three accused caused one injury each on each of the
deceased. As the injury caused by the weapons in the hands of the two accused
were such as were enough to cause death, the two accused were equally guilty of
murder. The fact that they could not have started with the intention of
committing murder but only to commit robbery was not relevant. The injuries
were sufficient in the ordinary course of nature to cause death and, therefore,
the accused would be guilty of murder. [745 G-B] Considering the fact that
there had been a long interval between the date of the offence and dismissal of
the appeal and the mental agony undergone by the accused, the ends of justice
would be met if sentence of life imprisonment was award.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal Nos. 53 and 54 of 1970.
Appeals by special leave from the judgment
and order dated the 15th October, 1969 of the Patna High Court in Criminal
Appeals Nos. 150, 152 and 167 of 1969.
U. S. Prasad, S.K. Sinha, B. B. Sinha and D.
P. Mukerjea, for the appellant (in appeal 53/70) and respondent (in appeal
U. P. Singh, for the respondent (in appeal
53/70) and appellants, (in appeal 54/70).
743 The Judgment -of the Court was delivered
by ALAGIRISWAMI, J. The two appellants in Crl. A. N. 54 of 1970, were tried
before the Additional Sessions Judge of Bhagalpur for offences under ss. 302
and 394 of the Indian Penal Code and convicted by him for both the offences. On
a reference made by the Additional Sessions Judge for confirmation of the death
sentence awarded to them and two appeals filed by them, the High Court of Patna
upheld their conviction under s. 394 but acquitted them of the offence under
section 302. The accused as well as the State of Bihar have appealed to this.
Court, the former in respect of their conviction under S. 394 and the State
against their acquittal in respect of the offence under S. 302. The, facts
giving rise to these appeals are as follows :
Ram Prasad Mandal, a resident of Bhagalpur,
his wife Rukmini. and their daughter Pushpa Devi were returning from Vellore,
where the daughter under-went treatment. They were travelling from. Calcutta to
Bhagalpur by the Howrah Danapur Fast Passenger oil 6-4-1965. They were
accompanied by their servant Mohan Lal. (P.W.1). At Pirpainty railway station appellant
Pashupati Singh entered their compartment and when the train reached Ghogha
railway station appellant Sutali Rai and another accused, now absconding, got
into that compartment. The two appellants had Gupti in their hands. After some
time the absconding accused took out a Chura and asked Ram Prasad Mandal to
give him whatever he had. Appellant Pashupati Singh stood near Mohan Lal and
Sutali Rai near Rukmini Devi. Ram Prasad Mandal offered whatever he had but
tried to catch the hand of the absconding accused. Thereupon all the three
accused attacked Ram Prasad Mandal who fell down. Rukmini Devi asked them not
to assault and took out her churies from one hand and handed over to one of the
accused. Her necklace was snatched by one of the three accused and when she
tried to pull the alarm chain all the three assaulted her with the weapons in
their hands and she also fell down. Mohan Lal who tried to intervene was
assaulted with a Gupti by Pashupati Singh and relieved of his wrist watch and
rupees fifty or sixty, which he had. Pushpa Devi handed over her ornaments. The
miscreants thereafter pulled the chain and got out of the train. When the train
stopped, Fireman Abdul Aziz (P.W.8) came to the compartment and found Pushpa
crying and Ram Prasad Mandal and Rukmini Devi lying injured. The Guard (P.W.10)
also came, there. At the next railway station Sabour the Assistant Station
Master (P.W.5) advised them to go to Bhagalpur as there would be delay in
getting medical aid at Sabour. He also informed Bhagalpur railway station. The
train reached Bhagalpur at about 1.15 A.M. on 7-4-1965. P.W.10 handed over a
written memo, Ext.2, to the Officer-in-charge Railway Police, on the basis of
which the first information report was drawn up by P.W.12 at about 1.45 A.M. By
this time Ram Prasad Mandal was dead and Rukmini Devi was in a serious
condition. All of them were sent to the hospital where Rukmini Devi died at 6
A.M. Theappellant Sutali Rai surrendered on the 10th of May, 1965 while
Pashupati Singh was arrested on the, 11th of May.
1965. In the test indentification parade held
on the 24th of May, 1965 Mohan Lal and 744 Pushpa Devi identified both of them.
In due course a charge sheet was laid against both of them with the result
Pashupati Singh's defence was that he was
innocent, that the two .eye witnesses had opportunities to know him before the
occurrence .and that he had been shown to them before the identification
parade. Sutali Rai also alleged that he had been shown to the identifying
witnesses. We are satisfied that the conclusion arrived at by the courts below
If as alleged by Pashupati Singh, PWs I and 2
and they had properly identified the assailants, is based on a proper
appreciation of the evidence. We shall later deal with the question .as to the
offence of which the appellants were acquitted.
A number of suggestions, some of them even
contradictory of each other, and none of them in any way seriously affecting
the veracity of PWs I and 2, were put forward before the courts below as well
as before this Court. We find them all devoid of substance just as the courts
below found. If as alleged by Pashupati Singh, PWs I and 2 had known him
earlier there was hardly any need to show him to. them before the
identification parade. What is more, PWs 1 and 2, if they had known Pashupati
Singh earlier, would have informed the police, that they knew one, of the
assailants and could identify him though they did not know his name.
That was not the case here. There is no
motive either for PW I or PW 2 falsely implicating the appellants. Nothing
which can shake their credibility has been elicited in their cross-examination.
Very vague and wild suggestions were made ,about the possibility of Rain Prasad
Mandal having been murdered by his nephew Tarkeshwar Prasad; that there had
been an attempt on the life of Ram Prasad Mandal's son and the same person
might have been responsible for murdering Ram Prasad Mandal; that Ram Prasad
might have killed him on that account. There is no substance in any one of these
suggestions. It was also suggested that Mohan Lal was not in the compartment
when the occurrence took place, as Tarkeshwar Prasad who is -,aid to have sent
money through him to Calcutta was not examined and nobody else, spoke of his
leaving for Calcutta Some argument was even sought to be made on the basis of
the presence of only two holdalls and of the impossibility of Pushpa Devi
having sat on Mohan Lal's holdall. There can be no doubt that Mohan Lal was
present in the compartment at the time of the, occurrence. It was not even put
to Pushpa Devi in her cross-examination that Mohan Lal was not present. Nor was
such a suggestion put to Mohan Lal. We consider that the evidence clearly
establishes that it was the two appellants and the absconding accused who were
responsible for the robbery and the murders committed on the train.
We do not think it necessary to refer at
length to all the evidence 'in this case or all the points that were raised in
the course of the arguments as we do not consider that they in any way weaken
the findings of the courts below on the central point about -the robbery and
the murders and this Court does not normally re-appraise the evidence except in
cases of gross miscarriage of justice.
74 5 We now come to the appeal filed by the
State of Bihar against the acquittal of the two appellants of the charge of
murderWe are of opinion that the conclusion of the High Court on this point
cannot be accepted. The learned Judges of the High Court referred to the
injuries found on the two deceased and to the medical evidence that of the 3
injuries found on each of the two deceased one could have been caused by a
dagger while the other two could have been caused by a Gupti. According to the
prosecution evidence, the dagger injuries were given by the absconding accused
while the two other injuries were given by the two appellants. The learned
Judges thought that Pashupati Singh who was mounting guard on Mohan Lal would
not have gone away from him and assaulted Ram Prasad Mandal and Rukmini Devi.
They have also stated that in the test identification chart there is no mention
about specific assault by Sutali Rai on Rukmini Devi. They considered that when
the weapons were not produced and there was no description of the weapons given
it was difficult to hold that a particular injury was caused by the absconding
accused while the other injuries were caused by the two appellants. They were
of the opinion that it could not be inferred that the miscreants wanted to
commit murder while committing robbery, and that there was no intention or
common intention to commit murder. This was the reason which led them to hold
that the appellants were not guilty of the offence of murder. We are of opinion
that the use made by the learned Judges of the High Court of the test
identification chart is faulty. The test identification chart does not and
cannot be expected to contain a complete statement. It shows that P.W. 1
identified both the accused and he was robbed of his wrist watch and money. It
also mentions that he also stated that Sutali Rai attacked Ram Prasad Mandal
with Gupti. P.W. 2, Pushpa Devi, is said to have identified both the appellants
and stated that she saw Pashupati Singh attack and rob Mohan Lal of his watch
and that Sutali Rai attacked Ram Prasad Mandal with a Gupti. It will be seen
that the mention here is only about Sutali Rai attacking Ram Prasad Mandal with
Gupti. It cannot therefore be said nor do the learned Judges say, that
Pashupati Singh did not cause injuries to anybody and nobody caused any injury
to Rukmini Devi. We would have understood it if the learned Judges had stated
that Pashupati Singh did not cause any injury to either of the deceased. They
do not say so. We should also consider that if it was difficult to say which
injury was caused by which of the accused, the natural inference would be that
all the three accused caused one injujry each on each of the deceased. As the
injuries caused by the Guptis were such as were enough to cause death the two
appellants are equally guilty of murder.
746 The fact that they could not have started
out with the intention of committing murder but only with the intention of
committing robbery is neither here nor there. If they have caused injuries
which were sufficient in the ordinary course of nature to cause death there can
be no doubt that they would be guilty of murder. We would, therefore, hold
differing from the learned Judges of the High Court, that both the accused are
guilty of the offence of murder.
Considering the fact, however, that there has
been a long interval between the date of the offence and now and the appellants
having been under a sentence of death till they were acquitted by the High
Court they would have undergone a period of mental agony, we would consider
that the ends of justice would be met in the circumstances of this case if a
sentence of life imprisonment is awarded to the two appellants. The appeal by
the State is allowed to this extent and the appeal filed by the accused is
P.B.R. Cr. Appeal 53 of 1970 allowed.
Cr. Appeal 54 of 1970 dismissed.