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PETITIONER: RAM ASREY

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT05/05/1993

BENCH: SINGH N.P. (J) BENCH: 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.

HEADNOTE: 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

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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)

JUDGMENT: 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

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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

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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

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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

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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. 589