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PETITIONER: SHRI RAM & ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT06/11/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1975 AIR  175            1975 SCC  (3) 495  CITATOR INFO :  D          1989 SC1661  (20)

ACT: Indian  Penal Code, Section 107,  third  paragraph-Abetment, meaning  of-Proof  that crime charged could  not  have  been committed  without the interposition of alleged abettor,  if sufficient compliance with the section. Criminal  Trial-Conduct  of shouting by accused  during  the occurrence-Court not justified in heaping one assumption  on another  to particular conduct of accused a meaning it  does not naturally bear. Code  of Criminal Procedure, Section 342-Failure of  accused to explain her shout in her statement-Adverse inference,  if could  be  drawn-Accused,  if  could  subjected  to   cross- examination. Criminal   Trial-Identification  parade,  a  weak  type   of evidence-Oral testimony of prosecution witness, if should be corroborated  by evidence of  identification-Accused  asking for an identification parade, a circumstance, in his favour.

HEADNOTE: Three  brothers  by the name of Sia Ram, Shri  Ram  and  Ram Chandra,  a woman by the name of Violet, and her son  Ramesh were  tried  by the learned Sessions Judge  Farrukhabad,  in connection with the murder of one Kunwar Singh.  The learned Judge  convicted Sia Ram under section 302, Penal  Code  and sentenced him to death.  Violet was convicted under  section 302 read with section 109 and was sentenced to  imprisonment for life.  The remaining three accused were acquitted by the Sessions  Court.   Sia  Ram  and  Violet  challenged   their conviction  by filing an appeal in the High Court while  the State of U.P. filed an appeal against the acquittal of  Shri Ram,  Ram Chandra and Ramesh.  The High Court confirmed  the conviction and sentence of Sia Ram and Violet.  It dismissed the appeal filed by the State Government except in regard to Shri  Ram  whom  it convicted under section  302  read  with section  109.   He was sentenced to imprisonment  for  life. Shri  Ram,  Sia Ram and Violet have filed these  appeals  by special leave. Allowing  the appeals by Shri Ram and Violet  and  rejecting that of Sia Ram. HELD  :  (i) The only part attributed to Violet is  that  on seeing  the deceased Kunwar Singh, a practising lawyer,  who

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was  coming  by cycle along with  his  two  brother-lawyers, Brijendra Singh Yadav and Om Prakash Dubey, she shouted "The Vakil has come." The Sessions Court and the High Court  have accepted  the  evidence  that she did  give  the  particular shout.   In accordance with the practice of this  Court,  no different  view  ought to be taken of  these  simple  facts. [625A-C] (ii) In  order to constitute abetment, the abettor  must  be shown  to have "intentionally" aided the commission  of  the crime.   Mere  proof that the crime charged could  not  have been  committed  without the interposition  of  the  alleged abettor  is not enough compliance with the  requirements  of section 107. intentional aid and therefore active complicity is  the  gist  of the offence of abetment  under  the  third paragraph of sec. 107. [625E-F] (iii)     Apart  from the words attributed to Violet.  there is  nothing  at  all  to show that  she  was  aware  of  the nefarious design of Sia Ram and his associates.  Violet  who was  working as a nurse with a doctor was friendly with  Sia Ram  who was his compounder but that may explain why, if  at all,  she  agreed  to do as directed. it is  true  that  the assailants  were  carrying guns and hockey sticks.   But  on that  account no fair inference can be drawn that  she  knew that  they had all gathered to commit the murder  of  Kunwar Singh.   The Court cannot heap one assumption on another  to give  to  Violet’s  conduct  a meaning  which  it  does  not naturally                             623 bear.   The Words of Violet are at best in the nature  of  a circumstance  and  they do not,  without  more,  necessarily justify the inference that she was a party to the  murderous design. [625G-H] (iv) The  High Court found fault with Violet for not  having offered  any  explanation  during the trial as  to  why  she uttered   the   particular   words.    This   approach    is impermissible.   The  burden  was  on  the  prosecution   to establish its case and no adverse inference could be  raised against  Violet  for her failure to explain  her  utterance. Besides,  an  accused  cannot  while  being  examined  under section  342 of the Code of Criminal Procedure be  subjected to cross-examination and a bald assertion to explain a piece of  conduct almost always fails to convince.. Therefore,  it is  not  possible to agree with the High Court  that  Violet would not have announced the arrival of Kunwar Singh "unless she was aware that the accused persons were lying in wait on the  other side of the road and it was necessary  to  inform them so that they might accomplish their aim." [626D-F] , (v)  Shri  Ram,  along  with  Ram  Chandra,  had  moved   an application  ’,before  the  Additional  District  Magistrate (Judicial) who was conducting the committal proceedings that he was not known to the witnesses and therefore he should be put  up for being identified in ’an  identification  parade. The Public Prosecutor objected to that request.. The learned Magistrate upheld the objection and refused to direct that a parade  be  held.   The  circumstance  that  Shri  Ram   had voluntarily  accepted  the  risk of being  identified  in  a parade  but  was denied that opportunity  was  an  important point  in  his  favour.   The  High  Court  rejected  it  as inconsequential  by  observing that the  oral  testimony  of witnesses,  even if not tested by holding an  identification parade,  can be made the basis of conviction if the  request made by the accused is groundless and the witnesses knew the accused prior to the occurrence.  It is correct to say  that no rule of law requires that the oral testimony of a witness should  be corroborated by evidence of  identification.   In

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fact,  evidence of identification is itself a weak  type  of evidence.   But  the point of the matter is that  the  court which  acquitted Shri Ram was justifiably influenced by  the consideration that though at the earliest stage he had asked that  an  identification  parade be  held,  the  demand  was opposed by the prosecution and the parade was therefore  not held.  But that is not the only point in favour of Shri Ram. Brijendra Singh who was riding on bicycle in the company  of the  deceased did not implicate Shri Ram.  It was the  other lawyer, Om Prakash Dubey, who implicated him.  His  evidence shows  that  it would be unsafe to rely on his  capacity  or ability  to identify Shri Ram.  Sone Lal who gave the  First Information  Report at the police also implicated Shri  Ram. Sone   Lal’s  evidence  is  insufficient  to   sustain   the conviction of Shri Ram.  In view of the serious  infirmities from  which  the evidence of Dubey suffers, the  High  Court ought  not  to have interfered with the order  of  acquittal passed by the trial court in favour Shri Ram. [626-627C; 628A-B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 142  & 205 of 1973. Appeals  from  the Judgment and Order dated the  12th  April 1973  of  the  Allahabad High Court  in  Govt.   Appeal  No. 2847/72  and  by Special Leave from the Judgment  and  order dated the 12th April, 1973 in Crl.  A. No. 1954 of 1972  and Ref.  No. 87 respectively. D.   B. Mukherjee, K. C. Agarwal, M. M. L. Srivastava and E. C., Agarwala, for the appellant. D. P. Uniyal and O. P. Rana, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J.-These two appeals by special leave arise out of  the judgment of the High Court of Allahabad dated  April 12,  1975.  Three brothers by the name of Sia Ram, Shri  Ram and Ram Chandra; a woman by the name of Violet; and her  son Ramesh were tried by. 9-L319Sup.  CI/75 624 the  learned Sessions Judge Farrukhabad, in connection  with the murder of one Kunwar Singh.  The learned Judge convicted Sia  Ram under section 302, Penal Code and sentenced him  to death.   Violet was convicted, under section 302  read  with section 109 and was sentenced to imprisonment for life.  The remaining  three  accused  were acquitted  by  the  Sessions Court.   Sia Ram and Violet challenged their  conviction  by filing  an appeal in the High Court while the State of  U.P. filed  an  appeal  against the acquittal of  Shri  Ram,  Ram Chandra and Ramesh.  The High Court confirmed the conviction and sentence of Sia Ram and Violet.  It dismissed the appeal filed  by the State Government except in regard to Shri  Ram whom  it convicted under section 302 read with section  109. He was sentenced to imprisonment for life. The  incident  in  question took place at about  5  p.m.  on October   20,  1970.   The  deceased  Kunwar  Singh  was   a practising  lawyer and after finishing his work for the  day he left the Fatehgarh court along with the  brother-lawyers, Brijendra  Singh  Yadav  and Om Prakash  Dubey.   They  were proceeding on their bicycles and as they reached a spot near Barhpur  Block,  Violet is alleged to have  shouted  :  "The Vakil has come".  Sia Ram and his companions who were hiding behind  a Shisham tree came out and confronted Kunwar  Singh and  his companions.  Sia Ram, Ram Chandra and Shri Ram  are

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alleged  to  have been armed with guns while Ramesh  and  an unknown person were carrying hockey sticks.  Sia Ram fired a shot  from a point blank range as a result of  which  Kunwar Singh  fell  down.   All the accused  thereafter  ran  away. Brijendra  Singh removed Kunwar Singh to a nursing home  but the  latter succumbed to his injury at 5-25 p.m.  The  other lawyer, Om Prakash Dubey, contacted the District  Magistrate and  the Superintendent of Police vainly attempting to  have the dying declaration of Kunwar Singh recorded. A  person  called  Soney Lal, also alleged  to  be  an  eye- witness,  lodged the First Information Report at the  police station  at about 5-45 p.m. The Superintendent of Police  K. N. Daruwala reached the spot of occurrence shortly before  6 p.m. R. N. Singh, the Sub-Inspector, held an inquest on  the dead  body  of  Kunwar  Singh and  sent  it  for  postmortem examination.    Dr.  Rizvi  who  performed  the   postmortem examination  found. a firearm wound on the left upper  chest of the deceased.  There were tattooing, and scorching  marks around the injury. The  evidence of Brijendra Singh Yadav (P.W. 4) is clear  on the  part  played by the appellant Sia Ram.   That  evidence shows that Sia Ram fired a shot from his gun as a result  of which  Kunwar Singh fell down and died within half an  hour, Brijendra  Singh’s  evidence has been accepted by  both  the courts  and  we  are  unable to see  any  valid  reason  for rejecting it.  Brijendra Singh is a natural witness for  he, like the deceased Kunwar Singh, had left the court after the court hours.  Apart from the fact that he was a colleague of the  deceased  he was not in any manner concerned  with  the deep-seated  enmity  between the appellant Sia Ram  and  the deceased.  The order of conviction and,sentence in regard to Sia Ram must therefore be confirmed. 625 Different  considerations,  however,  arise  in  regard   to Violet.   The only part attributed to her is that on  seeing Kunwar  Singh  she  shouted: "The Vakil has  come".   It  is difficult to believe that Violet was assigned the particular role,  especially  when  Sia Ram and  his  companions  could themselves  have detected the presence of Kunwar Singh  more easily and with lesser ado.  Violet’s brother Ramesh, a  lad of 16, could have with greater ease and effectiveness played the  swift role of alerting the assailants of Kunwar  Singh. But the Sessions Court and the High Court have accepted  the evidence  that Violet did give the particular shout  and  in accordance with our usual practice we would not like to take a different view of these simple facts. The  question  which  then-  arises  for  consideration,   a question to which the Sessions Court and the High Court have not  paid  enough attention, is whether the  only  inference which  arises from the fact that violet gave the  particular shout  is that by so doing, she intended to  facilitate  the murder of Kunwar Singh,, Section 107 of the Penal Code which defines  abetment  provides to the extent  material  that  a person abets the doing of a thing who "Intentionally  aides, by  any act or illegal omission, the doing of  that  thing." Explanation  2  to the section says  that  "Whoever,  either prior  to or at the time of the commission of an  act,  does anything in order to facilitate the commission of that  act, and  thereby facilitates the commission thereof, is said  to and  the  doing of that act." Thus, in order  to  constitute abetment, the abettor must be shown to have  "intentionally" aided  the  commission of the crime.  Mere  proof  that  the crime  charged  could not have been  committed  without  the interposition   of  the  alleged  abettor  is   not   enough compliance  with the requirements of section 107.  A  person

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may, for example, invite another casually or for a  friendly purpose  and that may facilitate the murder- of the  invite. But  unless  the  invitation was  extended  with  intent  to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder.  It is not enough that  an act on the part of the alleged abettor  happens  to facilitate the commission of the crime.  Intentional  aiding and  therefore active complicity is the gist of the  offence of abetment under the, third paragraph of section 107. Apart from the words attributed to Violet, there is  nothing at all to show that she was aware of the nefarious design of Sia  Ram  and his associates.  Violet who was working  as  a Nurse  with a doctor was friendly with Sia Ram who  was  his compounder  but that may rather explain why, if at all,  she agreed  to  do as directed.  Learned counsel for  the  State contended that Sia Ram and his companions were carrying guns and hockey sticks and therefore she would know that they had all gathered to commit the murder of Kunwar Singh.  That  is a  far  not a fair inference to draw.  We  cannot  heap  one assumption on another to give, to Violet’s conduct a meaning which  it does not naturally bear.  The words of Violet  are at  best in the nature, of a circumstance and they  do  not, without more, necessarily justify the inference that she was a party to the murderous design. 6 26 The  High Court concluded on the complicity of Violet  by  a process of reasoning which does not commend to us.  It says               "In case Smt.  Violet had not given intimation               of-the  arrival of the advocate,  the  persons               concealing themselves behind the SHISHAM  tree               may  not  have noticed the arrival  of  kunwar               Singh  in time to assault him.  In  case  the,               accused  were  not assisted by  Smt.   Violet,               they  would have to sit in such a manner  that               they  could watch persons moving about on  the               road.   They  could not have  concealed  their               identity completely.  They could realise  that               if they were not assisted by Smt.  Violet  and               they had to act on their own, the deceased may               notice  their  presence and  may  not  proceed               further.    In   case  the   accused   persons               concealed themselves thoroughly, they may  not               notice the arrival of the deceased in time  to               successfully aim at him.  Assistance asked for               and  rendered  by Smt.  Violet  was  real  and               valuable." This      chain      of      reasoning      contains       a multiplicity of inferences hardly justified by the solitary circumstance that Violet  informed Sia Ram and his colleagues of the presence of Kunwar Singh. The  High  Court  found fault with  Violet  for  not  having offered  any  explanation  during the trial as  to  why  she uttered   the   particular   words.    This   approach    is impermeable.  The burden was on the prosecution to establish its  case and no adverse inference could be  raised  against Violet  for her failure to explain her utterance.   Besides, an accused cannot while being examined under section 342  of the  Code  of  Criminal Procedure  be  subjected.  to  cross examination  and  a  bald assertion to explain  a  piece  of conduct   almost   always  fails  to  convince.    We   are, accordingly,  unable  to  agree with the-  High  Court  that Violet would not have announced the arrival of Kunwar  Singh "  unless she was aware that the accused persons were  lying in  wait on the other side of the road and it was  necessary to inform them so that they might accomplish their aim".

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In regard to Shri Ram, yet different considerations  prevail because the High Court was dealing with an appeal against an order  of  acquittal  in  his  favour.   There  are  certain important  considerations which lend weight to the  view  of the trial court-that it was unsafe to convict Shri Ram. Shri  Ram, along with Ram Chandra, had moved an  application before the Additional District Magistrate (Judicial) who was conducting  the committal proceedings that he was not  known to the witnesses and therefore he should be put up for being identified   in  an  identification  parade.    The   Public Prosecutor objected to that request.  The learned Magistrate upheld the objection and refused to direct that a parade  be held.   The  circumstance  that  Shri  Ram  had  voluntarily accepted  the risk of being identified, in a parade-but  was denied  that  opportunity  was an  important  point  in  his favour.  The High                             627 Court rejected it was inconsequential by observing that  the oral testimony of witnesses even if not tested by holding an identification  parade, can be made the basis of  conviction if  the request made by the accused is groundless  and   the witnesses  knew the accused prior to the occurrence.  It  is correct  to say that no rule of law requires that  the  oral testimony of a witness should be corroborated by evidence of identification.   In  fact, evidence  of  identification  is itself a weak type of evidence.  But the point of the matter is  that the court which acquitted Shri Ram was  justifiably influenced by the consideration that though at the  earliest stage  he had asked that an identification parade  be  held, the-  demand was, opposed by the prosecution and the  parade was there fore not held, That is not the only point in favour of Shri Ram.  Brijendra Singh Yadav who was riding on the Bicycle in the company  of the  deceased, Kunwar Singh did not implicate Shri Ram.   It is  the  other lawyer, Om Prakash Dubey, who stated  in  his evidence  that Shri Ram was armed with a gun and he  emerged from  behind the Shisham trees after Violet gave  the  call. Dubey  is a practising lawyer and we will spare hard  words. But  his  evidence  leaves much to be desired  and,  at  the least,  it  shows that it would be unsafe to  reply  on  his capacity or ability to identify Shri Ram.  In paragraph 4 of his  evidence,  repeated attempts were made by  counsel  for Shri tam to test the claim of Om Prakash Dubey that he  knew Shri  Ram and was therefore able to identify him.   Question after question put in cross-examination was answered by  the witness by saying either that he did not remember or that he did  not know.  Dubey claimed that he had appeared  for  the complainant  in a prosecution arising out of the  murder  of one  Hari  Singh in which Shri Ram figured  as  an  accused. There were two other accused in that case called.  Manphool’ and ’Balister.  Dubey admitted that he, could not say if. he would be able to recognise Balister and that it was possible that  he  may  not be able ’to recognise  Manphool.   It  is doubtful  whether Dubey appeared in the case at  all,  which explains  why  he made the guarded statement  that  he.  had appeared on behalf of the complainant in so far as he  could remember.   He was unable to say who had engaged him or  who appeared  the case along with him or who was examined  as  a witness in the case or who used to instruct him in the case. Enveloped  in  this atmosphere of doubt, Dubey  thought  the better of it to say : "I think I had filed my Vakalatnama in that  case".  The young Dubey had a standing of but 2  years in the District when he is supposed to have appeared for the complainant  in the particular case.  It is  unrealistic  to

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assume  that  he  was so flooded with  work  that  he  could remember no details of an important murder trial. 628 Soney  Lal  who  gave the First  Information  Report.at  the police station, also implicated.  Shri Ram but,  apparently, the  High  Court  was  not impressed by  his  evidence.  has relied on the evidence of Om Prakash- Dubey in order to hold that Shri Ram had played an important role in the murder  of Kunwar  Singh.   Considering the  serious  infirmities  from which  the evidence of Dubey suffers we are of  the  opinion that  the High Court ought not to have interfered  with  the order of acquittal passed, by the trial. court, in favour of Shri Ram.  Soney Lal’s evidence seems to us insufficient  to sustain the conviction of Shri Ram. In  the result we dismiss the appeal of Sia Ram and  confirm his conviction and sentence. We allow the appeals of  Violet and  Shri  Ram and acquit them.  These two shall be  set  at liberty forthwith. V.M.K.                     Appeals partly allowed. 629