Radha
Mohan Singh @ Lal Saheb & Others Vs. State of U.P [2006] Insc 32 (20
January 2006)
K.G.
Balakrishnan, Arun Kumar & G.P. Mathur
WITH
CRIMINAL APPEAL NO. 1186 OF 2004 Kaushal Kishore Singh & another ...
Appellants Versus State of U.P. ... Respondent G.P. Mathur, J.
These
appeals by special leave have been preferred against the judgment and order
dated 9.7.2004 of Allahabad High Court by which the appeal preferred by the
appellants was dismissed and their conviction under Sections 147, 148 and 323,
324 & 302 all read with Section 149 IPC as recorded by the learned Sessions
Judge and the sentences awarded thereunder were affirmed. The appellants were
awarded various terms of imprisonment on different counts including sentence of
imprisonment for life under Section 302 read with Section 149 IPC.
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According to the
case of the prosecution the incident giving rise to the present appeals took
place in Village Sivpur Deeyar Nai Basti in the district of Ballia. The first
informant PW-1 Ganesh Singh was residing in the village while his elder brother
Hira Singh (deceased) was carrying on business in Calcutta. Five days before the present
incident, which took place on 14.3.1979, accused Radha Mohan Singh (A-1), Kaushal
Kishore Singh (A-5) and some others had assaulted Udai Narain. PW-1 Ganesh
Singh was a witness of the said incident and his statement had been recorded
under Section 161 Cr.P.C. The deceased Hira Singh had come to his village home
two days before the Holi festival which fell on 14.3.1979. A-1 and A-5 met the
deceased and asked him to forbid his younger brother PW-1 Ganesh Singh from
giving evidence against them in the criminal case relating to the assault made
upon Udai Narain. The deceased, however, told them that as his brother had seen
the incident, he would appear as a witness and would depose against them. The
accused felt annoyed and threatened that they would teach him a lesson. On
14.3.1979, which was the Holi day, the first informant PW-1 Ganesh Singh and
his brother deceased Hira Singh went to the houses of some people in the
village for the purpose of 'Holi Milan', as was customary. By evening time they
were going on the pathway in front of the house of Nand Kishore, when Radha
Mohan Singh (A-1) armed with spear, Tej Bahadur Singh (A-2) and Kapil Dev Singh
(A-3) armed with lathis, Devender Singh @ Mutuk Singh (A-4) armed with farsa
and Kaushal Kishore Singh (A-5) armed with knife suddenly appeared there. A-1
assaulted Hira Singh with the spear and A-4 assaulted him with farsa and after
receiving the injuries he fell down. When PW-1 Ganesh Singh tried to save him,
A-2 and A-3 assaulted him with lathis. Two other persons who were also present
there, namely, PW-3 Mohan Yadav and PW-6 Ram Pyari tried to intervene and save
them but they were also assaulted by A-5 by knife and A-3 by lathi. The accused
thereafter ran away from the seen of occurrence. Hira Singh was carried on a
cot to the 'bandh', which was at the outskirts of the village and from there he
was taken to the district hospital in a tempo where he was medically examined
at 9.00 P.M. PW-1 Ganesh Singh was medically examined at 9.50 P.M. and the
remaining two injured PW-6 Ram Pyari and PW-3 Mohan Yadav were examined at
11.30 A.M. on the next day. Ganesh Singh lodged a written report of the incident
at 10.30 P.M. on the same night at P.S. Kotwali
giving a complete version of the incident.
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After completion
of investigation charge sheet was submitted against all the five accused and
the case was committed to the court of sessions. The learned Sessions Judge
framed charges under Sections 147, 148 and 323, 324 and 302 all read with
Section 149 IPC against the accused persons. The accused pleaded not guilty and
came to be tried. In order to establish its case prosecution examined five eye
witnesses, namely, PW-1 Ganesh Singh, PW-3 Mohan Yadav, PW-4 Ramji Singh, PW-5 Nand
Kishore and PW-6 Ram Pyari. PW-1 Ganesh Singh, who is the first informant and
had received injuries in the incident, gave complete version of the incident in
his deposition in Court. His testimony was fully corroborated by PW-4 Ramji
Singh, who was also named as an eye witness of the incident in the FIR.
PW-3
Mohan Yadav, an injured witness, supported the prosecution case in his
examination-in-chief and in cross-examination. As his cross-examination could
not be completed it was continued on the next day when he stated that on
account of darkness he could not identify anyone. On the request of the learned
State counsel, he was permitted to be cross examined. PW-5 Nand Kishore and
PW-6 Ram Pyari did not support the case of the prosecution and they were
declared hostile.
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The learned
Sessions Judge, after thorough examination of the evidence on record, held that
the prosecution had succeeded in establishing the charges leveled against all
the accused and accordingly convicted them under Sections 147, 148 and 323, 324
and 302 all read with Section 149 IPC and imposed sentence of various terms of
imprisonment including life imprisonment under Section 302 read with Section
149 IPC. The appeal preferred by the appellants was heard by a Division Bench
consisting of Hon'ble S.K. Agarwal and Hon'ble K.K. Misra, JJ. There was a
difference of opinion between the two learned Judges. Hon'ble S.K. Agarwal, J.
was of the opinion that the appeal should be allowed and the conviction of the
appellants and the sentences imposed thereunder were liable to be set aside. Hon'ble
K.K. Misra, J. was of the opinion that the appeal was liable to be dismissed
and the conviction of the appellants and the sentences imposed by the learned
Sessions Judge deserved to be upheld. In view of difference of opinion the
appeal was placed for hearing before Hon'ble U.S. Tripathi J., who came to the
conclusion that the appeal deserved to be dismissed. In accordance with the
opinion of the learned third Judge the appeal was dismissed and the conviction
and sentences imposed upon the appellants by the learned Sessions Judge were
affirmed by the High Court.
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During the pendency
of the appeal in this Court Tej Bahadur Singh (A-2) died and his appeal has
accordingly abated.
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Dr. J.N. Dubey,
learned senior counsel for A-4 and A-5, has submitted that the incident had
taken place in darkness and the assailants could not be identified or seen by
the prosecution witnesses and, therefore, the conviction of the appellants
cannot be sustained.
Learned
counsel has submitted that PW-3 Mohan Yadav, who had received injuries in the
incident, had admitted the said fact in his cross-examination and two other eye
witnesses, viz., PW-5 Nand Kishore and PW-6 Ram Pyari had also not supported
the prosecution case in their examination-in-chief itself and in such a
situation no reliance could be placed on the testimony of the remaining eye
witnesses to uphold the conviction of the appellants.
7.
It is well settled
that while hearing an appeal under Article 136 of the Constitution this Court
will normally not enter into reappraisal or the review of evidence unless the
trial court or the High Court is shown to have committed an error of law or
procedure and the conclusions arrived at are perverse. The Court may interfere
where on proved facts wrong inference of law is shown to have been drawn (see Duli
Chand vs. Delhi Administration (1975) 4 SCC 649, Mst. Dalbir Kaur and others
vs. State of Punjab (1976) 4 SCC 158, Ramanbhai Naranbhai Patel and others vs.
State of Gujarat (2000) 1 SCC 358 and Chandra Bihari Gautam and others vs.
State of Bihar JT 2002 (4) SC 62). Though the legal position is quite clear
still we have gone through the evidence on record in order to examine whether
the findings recorded against the appellants suffer from any infirmity.
The
testimony of PW-1 Ganesh Singh, who is an injured witness, and PW-4 Ramji Singh
clearly establishes the guilt of the accused.
According
to the case of the prosecution the incident took place shortly after sunset.
The eye witnesses have deposed that after the incident the deceased Hira Singh
was carried on a cot to the 'bandh', which is on the outskirts of the village.
As no conveyance was available, the first informant had to wait for quite some
time and thereafter a tempo was arranged on which the deceased was taken to the
district hospital where he was medically examined by PW-2 Dr. Siddiqui at 9.00 P.M. It has come in evidence that the village is at a
distance of six miles from police station Kotwali, Ballia. The non-
availability of any conveyance is quite natural as it was Holi festival.
Even
PW-3 Mohan Yadav fully supported the prosecution case in his
examination-in-chief. In his cross-examination, which was recorded on the same
date, he gave details of the weapons being carried by each of the accused and
also the specific role played by them in assaulting the deceased and other
injured persons. As his cross-examination could not be completed it was resumed
on the next day and then he gave a statement that he could not see the incident
on account of darkness. His testimony has been carefully examined by the
learned Sessions Judge and also by two learned Judges of the High Court (Hon'ble
K.K. Misra,J. and Hon'ble U.S. Tripathi, J.) and they have held that the
witness, on account of pressure exerted upon him by the accused, tried to
support them in his cross-examination on the next day. It has been further held
that the statement of the witness, as recorded on the first day including his
cross-examination, was truthful and reliable. It is well settled that the
evidence of a prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross-examined him. The evidence
of such witness cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent his version is found to
be dependable on a careful scrutiny thereof. (See Bhagwan Singh v. State of Haryana AIR 1976 SC 202, Rabinder Kumar Dey
v. State of Orissa AIR 1977 SC 170, Syed Akbar v. State of Karnataka AIR 1979 SC 1848 and Khujji @ Surendra
Tiwari v. State of Madhya
Pradesh AIR 1991 SC
1853). The evidence on record clearly shows that the FIR of the incident was
promptly lodged and the testimony of PW-1 Ganesh Singh, PW-4 Ramji Singh and
also PW-3 Mohan Yadav finds complete corroboration from the medical evidence on
record. We find absolutely no reason to take a different view.
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Dr. J.N. Dubey,
learned senior counsel for A-4 and A-5 has submitted that there was a
difference of opinion between the two learned judges who had heard the appeal
and Hon. S.K. Agarwal, J. was of the opinion that the prosecution had failed to
establish the guilt of the accused and they were entitled to be acquitted. In
these circumstances, the learned third Judge, to whom the appeal had been
referred, should have leaned in favour of the view taken by Hon. S.K. Agarwal,
J. as a rule of prudence and should not have differed from the findings
recorded by His Lordship unless the same were perverse or there were strong and
weighty reasons for doing so. We are unable to accept the contention raised.
Section 392 Cr.P.C. lays down that when an appeal under Chapter XXIX is heard
by a High Court before a Bench of judges and they are divided in opinion, the
appeal with their opinions, shall be laid before another Judge of that Court,
and that judge, after such hearing as he thinks fit, shall deliver his opinion
and the judgment and order shall follow that opinion. In Babu & Ors. v. The
State of Uttar Pradesh AIR 1965 SC 1467, Hidayatullah, J. (as His Lordship then
was) speaking for the Constitution Bench held that Section 429 Code of Criminal
Procedure, 1908 (which is same as Section 392 Code of Criminal Procedure, 1973)
contemplates that it is for the third judge to decide on what point he shall
hear arguments, if any, and that postulates that he is completely free in
resolving the difference as he thinks fit. In Hethubha v. State of Gujarat AIR 1970 SC 1266, it was held that the
whole case is to be dealt with by the third judge and not merely the difference
between the two judges comprising the Court of appeal and the third judge was
free to resolve the differences as he thought fit. In State of Andhra Pradesh v. P.T. Appaiah AIR 1981 SC 365,
there was a difference of opinion between two learned judges of the High Court
on the nature of the offence committed by the accused. One learned judge held
that the accused did not intend to cause death and consequently the offence
committed by him was culpable homicide not amounting to murder punishable under
Section 304 Part I IPC. The other learned judge held that the offence committed
by the accused fell under clause Thirdly of Section 300 IPC and the accused was
liable to be convicted under Section 302 IPC. The third learned judge, after
examination of entire evidence on record, came to the conclusion that the same
was doubtful and suspicious in character and accordingly acquitted the accused.
In appeal filed by the State, it was contended before this Court that it was
not open to the learned third judge to have acquitted the accused when both the
learned Judges who heard the appeal initially were of unanimous opinion that
the accused was guilty of having committed the offence and they had merely
differed on the nature of offence committed by the accused. It was held that
having regard to the language used in Section 429 Code of Criminal Procedure,
1908, the third judge to whom the case was referred did not over step the limits
of his jurisdiction in acquitting the accused merely because there was
concurrent finding of both the judges composing the Division Bench that the
accused was guilty of some offence or that the difference between the two
judges of the Division Bench was confined to the nature of the offence only.
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A similar
contention that the learned third judge should as a rule of prudence or on the
principle of judicial etiquette lean in favour of the view taken by the learned
judge who had recorded the opinion for acquittal of the accused was expressly
repelled by a three- Judge Bench of this Court in Dharam Singh v. State of
Uttar Pradesh 1964 (1) Crl.LJ 78 and it was observed as under : "All that
S. 429 says is that the opinion of the two judges who disagree shall be laid
before another judge who, after giving such hearing, if any, as he thinks fit,
shall deliver his opinion and the judgment or order shall be in accordance with
such opinion. Now it is obvious that when the opinions of the two judges are
placed before a third judge he would consider those two opinions and give his
own opinion and the judgment has to follow the opinion of the third judge.
Consequently on that opinion is based the judgment of the court. For all
practical purposes the third judge must consider the opinions of his two
colleagues and then give his own opinion but to equate the requirements with
appeals against acquittals is not justified by provisions of S. 429 or by
principle of precedent.
There
is no warrant for the contention that the opinion of the judge acquitting the
accused has to be treated in the same manner as the judgment of acquittal by
the trial court and that the judgment should show that all the findings and
reasons given in the opinion of the acquitting judge are mentioned in the
opinion of the third judge and indicate the reasons for disagreeing with the
opinion of the acquitting judge." Similar view has been expressed in Tanviben
Pankajkumar Divetia v. State of Gujarat 1997 (7) SCC 156 that the third judge
is under no obligation to accept the view of one of the judges holding in favour
of acquittal of the accused either as a rule of prudence or on the score of
judicial etiquette. This being the settled legal position it is not possible to
accept the contention raised by the learned counsel for the appellant.
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Shri R.K. Jain, learned senior
counsel appearing for A-1 and A-3 has submitted that in the inquest report
there was no mention of the names of the accused or the weapons used by them in
commission of the crime and the nature of the injury sustained by the deceased
had also not been described and there was a general recital that the death had
occurred on account of injuries caused. Emphasis has also been laid on the fact
that the time and date of lodging the FIR has been mentioned as "10 p.m. on 15.3.79", though the prosecution has come
out with a case that the FIR had been lodged at "10 p.m. on 14.3.79".
Learned
counsel has thus submitted that these features show that the FIR had in fact
not been lodged by the time the inquest was held and the same has been
anti-timed. In our opinion the date of lodging the report has been wrongly
written in the inquest report as "15.3.79 samai 10 baje raat (15.3.79 at 10 p.m.)". At the top of the inquest report the crime
number and the sections (Crime No.193/79 under Section 147/148/149/323/302 IPC)
have been mentioned. The time of commencement of the inquest is written as
"7 a.m. on 15.3.79" and the time of
conclusion of the inquest is written as "8.30 a.m. on 15.3.79". If the inquest had been concluded by 8.30
a.m. on 15.3.79, there was no occasion for writing the time of lodging of the
FIR as "10 p.m. on 15.3.79" as the person preparing the inquest
report could not have written anything about an event which was yet to take
place.
We
have not the slightest doubt that the investigating officer holding the inquest
mentioned the date of lodging of the FIR as "15.3.79" instead of
"14.3.79" inadvertently or by mistake. That apart, it is important to
note that during the course of cross-examination PW.7 Ram Shabad Singh, SI, who
held the inquest on the body of the deceased in the hospital, his attention was
not drawn to the aforesaid fact that the date and time of lodging of the FIR
was mentioned as "10
p.m. on 15.3.79".
If the said discrepancy had been pointed out to him, he could have given an
explanation for the same. No argument on the basis of an alleged discrepancy,
overwriting, omission or contradiction in the inquest report can be entertained
unless the attention of the author thereof is drawn to the said fact and he is
given an opportunity to explain when he is examined as a witness in Court.
Therefore,
in the present case it is impermissible to draw any inference against the
prosecution on the ground that the date of lodging the FIR was wrongly
mentioned in the FIR. Regarding the non-mention of exact nature of injuries, it
may be mentioned here that the deceased Hira Singh had been taken to the
hospital where he was given medical aid. The inquest report mentions that there
were two injuries which had been bandaged after applying some red colour
medicine with cotton.
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Learned counsel has also submitted
that as the names of the accused or the weapons carried by them and the names
of the eye witnesses had not been mentioned in the inquest report, it clearly
showed that by the time the inquest report had been prepared, viz., 8.30 a.m.
on 15.3.79, the prosecution was not sure about its case and the FIR had not
come into existence. In support of this contention strong reliance has been
placed on some observations made by a two- Judge Bench of this Court in Meharaj
Singh v. State of U.P. 1994(5) SCC 188 in para 11 of the reports which read as
under :
"..................................
It deserves to be noticed that in the inquest report even the name of the
accused has not been mentioned. It also does not contain the names of the eye-
witnesses or the gist of the statement of the eye-witnesses. It does not reveal
as to how many shots had been fired or how many weapons had been used. The
inquest report is not signed by any of the eye witnesses, although the
investigating officer has categorically asserted that Kamlesh and Shiv Charan
were present at the place of occurrence when he visited and he recorded their
statements. If he had actually recorded their statements, there is no reason
why the details which we have found missing from the inquest report should not
have been there. ....................................................."
and also the following observations made in para 12 :
".....................................
Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at
serving a statutory function, to lend credence to the prosecution case, the
details of the FIR and the gist of statements recorded during inquest proceedings
get reflected in the report. The absence of those details is indicative of the
fact that the prosecution story was still in an embryo state and had not been
given any shape and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed to give it the colour
of a promptly lodged FIR. In our opinion, on account of the infirmities as
noticed above, the FIR has lost its value and authenticity and it appears to us
that the same has been ante-timed and had not been recorded till the inquest
proceedings were over at the spot by PW.8."
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The provision for holding of inquest
is contained in Section 174 Cr.P.C. and the heading of the Section is Police to
enquire and report on suicide etc. Sub-sections (1) and (2) thereof read as under
: 174. Police to enquire and report on suicide, etc.
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When the officer in charge of a
police station or some other police officer specially empowered by the State
Government in that behalf receives information that a person has committed
suicide, or has been killed by another or by an animal or by machinery or by an
accident, or has died under circumstances raising a reasonable suspicion that
some other person has committed an offence, he shall immediately give
intimation thereof to the nearest Executive Magistrate empowered to hold
inquests, and, unless otherwise directed by any rule prescribed by the State
Government, or by any general or special order of the District or
Sub-divisional Magistrate, shall proceed to the place where the body of such
deceased person is, and there, in the presence of two or more respectable
inhabitants of the neighbourhood, shall make an investigation, and draw up a
report of the apparent cause of death, describing such wounds, fractures,
bruises, and other marks of injury as may be found on the body, and stating in
what manner, or by what weapon or instrument (if any), such marks appear to
have been inflicted.
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The report shall be signed by such
police officer and other persons, or by so many of them as concur therein, and
shall be forthwith forwarded to the District Magistrate or the Sub- divisional
Magistrate.
The
language of the aforesaid statutory provision is plain and simple and there is
no ambiguity therein. An investigation under Section 174 is limited in scope
and is confined to the ascertainment of the apparent cause of death. It is
concerned with discovering whether in a given case the death was accidental,
suicidal or homicidal or caused by animal and in what manner or by what weapon
or instrument the injuries on the body appear to have been inflicted. It is for
this limited purpose that persons acquainted with the facts of the case are
summoned and examined under Section 175. The details of the overt acts are not
necessary to be recorded in the inquest report.
The
question regarding the details as to how the deceased was assaulted or who
assaulted him or under what circumstances he was assaulted or who are the
witnesses of the assault is foreign to the ambit and scope of proceedings under
Section 174. Neither in practice nor in law it is necessary for the person
holding the inquest to mention all these details.
-
In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the
proceedings under Section 174 have a very limited scope.
The object
of the proceedings is merely to ascertain whether a person has died under
suspicious circumstances or an unnatural death and if so what is the apparent
cause of the death. The question regarding the details as to how the deceased
was assaulted or who assaulted him or under what circumstances he was assaulted
is foreign to the ambit and scope of the proceedings under S. 174. Neither in
practice nor in law was it necessary for the police to mention those details in
the inquest report. It is, therefore, not necessary to enter all the details of
the overt acts in the inquest report. Their omission is not sufficient to put
the prosecution out of Court. In Shakila Khader v. Nausher Gama AIR 1975 SC
1324 the contention raised that non-mention of a person's name in the inquest
report would show that he was not a eye- witness of the incident was repelled
on the ground that an inquest under Section 174 Cr.P.C. is concerned with
establishing the cause of death and only evidence necessary to establish it
need be brought out.
The
same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an
eye-witness in the inquest report could not be a ground to reject his
testimony.
Similarly,
the absence of the name of the accused in the inquest report cannot lead to an
inference that he was not present at the time of commission of the offence as
the inquest report is not the statement of a person wherein all the names
(accused and also the eye-witnesses) ought to have been mentioned. The view
taken in Podda Narayana v. State of A.P. (supra) was approved by a three-Judge
Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853
and it was held that the testimony of an eye-witness could not be discarded on
the ground that their names did not figure in the inquest report prepared at
the earliest point of time. The nature and purpose of inquest held under
Section 174 Cr.P.C. was also explained in Amar Singh v. Balwinder Singh 2003
(2) SCC 518. In the said case the High Court had observed that the fact that
the details about the occurrence were not mentioned in the inquest report
showed that the investigating officer was not sure of the facts when the
inquest report was prepared and the said feature of the case carried weight in favour
of the accused. After noticing the language used in Section 174 Cr.P.C. and
earlier decisions of this Court it was ruled that the High Court was clearly in
error in observing as aforesaid or drawing any inference against the
prosecution. Thus, it is well settled by a catena of decisions of this Court
that the purpose of holding an inquest is very limited, viz., to ascertain as
to whether a person has committed suicide or has been killed by another or by
an animal or by machinery or by an accident or has died under circumstances
raising a reasonable suspicion that some other person has committed an offence.
There is absolutely no requirement in law of mentioning the details of the FIR,
names of the accused or the names of the eye-witnesses or the gist of their
statement nor it is required to be signed by any eye-witness. In Meharaj Singh
v. State of U.P. (supra) the language used by the
legislature in Section 174 Cr.P.C. was not taken note of nor the earlier
decisions of this Court were referred to and some sweeping observations have
been made which are not supported by the statutory provision. We are,
therefore, of the opinion that the observations made in paras 11 and 12 of the
reports do not represent the correct statement of law and they are hereby
over-ruled. The challenge laid to the prosecution case by Shri Jain on the
basis of the alleged infirmity or omission in the inquest report has,
therefore, no substance and cannot be accepted.
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Learned counsel for the appellants
have lastly submitted that the appellants had no motive to commit the murder of
Hira Singh deceased as it was PW.1 Ganesh Singh who was an eye-witness to the
assault made by A-1 and A-5 upon Udai Narain five days earlier and they wanted
him (PW.1) not to give evidence against them in the said case. So the real
animosity was with Ganesh Singh. The deceased Hira Singh was no doubt the elder
brother of Ganesh Singh but he was living away from the village and was
carrying on business in Calcutta.
He had
come to his village on the occasion of Holi festival and it was then that A-1
and some other co-accused had asked him to forbid his brother (PW.1) not to
give evidence to which he had given a reply that being a witness to the
incident he would give evidence in Court.
Thus,
the only act attributed to the deceased was his refusal to persuade his younger
brother not to give evidence against A-1 and A- 5 regarding the incident of
assault made upon Udai Narain. There was no guarantee that Ganesh Singh would
not have given evidence against them even after Hira Singh had dissuaded him
from doing so more so when he was living away from the village. Learned counsel
has further submitted that so far as A-2, A-3 and A-5 are concerned, they did
not cause any injury to the deceased and the second injury on the body of the
deceased was a small incised wound which was only skin deep and it was a
superficial injury. It has thus been urged that the conviction of the remaining
accused for the offence under Section 302 with the aid of Section 149 IPC,
other than the one who caused the stab wound on the chest which proved fatal,
is illegal and deserves to be set aside.
-
In this connection it is necessary
to refer to the injuries caused to the deceased and the injured. PW.10 Dr.Prem Prakash,
Medical Officer, District Hospital, Ballia performed post-mortem examination on the body of
the deceased Hira Singh and found the following ante- mortem injuries on his
person :
Margins
of wound are well defined. Wound is directed downwards and towards the right
side.
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Incised wound 0.5 cm x 0.2 cm x skin
deep on the left side of chest in mid axillary line 16 cm behind the axilla and
24 cm left to the mid line.
The
internal examination showed that both the pleurae had punctured. The right lung
had a punctured wound 1.5 cm x 1 cm x large tissue deep and the left lung had a
punctured wound 2 cm x 1 cm x through and through in upper lobe. The doctor has
opined that injury no.1 had been caused by a sharp pointed weapon whose both
the edges were sharp and the blade of the weapon would have been about 3 cm
wide. The weapon had punctured up to the depth of about 7-8 cms. and the injury
was not possible by a weapon whose blade was more than 3 cm in width. The
doctor has further opined that injury no.1 was sufficient in the ordinary
course of nature to cause death. No internal damage had been caused by the
second injury as it was skin deep only. PW-1 Ganesh Singh was medically
examined in the Distt. hospital at 9.50 P.M. on 14.3.1979 and he was found to have sustained a lacerated wound on
the right parietal region, a contusion with swelling on the right parietal
region besides two contusions one each on the right shoulder and the left knee
joint. Two other persons, who received injuries, namely PW-6 Ram Pyari and PW-3
Mohan Yadav were medically examined in the same hospital on the next day at
11.30 A.M. Ram Pyari was found to have sustained an abrasion on the head and
swelling in the left hand, while Mohan Yadav had sustained two lacerated wounds
on the fingers of left hand. The injuries of all the three injured were simple
in nature.
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The medical evidence shows that the
deceased had died on account of stab wound which had been inflicted on the
chest (injury no.1). Two accused, namely, Radha Mohan Singh (A-1) who was armed
with spear and Devender Singh @ Mutuk Singh (A-4) who was armed with pharsa are
alleged to have assaulted the deceased. Pharsa is a sharp weapon having a long
blade while spear is a sharp pointed weapon. It is, therefore, obvious that
injury no.1, which is a stab wound, was caused by Radha Mohan Singh (A-1). The pharsa
does not appear to have been wielded with any amount of force or with an
intention to cause injury as the incised wound is a very small and superficial
one being only 0.5 cm x 0.2 cm x skin deep in dimension.
The
possibility that the deceased received this injury when he fell down on the
pathway cannot be entirely ruled out. The remaining accused are not alleged to
have assaulted the deceased but are alleged to have assaulted Ganesh Singh, Ram
Piari and Mohan and the injuries on their person were found to be simple in
nature. Having regard to these facts the nature of offence committed by the
accused has to be determined.
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So far as A-1 is concerned, his case
is fully covered by clause Thirdly of Section 300 IPC as it can be reasonably
inferred that he intended to cause bodily injury to the deceased by aiming the
blow on the left side of the chest and the injury was found to be sufficient in
the ordinary course of nature to cause death. Therefore, he is clearly liable
to be convicted under Section 302 IPC. Learned Sessions Judge had framed charge
under Section 302 read with Section 149 IPC against all the accused including
A-1. In view of Section 464 Cr.P.C. it is possible for the appellate or revisional
court to convict an accused for an offence for which no charge was framed
unless the Court is of the opinion that the failure of justice would in fact
occasion. In order to judge whether a failure of justice has been occasioned it
will be relevant to examine whether the accused was aware of the basic
ingredients of the offence for which he is being convicted and whether the main
facts sought to be established against him were explained to him clearly and
whether he got a fair chance to defend himself. In Dalbir Singh v. State of
U.P. 2004 (5) SCC 334, this question has been examined by a three Judge Bench
to which one of us (G.P. Mathur,J.) was a party and aforesaid principle has
been laid down.
In the
present case the witnesses examined on behalf of the prosecution, whose
testimony has been relied upon, clearly deposed that A-1 was armed with a spear
and he assaulted the deceased with the said weapon. In his examination under
Section 313 Cr.P.C. a specific question in this regard was put to A-1.
Therefore, A-1 was made aware of the basic ingredients of the offence and the
main facts sought to be established against him were explained to him. Thus, he
can be convicted under Section 302 IPC for having committed the murder of Hira
Singh.
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The question arises whether the
conviction of the remaining accused under Section 302 read with Section 149 IPC
is legally sustainable. The scope of Section 149 I.P.C. was explained in Mizaji
v. State of U.P. AIR 1959 SC 572, which decision has
been followed in many later cases, in the following manner :
"The
first part of section 149 IPC means that the offence committed in prosecution
of the common object must be one which is committed with a view to accomplish
the common object. It is not necessary that there should be a preconcert in the
sense of a meeting of the members of the unlawful assembly as to the common
object; it is enough if it is adopted by all the members and is shared by all
of them. In order that the case may fall under the first part, the offence
committed must be connected immediately with the common object of the unlawful
assembly of which the accused were members. Even if the offence committed is
not in direct prosecution of the common object of the assembly, it may yet fall
under Section 149 if it can be held that the offence was such as the members
knew was likely to be committed. The expression 'know' does not mean a mere
possibility, such as might or might not happen. Though it can be said that when
an offence is committed in prosecution of the common object, it would generally
be an offence which the members of the unlawful assembly knew was likely to be
committed in prosecution of the common object that does not make the converse
proposition true; there may be cases which would come within the second part
but not within the first.
The
distinction between the two parts of Section 149 Indian Penal Code cannot be
ignored or obliterated. In every case it would be an issue to be determined
whether the offence committed falls within the first part of Section 149 as
explained above or it was an offence such as the members of the assembly knew
to be likely to be committed in prosecution of the common object and falls
within the second part."
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In Alauddin Mian v. State of Bihar AIR 1989 SC 1456 the import of Section
149 IPC was explained as under :
".......
This section creates a specific offence and makes every member of the unlawful
assembly liable for the offence or offences committed in the course of the
occurrence provided the same was/were committed in prosecution of the common
object or was/were such as the members of that assembly knew to be likely to be
committed. Since this section imposes a constructive penal liability, it must
be safely construed as it seeks to punish members of an unlawful assembly for
the offence or offences committed by their associate or associates in carrying
out the common object of the assembly. What is important in each case is to
find out if the offence was committed to accomplish the common object of the
assembly or was one which the members knew to be likely to be committed.
There
must be a nexus between the common object and the offence committed and if it
is found that the same was committed to accomplish the common object every
member of the assembly will become liable for the same. Therefore, any offence
committed by a member of an unlawful assembly in prosecution of anyone or more
of the five objects mentioned in Section 141 will render his companions
constituting the unlawful assembly liable for that offence with the aid of
Section 149, it is not the intention of the legislature in enacting Section 149
to render every member of an unlawful assembly liable to punishment for every
offence committed by one or more of its members. In order to invoke Section 149
it must be shown that the incriminating act was done to accomplish the common
object of the unlawful assembly. Even if an act incidental to the common object
is committed to accomplish the common object of the unlawful assembly, it must
be within the knowledge of other members as one likely to be committed in
prosecution of the common object. If the members of the assembly knew or were
aware of the likelihood of a particular offence being committed in prosecution
of the common object, they would be liable for the same under Section
149."
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As mentioned earlier there was no
such motive which could have impelled the accused persons to commit the murder
of Hira Singh as he had merely declined to ask or persuade his younger brother
PW.1 Ganesh Singh from giving evidence against A-1 and A-5 in the case relating
to assault made upon Udai Narain. The statement of Ganesh Singh had already
been recorded under Section 161 Cr.P.C. The deceased was not himself a witness
in the said case. A-2, A-3 and A-5 did not cause any injury to the deceased.
The incised wound on the body of deceased is of very small dimension and is
only skin deep, which shows that A-4 did not wield the farsa with any intention
or object to cause injury to deceased. In view of these features of the case,
it cannot be held that the common object of the unlawful assembly was to commit
the murder of the deceased or that the members of the unlawful assembly knew
that murder is likely to be committed in prosecution of the common object of
the assembly.
However,
as members of the unlawful assembly carried deadly weapons, the knowledge that
grievous injury may be caused can certainly be attributed to them. We are,
therefore, of the opinion that conviction of A-3, A-4 and A-5 under Section 302
read with Section 149 IPC deserves to be set aside and instead they are liable
to be convicted under Section 326 read with Section 149 IPC for which a
sentence of 7 years RI will meet the ends of justice.
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In the result, the appeal filed by Radha
Mohan Singh @ Lal Saheb is dismissed with the modification that his conviction
is altered from Section 302 read with Section 149 IPC to that under Section 302
IPC. He is sentenced to imprisonment for life under the said Section.
The
appeals filed by Kapil Deo Singh, Devendra Singh alias Mutuk Singh and Kaushal Kishore
Singh are partly allowed. Their conviction under Section 302 read with Section
149 IPC and the sentence of imprisonment for life imposed thereunder are set
aside.
They
are instead convicted under Section 326 read with Section 149 IPC and for the
said offence they are sentenced to undergo 7 years RI.
The
conviction of all the appellants for the remaining offences as recorded by the
learned Sessions Judge and the sentences imposed thereunder are affirmed. All
the sentences imposed upon the appellants shall run concurrently. The
appellants shall surrender forthwith to undergo the sentences imposed upon
them. The Chief Judicial Magistrate, Ballia (U.P.) is directed to take
immediate steps to take the appellants into custody. After the appellants have
been taken into custody, their sureties and bail bonds shall stand discharged.
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