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PETITIONER: RAM MANORATH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT10/03/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1981 SCR  (3) 195        1981 SCC  (2) 654  1981 SCALE  (1)527

ACT:      Indian  Penal   Code  1860,  Ss.  302  and  149-Murders committed by  members of  an unlawful  assembly-Acquittal of some-Effect on  prosecution of  remaining-Death sentence for two and life sentence for others-Propriety of.

HEADNOTE:      Out of  twelve persons, charged with the offences under section 302  read with  section 149 I.P.C. and various other charges, eight  were convicted.  Two of  them, C  and R were sentenced to  death  while  the  others  were  sentenced  to imprisonment for  life. The  High  Court  upheld  the  death sentence of  two accused,  acquitted one  and confirmed  the conviction of others.      The case  of the prosecution was that on the day of the occurrence at  about sun-set C shot dead two of the deceased while two  others were  shot by R. The prosecution relied on the dying  declaration of  one of  the deceased and examined four eye witnesses.      In appeals  to this Court it was contended on behalf of the appellants  that the  fact that  the trial court did not find  it   safe  to  accept  the  prosecution  evidence  and acquitted five out of twelve persons mentioned in the F.I.R. at one  stage or  the other  should be sufficient to discard the prosecution  case in  respect of  the other  accused  as well.      Allowing the appeals in part, ^      HELD: 1(i).  It is difficult to hold that the witnesses had made  out an  entirely false  or concocted story against the appellants.  The circumstance  that three  of  the  four prosecution witnesses  had been injured during the course of the incident affords a strong guarantee of their presence at the scene of the occurrence. There is also no reason why the four eye  witnesses should falsely implicate persons against whom they had no grouse. [197 F-G]      (ii). The reason why the trial court and the High Court acquitted some  of the  accused was that in the case of some of them  there was a possibility of mistaken identity while, in regard  to some  others, the  evidence was  not of such a nature or  character as  to justify  the acceptance of their complexity beyond a reasonable doubt. [197 H]

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    2. One  of the  accused J  must be  acquitted  for  the reason that  though his  name was  mentioned  alongwith  the names  of   eleven  others   at  the  outset  of  the  First Information  Report,  the  text  of  that  report  does  not attribute any part to him at all. His name had been included in an  omnibus manner,  by saying  that he along with others wielded his lathi. [198 C-D] 196      3. It  is unsafe  to sentence  C and R to death. One of the deceased  implicated R  in his  dying declaration as the person, who  shot at  him but  as pointed  out by  the Trial Court itself,  the dying  declaration suffers  from  several infirmities and, it cannot therefore, be relied upon for the purposes of  holding that  it was this accused, who shot the deceased. Secondly,  the occurrence took place an hour after sun-set and it is hardly likely that if a large group of ten or twelve  persons had  formed  an  unlawful  assembly,  the witnesses would  be in a position to identify minute details of the  incident.  The  prosecution  version  in  regard  to specific overt  acts that  C and  R fired shots resulting in the fatal injuries to the two deceased seems exaggerated. No distinction can  be made  in the  case of the other accused, who have been sentenced to life imprisonment and the case of these two accused. The sentence of death imposed on them is, therefore, set aside. They are sentenced to imprisonment for life. [198 E-G, 199 B-D]      4.  The   conviction  and  sentence  of  the  remaining appellants are confirmed. [199 E]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal Nos. 345 & 346 of 1978.      Appeals by  special leave  from the  Judgment and Order dated 14.1.1978  of the Allahabad High Court (Lucknow Bench) in Criminal Appeals Nos. 496, 508 and 542 of 1977.      Frank Anthony and Sushil Kumar for the Appellant.      H.R. Bhardwaj,  G. S, Narayanan and R. K. Bhatt for the Respondent.      The Judgment of the Court was delivered by      CHANDRACHUD, C. J. Twelve persons were put up for trial before the  learned Additional  Sessions Judge,  Bahraich on various charges,  the principal  charge being  under section 302 read  with section  149 of  the Penal  Code. The learned Judge acquitted  four persons  and convicted  the  remaining eight of the offences of which they were charged. Two out of those eight  persons namely,  Chhotey and  Ram Manorath were sentenced to death while the remaining six were sentenced to imprisonment for  life. The  sentences awarded for the other offences  were   directed  to  run  concurrently  with  that sentence. The  High Court  of Allahabad  acquitted one  more person and  convicted the  remaining seven.  The High  Court also upheld  the death  sentence awarded  to Chhotey and Ram Manorath. From  out of  the seven  persons convicted  by the High Court,  only six  are before  us  since  one  of  them, Baijnath, who was awarded life imprisonment has not appealed from the judgment of the High Court. 197      The incident  out of which these proceedings arise took place at  about sunset time on December 5, 1973 in a village called Bhawanipur.  Four persons  died during  the course of that incident,  namely,  Guley,  Abbas,  Wali  Mohammad  and Nankau. Guley  and Abbas  are alleged to have been shot dead by Chhotey while the other two are alleged to have been shot

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by Ram  Manorath.  Guley  and  Abbas  died  instantaneously, Nankau a little later and Wali Mohammad about a week later.      In support  of its  case the  prosecution examined four eye witnesses: Noor Mohammad, P. W. 1, Shaukat Ali, P. W. 2, Nafees, P.  W. 4  and Naeem,  P. W.  5. The prosecution also relied on  the dying  declaration of Wali Mohammad which was recorded  by  a  Magistrate.  The  evidence  of  these  four witnesses as  also the  dying declaration have been accepted by both the Courts.      Shri Frank  Anthony, who  appears on behalf of five out of the  six appellants before us, has drawn our attention to various circumstances  which according  to  him  render  the entire prosecution  case suspect  and  unacceptable.  It  is urged by  the learned counsel that a large number of persons were roped  in on  mere suspicion which is shown by the very fact that  five out  of the 12 persons who were mentioned in the First  Information Report were acquitted at one stage or the other for the reason that it would not be safe to accept the evidence  led by  the prosecution against those persons. The same  test, according to the learned counsel, must apply to  the   cases  of   the  remaining  accused  also.  Having considered this submission and the other submissions made by the learned  counsel, we  find it difficult to hold that the witnesses have  made out an entirely false or concocted case against all  the appellants.  Out of  the four eye witnesses examined by  the prosecution, Noor Mohammad, Shaukat Ali and Nafees were  indisputably injured  during the  course of the incident in  question and that circumstance affords a strong guarantee of their presence at the scene of offence. Counsel himself urged  that there  was no motive for the offence. If that be  so, we  are unable  to understand  why the four eye witnesses should falsely implicate persons against whom they have no  grouse. The reason for the acquittal of some of the accused by  the Trial Court and the High Court is that there was, in  the case of some of them, a possibility of mistaken identity while,  in regard  to some others, the evidence was not of  such  a  nature  or  character  as  to  justify  the acceptance of  their complicity  beyond a  reasonable doubt. The injuries  received by  Shaukat Ali,  P. W.  2 are  quite serious. P.W. 4, 198 Nafees was  not concerned  with the  incident in  any  other manner because  he was  engaged as  a mere  labourer by  the deceased, Wali  Mohammad. In  so far  as the  remaining  two witnesses namely,  P.W.1 and 5 are concerned, their presence was virtually  admitted on  behalf of  the principal accused Baijnath who has not chosen to file any appeal before us.      Though this is the true position, we do not consider it proper to  accept wholly the evidence led by the prosecution without examining  the case  of each  one of the accused. In that process  we find  that the appellant Jaisee ought to be acquitted. It  is undoubtedly  true  as  contended  by  Shri Bhardwaj, who  appears on  behalf  of  the  State  of  Uttar Pradesh, that  Jaisee’s name  is mentioned in the F.I.R. and that he  has been  implicated by  all the  four  prosecution witnesses. But the difficulty which we find in accepting the case of  the prosecution against this accused is that though his name  is mentioned  along with the names of eleven other persons at  the outset  of the First Information Report, the text of  that report  does not  attribute any part to him at all. His name has been included in the text of the report in an omnibus  manner by  saying that  he, along  with  others, apart from  Chhotey and  Ram Manorath  who were  armed  with guns, wielded his lathi.      There is  one more  aspect of  the matter  which merits

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serious attention,  and that  is whether  the death sentence imposed on  Chhotey and  Ram  Manorath  must  be  confirmed. Having given  our anxious  consideration to  this  question, especially since four persons were done to death, we find it unsafe to  sentence these two accused to the extreme penalty of law.  In so  far as  Ram Manorath  is  concerned,  he  is alleged to  have shot  at Wali  Mohammad  and  Nankau.  Wali Mohammad  has   implicated  Ram   Manorath  in   his   dying declaration as  the person  who shot at him but, Shri Sushil Kumar, who  appears for  Ram Manorath,  has  very  tellingly demonstrated how  unsafe it  will be  to  accept  the  dying declaration. The learned Trial Judge has himself pointed out in paragraph  104 of  his judgment  the various  infirmities from which the dying declaration suffers. We are quite clear that the  learned counsel  is right  in cautioning the Court against  the  acceptance  of  the  dying  declaration  which suffers from the infirmities pointed out by the Trial Court. We cannot,  therefore, rely on the dying declaration for the purpose of holding that it was Ram Manorath who shot at Wali Mohammad. But  then Shri  Bhardwaj relies on the evidence of the four  witnesses and contends that the part played by Ram Manorath is established on 199 that evidence.  On that  aspect of  the matter,  we  have  a serious difficulty  in  accepting  as  its  face  value  the evidence of  these witnesses in so far as they say that they saw Chhotey  and Ram  Manorath firing shots at Guley, Abbas, Wali Mohammad  and Nankau.  It  may  be  recalled  that  the incident occurred  on December 5, 1973 and the almanac shows that the  time of  the sunset  on that day was 5.13 p.m. The incident happened  nearly an hour after the sunset and it is hardly likely that if a large group of ten or twelve persons had formed an unlawful assembly, the witnesses would be in a position to  identify minute  details of the incident. There is not  the slightest  doubt that the four persons, who died during the  course of the incident in question, were done to death by  persons who were members of the unlawful assembly, some of  whom have been convicted by the trial court and the High Court.  But we  are unable  to accept  the  prosecution version which,  in  regard  to  specific  overt  acts  seems exaggerated, that  Chhotey and  Ram Manorath fired the shots which resulted  in the  fatal injuries.  No distinction can, therefore, be  made in  the cases  of the  other persons who have been  sentenced to  life imprisonment  and the cases of these two  persons. We  must, therefore, set aside the death sentence imposed upon them.      The result  is that the appeals are partly allowed. The appellant Jaisee  is acquitted  of all the offences of which he was  charged and  he shall  be released  so  far  is  the present case  is concerned.  The  conviction  of  appellants Chhotey  and  Ram  Manorath  for  the  various  offences  is confirmed but the sentence of death imposed upon them is set aside. We  sentence  them  to  imprisonment  for  life.  The conviction and  sentence of  the  remaining  appellants  are confirmed. N.V.K.                               Appeals partly allowed. 200