Ram Asrey
Vs. State of Uttar
Pradesh [1993] INSC
265 (5 May 1993)
Singh
N.P. (J) Singh N.P. (J) Anand, A.S. (J)
CITATION:
1993 SCR (3) 582 1993 SCC Supl. (4) 218 JT 1993 (3) 470 1993 SCALE (2)789
ACT:
Indian
Penal Code : SS. 34, 302 304 Part-I--Injuries afflicted with Bankas--Accused
persons having different intentions--Appellant attributed with the role of
pressing down the victim/deceased before the other two accused per-
sons--Resulting in death--Convicted tinder Section 304 Part- I read with
Section 34 I.P. C.
HEAD NOTE:
The
appellant alongwith Radhey Shyam and Munni Lal were charged with the murder of Gokaran
Prasad on 24.11.1975 at about 5 PM. The Trial
Court on consideration of the evidence concluded that the prosecution has
failed to prove the case beyond reasonable doubts and acquitted the accused
persons.
On
appeal, the High Court appreciating the facts and circumstances of the case
convicted Munni Lal along with the appellant for an offence under Section 302
read with 34 I.P.C. and sentenced each of them to undergo rigorous imprisonment
for life. During the pendency of the appeal the main accused Radhey Shyam died.
This
appeal is against the High Court's Judgment under Section 379 of the code of
Criminal Procedure. Allowing the Appeal in part,
HELD :
1. The High Court has rightly pointed out that PW-6 was not connected with the
prosecution party in any manner and there was no reason for him to depose
falsely, claiming to be an eye-witness of the occurrence. As such, his evidence
can be taken into consideration. to corroborate the evidence of the informant
PW-1. (587-C)
2. The
occurrence took place at about 5 P.M. and the
first information report was lodged at 6.45 P.M. within two hours, the Police Station being at the distance of four
miles from the place of occurrence. In the first information report the same
version of the occurrence was disclosed, which has been stated in Court. Apart
from naming himself, PW-1 also named PW- 5 and PW- 582 6 as eye-witness of the
occurrence.
The
Investigating Officer reached the place of the occurrence at 9. P.M. the same
evening. In such a situation there does not appear to be any scope for
concoction of a false case to implicate the accused persons leaving out the
real culprits. PW-1 being the brother of the deceased, his going to the Court
of Tehsildar at Sitapur and returning to village with the deceased is most
natural. His evidence cannot he rejected merely on the ground that he happened
to be the brother of the victim. It has been repeatedly pointed out by this
Court that near relations will be the last persons to leave out the real
culprits and to implicate those who have not participated in the crime. Taking
all facts and circumstances into consideration, the prosecution has been able
to prove the case as disclosed in FIR against the accused persons. (587-E-G) 3.The
appellant was a school student and there was no reason on his part to share the
common intention of committing the murder of the victim. By merely pressing
down the victim before the other two accused persons, assaulted him, it cannot
be held that appellant had shared the common intention of causing the death of
the victim. In the facts and circumstances of the case it has to he held that
he shared only the common intention of culpable homicide not amounting to
murder. He can be attributed with the intention that the injuries, which were
being caused by the other two accused persons, were likely to cause the death
of the victim. (588-E-F)
4. The
conviction of the appellant under Section 302 read with 34 I.P.C. as well as
his sentence to imprisonment for life is set aside. He is convicted under
Section 304, Part- 1, read with Section 34 of the Penal Code sentenced to
undergo rigorous imprisonment for ten years. (588-G)
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 618 of 1985.
From
the Judgment and Order dated 17.5.1984 of the Allahabad High Court in Criminal
Appeal No. 564 of 1977.
R.L. Kohli,
and C.P. Lal for the Appellant.
S.P. Pandey
and A.S. Pundir for the Respondent.
The
Judgment of the Court was delivered by 584 N.P. SINGH, J. The appellant along
with Radhey Shayam and Munni Lal, was put on trial for an offence under Section
302 read with Section 34 of the Penal Code, for having committed the murder of Gokaran
Prasad on 24.11.1975 at about 5.00 P.M.
It is
the case of the prosecution that the deceased along with his brother, Parbhu Dayal
PW- 1, on 24.11.1975, had one to the Court of Tehsildar at Sitapur to attend
their case, which had been fixed for hearing. The case was, however, postponed.
In the evening they were returning to village.
On Sitapur Lucknow Road. at about 5.00 P.M. the three accused persons, all armed with Bankas,
emerged from the field of Rani Saheba and ran towards to deceased. PW- 1
started shouting for help. The deceased fell down on the brick stack. It is
said that the appellant Ram Asrey pressed down the deceased, while Radhey Shyam
and Munni Lal gave the blows with Bankas. The occurrence was witnessed by Parbhu
Dayal, PW- 1, Jagannath, PW-5, and Narain, PW-6. In respect of the motive for
the commission of the offence. it is said that two years prior to the
occurrence aforesaid, accused Radhey Shyam had erected a wall in front of the
house of the deceased, who resisted and did not allow the wall to be constructed.
For that Radhey Shyam was prosecuted and because of that he bore a grudge
against the deceased.
The
First Information Report was lodged by PW- 1 at about 6.45 P.M., in which he gave the details of the occurrence and
named PW-5 and PW-6 as the eyewitnesses of the occurrence. The Investigating
Officer visited the spot, made the inquest and sent the body for post mortem,
which was held the next day. During post mortem examination, the following
injuries were found "1. Incised wound 7 cms. x. 1 cm. x bone deep on the
right side of head 6 cms. above the right eye-brow.
2.
Lacerated wound 4 cms. x. 1.5 cms. x scalp deep in the mid-line of head 6 cms. above
the root of nose.
3.
Lacerated wound 4 cms. x 1.5 cms. x bone deep on the left side of head 3 cms. above
left eye-brow.
4.
Lacerated wound 4.5 cms. x 1 cm. x bone deep on the outer part of left eye-brow
extending down on the outer side of the outer angle. of left eye and below its
level.
585
5.
Incised wound 8 cms. x 3 cms. x scalp deep on the back of head ,on the left
side of middle line 5 cms. behind the left ear.
6.
Incised wound 11 cms. x 3 cms. x vertebrae bone deep 4 cms. below the right ear
and 2.5 cms. below left angle of left lower jaw at the level of the body of
third cervical vertebrae, underneath of injury oecsophagus. Thyroid cartilage
and neck vessels of both the sides out.
7.
Incised wound 2.5 cms. x.5 cm. x muscle deep over the front of 1st Pharyanx
region of right thumb.
8.
Incised wound 9 cms. x 2 cms. x muscle deep over the palmar aspect of left hand
starting from the web of left thumb and index finger going inner and upper side
towards the wrist." According to the doctor, who held the post mortem
examination, the incised wound might have been caused by weapon like Banka. He, however, pointed out that Banka had a sharp edge on one side and blunt on the other.
He stated "Injury No. 2, 3, 4 might be caused by some blunt weapon. Injury
No. 4 might be caused by some blunt side of the banka. As in my opinion blunt
part of the banka is about 1 cm. in width, injury No. 2 and 3 might be caused
by sharp fall on the heap of Bajri.
Injury
No. 2 and 3 might be caused by blunt part of bank a if its width was 1.4 cms."
In cross-examination he states "Injuries No. 2, 3 and 4 are likely to be
caused by lathi. There was a fraction of fractured bone below injury No. 2. The
injury No. 2 is likely to occur if heavy weight weapon is struck with
considerable force. The injury No. 3 might occur by fall on the Bajri.
If
anyone fall with face side in addition to injury Nos. 2 and 3 other abrasions
are likely to occur on the face." Again, in cross-examination about
injuries Nos. 2, 3 and 4, he has stated that they are likely to be caused with lathi
portion.
586
The Trial Court on consideration of the evidence came to the conclusion that
prosecution had failed to prove the case beyond reasonable doubt. On that
finding the accused persons were acquitted.
The
State Government filed an appeal against the judgment of acquittal. During the pendency
of the appeal, the main accused Radhey Shyam died. The High Court, however,
after referring to the different facts and circumstances of the case, recorded
a finding that the charge levelled against the two accused persons, namely, the
appellant and Munni Lal, had been proved beyond reasonable doubt. On that
finding the High Court convicted the appellant along with Munni Lal, for an
offence under Section 302 read with Section 34 of the Penal Code and sentenced
each of them to undergo rigorous imprisonment for life.
This appeal,
under Section 379 of the Criminal Procedure ('ode, has been filed on behalf of
Ram Asrey, the appellant.
We are
informed that Munni Lal has not preferred any appeal to this Court.
On
behalf of the appellant it was urged that the Trial Court had rightly
disbelieved the evidence of the three eye- witnesses PW-1. PW-5 and PW-6
because of the inherent improbabilities in their deposition and lack of
consistency and there was no occasion for the High Court while hearing the
appeal against acquittal to reverse the finding recorded about their
credibility. It was also pointed out that so far Jaoannath, PW-5, is concerned,
he has been disbelieved not only by the Trial Court but even by the High Court
saying that he has changed his statement from stage to stage, to make it
consistent with the statement of PW- 1.
The
High Court has observed in respect of PW-5 "We may, therefore, exclude his
testimony from consideration, not so much because he might not have been
present at the spot but because there are elements in his testimony which make
it unsafe to place reliatice on it having been once disbelieved by the Trial
Court. That is the true angle in which the evidence must be considered by this
Court when dealing with an appeal against acquittal." It was urged that
the same approach should have been adopted in respect of Narain PW-6, who
claimed to have accompanied PW-5, PW-6, has stated that he had clone that day
to the market of khairabad to get Salim Mistry for repairing his Chakki, but Salim
Mistry was not available and when he was returning to village he met PW-5 in
the market of Khairabad and both of them started for their village.
587 He
has further stated that at about 5 P.M. he saw the deceased and PW- Ion Sitapur-Lucknow Road. Then he claimed to have seen the accused persons
coming out from the field of Rani Saheba. According to him, this appellant held
down the deceased, while the other two accused persons Radhey Shyam and Munni Lal
struck the deceased with Bankas and caused his death. The High Court has
observed that if the testimony of PW-6 is examined in the light of surrounding
circumstances, then it is consistent with the version of PW- 1 and, as such,
the evidence of PW- 1 receives adequate corroboration. The High Court has
rightly pointed out that PW-6 was not connected with the prosecution party in
any manner and there was no reason for him to depose falsely, claiming to be an
eye-witness of the occurrence. As such, his evidence can be taken into
consideration to corroborate the evidence of the informant PW- 1.
On
behalf of the appellant, it was said about PW- 1 that on his own statement, he
lodged the First Information Report, on the basis of a report written by Lallu
Ram PW-8 at the spot, which he took to Police Station Khairabad. This aspect of
the matter has been dealt with in the judgment under appeal. We are in complete
agreement. That merely because PW- 1 lodged the First Information Report on
basis of a report prepared by PW-8, by itself shall not affect the prosecution
version. The matter would have been different.
if the
accused persons had shown some oblique motive on the part of PW-8, who is said
to have prepared the report. The occurrence took place at about 5.00 P.M. and
the First lnformation Report was lodged at 6.45 P.M. with in two hours, the
police station being at the distance of four miles from the place of
occurrence. In the First Information Report the same version of the occurrence
was disclosed, which has been stated in Court. Apart from naming himself, PW-1
also named PW-5 and PW-6 as eye- witnesses of the occurrence. The Investigating
Officer reached the place of occurrence at 9.00 P.M. the same evening. In such
a situation there does not appear to be any scope for concoction of a false
case to implicate the accused persons leaving out the real culprits. PW-1 being
the brother of the deceased, his going to the Court of Tehsildar at Sitapur and
returning to village with the deceased is most natural. His evidence cannot be
rejected merely on the ground that he happened to be the brother of the victim.
It has been repeatedly pointed out by this Court that near relations will be
the last persons to leave out the real culprits and to implicate those who have
not participated in the crime. Taking all facts and circumstances into consideration.
we are of the view that prosecution has been able to prove the case as
disclosed in the First Information Report against the accused persons and there
is no reason to reject the same.
The
next question which has to be examined is as to whether so far the 588
appellant is concerned who, according to the prosecution case itself, has not
given any Banka blow to the victim, but is said to have pressed down the
deceased, before the other two accused persons Radhey Shyam and Munni Lal had
given the blows, should have been held guilty for an offence under Section 302
read with Section 34 of the Penal Code. It was pointed out that the appellant
was a school student and there was no reason on his part to share the common
intention of committing the murder of the victim. In this connection, reference
was made to the injuries found on the person of the victim during the post
mortem examination. It was pointed out that the injuries were not consistent
with the prosecution case that the other two accused persons caused those
injuries with Bankas. About injuries Nos. 2, 3 and 4 the Doctor, who held the
post mortem examination, has clearly stated that they must have been caused by
some blunt weapon. In respect of injury No. 4, he has said that it might have
been caused by the blunt side of the Banka. This itself shows that amongst the
two participants in tile occurrence. They had different intentions. One out of
the two assailants i.e. Radhey Shyam and Munni Lal had used the back side of
the Banka. If one of the two assailants had
used the back side of the Banka, then from this conduct it can be reasonably
inferred that such assailant had not the intention to cause the death of the
victim, otherwise there was no reason to use the back side of the Banka,
instead of sharp side which in normal course could have caused the death of the
victim. However, so far the present appeal is concerned, we are not concerned
with either of the two other accused persons. But this circumstance can be
taken into consideration for judging the role played by the appellant.
According,
to us, by merely pressing down the victim before the other two accused persons
assaulted him, it cannot be held that appellant had shared the common intention
of causing the death of the victim. In the facts and circum- stances of the
case, of course, it has to be held that he shared only the common intention of
culpable homicide not amounting to murder. He can be attributed with the
intention that the injuries, which were being caused by the other two accused
persons, were likely to cause the death of the victim.
Accordingly,
we set aside the conviction of the appellant under Section 302 read with
Section 34, as well as his sentence to imprisonment for life. He is convicted
under Section 304, Part 1, read with Section 34 of the Penal Code and sentenced
to undergo rigorous imprisonment for ten years. The appeal is accordingly
allowed in part to the extent indicated above.
S.K.
Appeal Partly allowed.
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