Shri Jagannath
& Ors Vs. State of Uttar
Pradesh [1995] INSC
40 (12 January 1995)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Anand, A.S. (J) M.K. Mukherjee, J.:
CITATION:
1995 AIR 712 1995 SCC Supl. (1) 564 JT 1995 (1) 553 1995 SCALE (1)173
ACT:
HEAD NOTE:
1.
This appeal by special leave is directed against the judgment of the Allahabad
High Court dismissing the appeal preferred by the three appellants herein and
one Badri Narain (since dead) challenging the conviction and sentence recorded
against them under Section 302/34 and 323/34 of the Indian Penal Code
(hereinafter referred to as the 'IPC' by the Additional Sessions judge Gonda.
2.The
story as put forth by the prosecution was that on June 7,1978 at or about 900
A.M. a heated alteration took place between Shyam Narain (the deceased) and his
brother Narain Dutt on the one hand and Badri Narain and his son Swami Nath
(since acquitted) on the other, over dismantling of the mend which divided
their respective agricultural plots. At that time Badri Narain was holding a
spear and Swami Nath a kudal with him. While the altercation was going on,the
three appellants reached there armed with lathis. In course of the altercation
when Swami Nath attempted to attack Shyam Narain with kudal the latter and Narain
Dutt tried to run away towards the village but could not succeed as the five
accused persons, including the appellants, surrounded them and started
assaulting Shyam Narain with their respective weapons. On hearing the shouts of
Shyam Narain and Narain Dutt when their brother Swami Dayal and his son Ramashish
reached there,the three appellants also assaulted them with lathis. As a result
of the beating when Shyam Narain dropped down dead, the accused persons ran
away. Swami Dayal then went to the police station and logged an FIR whereupon a
case was registered,which ended in a chargesheet against all the five accused
persons.
3.To
bring home the charges levelled against them the prosecution rested its case
555 primarily upon the ocular version of the incident as given out by Swami Dayal
(P.W.1), Jamil Khan (P.W.2) and Narain Dutt (P.W.3). The learned trial judge,
found that the claim of Jamil Khan and Narain Dutt that they were present at
the time of the incident and, for that matter, had witnessed the same was wholly
untenable and therefore left their evidence out of consideration. As regards,
Swami Dayal (P.W. 1) the learned judge observed that find of injury on his
person, as testified by the doctor (P.W.5) and his prompt lodging of the F.I.R.
lent sufficient corroboration to his testimony to form the basis of conviction.
It having, however, appeared to the learned judge that Swami Nath was roped in
because he was the son of Badri Narain though he did not participate in the
assault he acquitted Swami Nath while recording the order of conviction and
sentences against the appellants and Badri Narain. The High Court concurred
with all the findings recorded by the learned trial judge and dismissed the
appeal.
4. In
view of the concurrent findings of fact we would not have, ordinarily, been
justified to disturb the same but then on perusal of the impugned judgments, we
find that both the earned Courts below failed to consider that Swami Dayal did
not state in the F.I.R. that the three appellant had assaulted the deceased
with lathis. This aspect of the matter assumes importance for,it appears that
in concluding that the three appellant shared the common intention of
committing the murder of Shyam Narain with Badri Narain and for that matter,
convicting them under Section 302 with the aid of Section 34 I.P.C.- while
convicting Badri Narain under Section 302 I.P.C. simplicited the trial court
was much influenced by the fact that the three appellants assaulted Shyam Narain
with lathis while Badri Narain assaulted him spear resulting in his death,
5.
From the testimony of Swami Dayal (P.W. 1.) we get that on the fateful morning
when he was going towards their plot along with his son Ramashish he saw
accused Swami Nath and Badri Narain having heated arguments with his brothers Shyam
Narain Dutt regarding the dismantling of the mend. At that time he found Badri Narain
holding a spear and Swami Narain a Kudal but his brothers unarmed. While they
were on the plot and the arguments were going on the other three accused (the
three appellants herein) reached there with lathis.
All of
them then started abusing Shyam Narain and Narain Dutt. In the mean time Swami Nath
attacked Shyam Narain with Kudal but as he retreated it did not hit him. Then,
as Shyam Narain and Narain Dutt tried to flee towards the village, all the
accused person attacked Narain Dutt.
According
to P.W 1, Badri Narain assaulted him with spear and the three appellants with
the lathis. He next spoke about the assault on him and his son by the three
appellants and Badri Narain. In the F.I.R.,however, the only role that was
ascribed by P.W. 1 to the three appellants relating to the attack on Shyam Narain
was that when he had ran towards the village they had also chased him along
with the other two accused and surrounded him. To put it negatively, in the
F.I.R. he did not state that the appellants had also assaulted the deceased
much less with lathis.
6. As
already stated in relying upon the sole testimony of P.W.1 both the learned
courts below took into consider- 556 ation the fact that his testimony stood
corroborated by the F.I.R. which he lodged with utmost dispatch. In that
context it was expected, in the fitness of things, that if really the
appellants had assaulted the deceased Swami Dayal, P.W.1 would have certainly
mentioned that fact in the F.I.R. In view of this material omission it would be
hazardous to place implicit reliance upon the statement of P.W.1 without any
corroborating evidence that the appellants had along with Badri Narain
assaulted Shyam Narain resulting in his death; and to hold, as a corollary
thereto, that they shared die common intention with the other accused to commit
the murder of Shyam Narain.
7. It
was, however,urged on behalf of the respondents that even if the testimony of
Swami Dayal that the three appellants assaulted the deceased could not be
relied upon as he did not attribute such role to them in the F.I.R.
still
then their conviction under Section 302 read with Section 34 of the I.P.C. for
committing the murder of Shyam Narain should be upheld having regard to the
fact that the evidence of P.W.1 that the appellants had chased and surrounded
the deceased when he was attacked by the other accused stood corroborated by
the F.I.R. and that their such criminal acts, clearly established their common
intention to commit the murder.
8.
Undoubtedly the above criminal acts of the three appellants, which must be held
to be conclusively proved in view of the concurrent findings of the learned
Courts below, clearly indicate that they shared some common intention with the
other accused but then the question is whether their common intention was to
commit the murder. Besides the evidence of P.W.1 of their having assaulted the
deceased with lathis- which we have found to be unacceptable-there is no other
evidence, to indicate, that they wanted the deceased to be done away with. It
cannot be gain said however, that their acts facilitated the stabbing of the
deceased by Badri Narain but there is noting whatsoever to indicate that the
appellants knew that he intended to kill him though they must have anticipated
that he would assault the deceased with the spear that he was carrying In that
view of the matter we conclude that though the common intention of the
appellants to cause the death of Shyam Narain has not been established beyond
all reasonable doubts, it has been conclusively established that their common
intention, was to cause injuries to the deceased with deadly weapon, namely,
spear.
9. In
the result the conviction of the appellants under Section 302 read with Section
34 IPC and the sentence of im- prisonment for life for causing the death of Shyam
Narain are set aside and instead they are convicted under Section 324 read with
Section 34 IPC and sentenced to rigorous imprisonment for a period of two years
each. Their conviction under Section 323 read with Section 34 IPC along with
the sentence of one year each thereunder, is uphold as it does not suffer from
any infirmity. The sentences shall run concurrently. The appeal is thus allowed
in part.
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