IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1478 OF 2004

Babu …. Appellant

Versus

State of Uttar Pradesh …. Respondent

ORDER

1. This is an appeal by one of the convicted persons, namely, Babu, who was  

accused No. 4 in an incident which occurred in the night of      21st and 22nd April,  

1984, in which two persons, namely Manoj and Ramu were killed and Devender was  

seriously injured.  As many as five accused persons were tried for the offences falling  

under  Sections  147,  148,  302/149 and  323/149  of  the  Indian  Penal  Code.   In  the  

concerned incident, two persons lost their lives.  They were Manoj and Ramu.  One of  

the persons was seriously injured, he was Devender.

2. The prosecution case was that in between the night of 21st and 2nd April,  

1989 all  these accused persons in furtherance of  their  common object  attacked the  

complainant party, who were working by the side of a tubewell in their field.  The  

attack was made by the accused persons who were armed with various weapons, like  

spear, Lathi, knife and Balkati (probably a sharp-edged weapon).  In the said attack, as

has been stated earlier, Manoj and Ramu lost their lives on the spot, whereas Devender  

(PW-3) survived the attack although he was severely attacked.

3. In the First Information Report, which was lodged at the instance of PW-1  

Yashpal, as many as six persons were involved.  However, the 6th person Hukam Singh  

was not proceeded against, probably finding that he was not involved in the incident.  

The  trial  Court  convicted  four  persons.   Presently,  we  are  concerned  with  the  4th  

accused-appellant herein.

4. The role ascribed to him was that he was present amongst those persons who  

assaulted  Manoj,  Ramu  and  Devender,  causing  them  multiple  injuries.   It  is  not  

necessary for us to go into the injuries, but the fact that the injuries were multiple and  

they included injuries on the head, a fracture of skull etc., the attack was clearly with  

the common object of committing the murder of two persons.  Even the injuries caused  

to Devender are quite serious.

5. There cannot be any dispute that in the First Information Report, a clear cut  

allegation was made against all the accused persons that they came to the field in the  

dead of night and assaulted the deceased Manoj, Ramu and Devender who were also  

present with other persons in the field.

6. Since  the  Trial  court  had  accepted  the  case  against  the  accused  persons,  

namely, Sohan Lal, Reshampal,  Sheoraj and Babu, it seems an appeal was filed on  

behalf of all of them.  The High Court, however, has acquitted accused Reshampal

(original accused No. 2) presumably on the ground that the allegation against him was  

that he attacked with a spear and that the injured person or the dead persons did not  

have any injuries which could be caused by a spear, like punctured wounds.  The High  

Court  has  on  that  basis  given  the  benefit  of  doubt  to  the  accused  Reshampal  and  

acquitted him.

7. The acquittal of Reshampal is not challenged by the State.  However, the  

learned  counsel  appearing  on  behalf  of  the  appellant  contended  that  his  case  was  

identical  with  that  of  Reshampal.   Firstly,  the  learned  counsel  tried  to  attack  the  

evidence of PW-2 Jagvir, PW-3 Devender and PW-7 Dhirender.  According to learned  

counsel, this evidence was not sufficient to bring home the quilt of the accused as there  

were inter se contradictions in between the evidences of PW-2 and PW-3, who claimed  

to be present at the spot at the time of occurrence and that these contradictions are in  

respect  of  the direction in  which the  accused fled  away the  moment the  witnesses  

approached  them hearing  the  shouts  made by the  injured  persons  when they were  

actually injured.

8. We have seen the evidences very closely and we are not impressed by the  

argument of the learned counsel for the appellant as the witnesses are unanimous in  

respect  of  the presence of  the accused persons and the  fact  that  all  of  them made  

collective attack on the deceased persons, as well as, the injured.  The witnesses have  

also spoken about the weapons handled by each of the accused persons and all  the  

witnesses were unanimous that the present appellant Babu had a stick in his hand and  

that he took an active part in the said assault.

9. Learned counsel also tried to point out that because of darkness it was not  

possible for the witnesses to make such a graphic description of the assault and also  

speak  about  each  of  the  accused  handling  a  particular  weapon.   According  to  the  

learned  counsel,  the  evidence  of  the  witnesses  was  unnatural  and  only because  of  

enmity with the accused person and to implicate them falsely.

10. We have examined the evidence of the witnesses.  The appreciation of the  

evidence on the part of the Trial Court and the re-appraisal thereof by the High Court is  

flawless.  All the possible criticism has been taken into consideration by both the Trial  

Court as also by the High Court.

11. In that view of the matter, we do not accept the contention of the learned  

counsel.  However, the learned counsel points out that the situation of accused No. 4 –  

Babu was identical with that of Reshampal and, therefore, if Reshampal was acquitted  

by the High Court by giving him the benefit of doubt, similar treatment should have  

been given to accused No. 4-appellant herein also.  We do not agree.  Predominantly  

the reason given for acquittal of Reshampal appears to be the inference drawn up by  

the High Court that there was no injury caused by the spear.  The High Court has made  

an observation, whenever any accused take any weapon to the scene of occurrence,  

then he uses the weapon in the incident in the normal manner, meaning that he would  

not use the spear as a stick.  It was unlikely that Reshampal had used a spear as there  

are no injuries of spear on body of the deceased or the injured.  It is on that ground that  

Reshampal has been given the benefit of doubt and that may not be available to the  

present appellant Babu as we find from the evidence that there were multiple injuries

caused by Lathi on the body of the deceased as also on the body of the injured witness  

PW-3.

12. Therefore, it is not possible to weight the evidence as against Reshampal and  

Babu, applying the same yardstick.  We are of the opinion that the High Court has  

properly re-appraised the evidence as appreciated by the Trial Court.

13. For this reason, it is not necessary for us even to refer to the evidence of  

other  witnesses  who  have  been  examined  in  support  of  the  aforementioned  three  

witnesses.   Since we are clearly of  the  opinion that  the accused persons made the  

assault having common object of committing the murder, their appeal has rightly been  

dismissed by the High Court.

14. We do  not  find  any merit  in  this  appeal  by accused  No.  4  Babu.   It  is  

dismissed as such.

………………………………..J.       (V.S. Sirpurkar)

………………………………..J.      (R.M. Lodha)

New Delhi; May 29, 2009.