REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 951 OF 2005

Satbir Singh and Others    …. Appellants

Versus

State of Uttar Pradesh    …. Respondent  

J U D G M E N T

S.B. SINHA, J.  

1. Appellants  are before us questioning the correctness of a judgment

and order of a Division Bench of the High Court of Judicature at Allahabad

dated 4th April, 2005 affirming a judgment and order dated 23rd December,

1997 passed by the 1st Additional  Sessions Judge,  Meerut  convicting the

appellants herein under Sections 302 read with Section 149 of the Indian

Penal Code and Sections 148 and 323/149 of the Indian Penal Code and

sentencing  him  to  undergo  rigorous  imprisonment  for  life,  rigorous

imprisonment  for  two years and rigorous  imprisonment  for  three  months

respectively.  The sentences were, however, directed to run concurrently.

2. Appellants,  the deceased and the prosecution witnesses are agnates

being descendants of one Badan Singh.   

3. The genealogical chart of the family is as under :-

Badan Singh !

                            -------------------------------------------------------------------------------------                             !                                                                                                              !

Ratiram   !

Kallu     !

    ---------------------------------------------------     !                                          !                         !  

------------------------------------ !                    !                      !

 Khajan Lalsingh Mulchand Shadi Ramasrey    ! -----------------  !                     !

! ! !

! ! !

  !    !    !

Hemraj Atarsingh ! !    !     !     !

      !        !

! !

--------------------------   !               !              !

  !    !

Sachida-nandJagban-dhan  (deceased)         !         !

! ! ! ! !

Randhir (De-ceased) ! !

Sukh-bir Raghunath   !    !    !    !    !

----------------------   !                          !

! !

 --------------   !                !

  !    !

Arun  (R-5)

     Anirudh        (R-6)

! ! !

Nem Singh Sat-kumar    !    !    !

    -------------------------------------      !                             !                   !

  !    !

Dhumsingh  (now dead)      ! Virender Pal

Kaleyram      !      !      !      !

Mittan (Injured) (PW5 now dead)

  !    !    !    !    !

-----------------------------------------------------------------------      !                     !                  !                      !                      !

  !    !

Abhimanu Satyapal Jasvir Suresh-chand (Complai- nant)

Janmejai    !    !    !    !

-------------------------------------------------------------------------------   !                      !                    !                        !                !               ! Dallu Neki Baljit

  ! Hukma Lax-manTilakram  

(A-1, now dead) ----------------------------------------    !                       !                     !

  !    !

! !

Vedu  Harvir Jagmeg ---------------------- !                         !

! !

Dansahai (A-6)Dalbir (A-5) ! ! !

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  -------------------------------------------------------------------------    !                         !                    !                  !                          ! Satbir  (A-4)

Vakil (A-2) Lekhpal (A-3)Brahmpal Rajpal

4. Enmity between the two parties was a long standing one.  It started

with murder of one Laxman brother of Tilak Ram (A-1) and father of Dalbir

(A-6) as well  as Danaahai  (A-5).  Jagbandhan (deceased No.1), father of

Arun and Anirudh alongwith  10  other  persons  were  prosecuted  therefor.

Jagbandhan  (deceased No.1),  Dhum Singh (PW-7)  and Gandhari  wife  of

Ajab Singh (PW-6) were convicted, but others were acquitted in that case.

However, the High Court on an appeal preferred by the said four persons

acquitted  them.   Proceedings  under  Sections  107/117  of  the  Code  of

Criminal Procedure had also been initiated by and against both the parties.   

5. The incident in question took place on 27th November, 1997 at about

11.00 a.m.  According to the first information report which was lodged by

Suresh  Chandra  (PW-1),  at  about  10.00  a.m.  he  alongwith  his  cousin

Jagbandhan (deceased No.1) and brother-in-law Ajab Singh were working

in their fields.  Tilak Ram, Satbir, Vakil and Lekhpal were also ploughing

their field.  At that time, they started cutting soil from the ridge of their field

to which Jagbandhan objected.  To this the accused persons started abusing

him.   Randhir (deceased No.2) intervened.    Tilak Ram (A-1) and his three

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sons Satbir (A-4);  Valil  (A-2) and Lekhpal (A-3) left  the field extending

threats.  They returned with Dalbir (A-5) ; Dansahai (A-6)  and Harvir (A-

7).   

6. Accused  Tilak  Ram, Dalbir  and  Harvir  were  armed with  ballam ;

Vakil and Lekhpal were armed with Balkari and Satbir and Dansahai were

armed with Bhala.  Deceased No.1 Jagnandhan was smoking a ‘Hukka’ at

that time.  He was assaulted by the accused persons in presence of Suresh

Chandra (PW-1), Mithan (PW-5) and Ajab Singh (PW-6).  PW-5, Mithan is

also an injured eye witness.   

7. Ajab  Singh  (PW-6),  Sachitanand  and  Janmajay,  upon  hearing  the

cries,  ran  towards  the  scene  of  occurrence.   Accsued  Satbir,  Vakil  and

Lekhpal chased them.  They fled and took shelter in the field of Bakhty.

Mithan  (PW-5),  who was  working in  his  field  was  also  attracted  by the

noise.  They intercepted him.  Satbir assaulted him with Bhala.  Meanwhile

Tilak Ram reached there and asked the accused persons to leave him and

proceed to the village to do away with Randhir.  Accused persons therafter

went towards the Village.  Randhir was sitting on his cot in his ‘gher’.  His

wife Kishan Devi (PW-4) was cleaning the buffalo.  On seeing the accused,

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Randhir (deceased No.2) tried to run away to save his life but was chased,

surrounded  and assaulted  by the  accused persons.   He died  on  the  spot.

Upon being informed by Mithan (PW-5) that accused had gone towards the

village to do away with Randhir they rushed towards the ‘gher’ of Randhir

where they were told about the occurrence.  

8. We may place on record tat accused Tilak Ram (A-1) has since died.  

9. Prosecution  examined  five  eye  witnesses  i.e.  PWs.  1,  5  and  6  in

relation to the first incident i.e. murder of Jagbandhan (deceased No.1) and

PW-4 and PW-7 in relation to the second incident i.e. murder of Randhir

(deceased No.2).  Sachitanand and Janmajay were, however, not examined.   

10. Police station Dodhar is situated at a distance of about 2 miles from

the place of occurrence.   First information report was lodged at about 1.15

p.m.  

11. Postmortem report shows that Jagbandhan suffered nine anti mortem

injuries which are as under :-

“1. Incised wound 13 cm x 1/2 cm x brain deep on the right side of scalp, 10 cm from right ear and

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1/4 cm. from root of the nose. Dark clotted blood was present and brain matter had come out from the wound.

2. Five punctured wound on right cheek of average size 1 cm x 1.5 cm x thickening of cheek, fracture of right mandible in the area of 9 cm x 3 cm.

3. Incised wound with margins clean cut on right side  back  of  scalp,  3  cm x  1  cm x  bane  deep, oblique in direction, 3 cm behind right ear.

4. Incised wound with clean cut margins on right side neck back, 4 cm x 1.5 cm x muscle deep, 3 cm below injury No. 3.

5. incised wound with clean cut margins on right shoulder  upper  and  anterior  side,  6  cm x  3  cm, extending  upto;  the  outer  part  of  right  clavicle bone

6. Incised wound with clean cut margins,  6 cm x 2-1/2  cm x  2  cm on  right  shoulder  just  behind injury No. 5

7. Contusion 6 cm on the right arm anterior side 6 cm below injury No. 5.

8. Punctured wound 1-1/2 cm x1/2 cm x 3 cm on the back of left forearm.

9. Abrasion 3 cm x 1/2 cm on the back of right hand. 4 cm below right wrist joint.”

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Deceased Randhir suffered nineteen anti mortem injuries which are as

under :-

“1. Incised wound with clean cut margins 14 cm x 3 cm x brain on the right side scalp from back of right ear.  The brain mater had come out.  

2. Incised wound with clean cut margins, 7 cm x 2 cm x bone deep on right side scalp extending upto the upper right ear.

3.  Semi-circular  incised  wound  with  clean  cut margins 4 cm x 2 cm x bone deep on left  upper part of scalp 9 cm above left ear and 19 cm from left eye brow.

4. Incised wound with clean cut margins 6 cm x 1/2 cm x bone deep 2-1/2 cm above and behind left ear.

5. Deep incised wound with clean cut margins 13 cm x 4 cm x bone deep on right  side face from right eye inner side cutting the nose on right side and upper lip on right side. The under lying bone and teeth were visible.

6. Incised wound with clean cut margins 2 cm x 1/2 cm x bone deep on right side cheek just below the right eye.

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7. Incised wound with clean cut margins 3 cm x 1 cm x  bone  deep  on  right  side  inner  part  of  eye brow.

8.  Clean cut  incised wound on the right  side on chin 5 cm x 1 cm x bone deep with fracture  of mandible right side.

9. Abrasion on left side chest 1-1/2 cm x 1 cm x 5 cm above and inner to left nipple.

10.  Punctured  wound  on  right  anterior  side  of chest  1/2 cm x 1 cm 11-1/2 cm below the right nipple.

11.  Contusion  8  cm x  1/2  cm on  the  right  arm upper part 9 cm below right shoulder joint.

12. Lacerated wound 2 cm x 1 cm x 1/2 cm on the right  arm lower  part  anterior  side just  above the right elbow joint.

13.  Abrasion 1/2 cm x 1/2 cm on the back right arm 8 cm above the right elbow joint.

14. Lacerated wound 3 cm x 1/2 cm x skin deep on inner part of right index finger near base.

15. Clean cut incised wound 3 cm x 1/2 cm x skin deep on back of left forearm 7 cm above left wrist joint

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16. Two incised wound of average size x 1/2 cm x skin deep on the left palm inner side near left wrist Joint

17. Lacerated wound 2 cm x 1/2 cm x skin deep on the outer side of right leg, 10 cm above right ankle joint.

18. Incised wound 2 cm x 1/2 cm x skin deep on the outer side of right leg 10 cm above right ankle joint

19. Punctured wound 1/2 cm x 1/2 cm x 1 cm on the back side of right leg above ankle joint.”

12. Whereas  other  appellants  raised  a  plea  of  denial  of  occurrence

Harveer;  A-7  raised  the  plea  of  alibi.   In  order  to  prove  the  same two

defence witnesses were examined to show that on the date of occurrence he

had gone to Budhana in the morning at 7.00 a.m. to encash a ‘parchi’ issued

by Sugar Mill towards the supply of sugarcane. According to him the said

‘parchi’ was not encashed on that day and he returned to the village at about

5.30  p.m.   D.W.1  Omkar  Singh  was  examined  to  prove  the  said  fact.

D.W.2  Kuldeep  Chand  is  Cane  Accountant  at  Khatauli  Sugar  Mill.

According to the said witness in the sugar Mill's register payment made to

Pitam Singh was recorded.

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13. The  first  part  of  the  prosecution  case  leading  to  the  murder  of

Jagbandhan was proved by Suresh Chand (PW-1) ; Mithan (PW-5) and Ajab

Singh  (PW-6).   The  second  part  of  the  occurrence  resulting  in  death  of

Randhir was proved by his widow Kishan Devi (PW-4) and Dhum Singh

(PW-7).   

14. Both the learned trial judge as also the High Court totally relied upon

their testimonies.  The learned trial court as also the High Court disbelieved

the plea of alibi of Harveer, accused No.7.   

15. Before the High Court as also before us it was contended:-  

(a) Prosecution  having  not  examined  any  independent  witness,  the

judgment of conviction cannot be sustained.   

(b) In view of the statement made by PW-4 that Randhir had taken meal

at about 12.00 – 1.00 noon and thereafter went towards fields and the

autopsy surgeon having found 300 gms. of semi digested food, the

prosecution story that the occurrence took place at about 11.00 a.m.

should  not  be  believed  as  ocular  evidence  runs  contrary  to  the

medical evidence.  

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(c) No overt act on the part of Dan Sahai, Dalbir and Harveer, A-5 to A-7

having  been  alleged  in  respect  of  both  parts  of  the  incident,  the

prosecution  cannot  be  said  to  have  proved  existence  of  common

object amongst the accused persons so as to invoke Section 149 of the

Indian Penal Code.   

16. Mr. Sushil Kumar, learned senior counsel appearing on behalf of the

appellants,  would  furthermore  draw  our  attention  to  some  subsequent

events.

According to learned counsel on or about 8th July, 2000 at about 8.00

a.m. Jagmeg, brother of Harveer (A-7) was murdered.  In connection with

the said case Jagmeg son of Kaley Ram (brother of PW-1, Suresh Chand,

Anirudh and Arun, both sons of Jagbandhan-deceased and other members of

their family were made accused.  The First Information Report lodged in

connection with the said incident was registered as FIR No.138/2000 under

Sections 147, 302, 149 of the Indian Penal Code.  

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The other  villagers  attempted reconciliation  between the parties.  A

Panchayat was convened on 21st March, 2005 and allegedly a compromise/

settlement has been arrived at amongst the parties, pursuant whereto or in

furtherance whereof the accused did not support the prosecution case and all

the accused named in the said FIR 138/2000 giving rise to Session Trial

No.38 of 2002 (prosecution witnesses herein) were acquitted.   

17. Before us an application being I.A. No.6979 of 2005 for impleading

Suresh  Chand  (PW-1),  Sat  Kumar  and  Nem  Singh,  sons  of  deceased

Randhir and Arun & Anirudh sons of deceased Jagbandhan has been filed.  

18. Another application being I.A. No.4945 of 2005 has also been filed

purported to be in terms of Order 47 Rules 1 & 6 of the Supreme Court

Rules for acceptance of the said settlement between the parties.  

19. Mr.  R.K.  Dass,  learned  senior  counsel  appearing  on  behalf  of  the

State, on the other hand, would support the judgment.  

20. Before adverting to the maintainability of the said two interlocutory

applications, we may advert to the merit of the matter.

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21. The fact that the parties are related is not in dispute.  The homicidal

nature  of  death  of  Jagbandhan  and  Randhir  is  also  not  in  dispute.   The

occurrence started as the accused were said to be cutting soil from the ridge

of their field to which deceased No.1, Jagbandhan, objected.  The deceased

Randhir also intervened.  All the accused persons then went to the village

and came variously armed.  They not only assaulted Jagbandhan but after

his  death  they  went  back  to  the  village  and  done  away  with  Randhir.

Evidence of the informant, PW-1, Suresh Chand, was supported in material

particulars by PW-5, Mithan, who is an injured eye witness.  He was taken

to the primary hospital.  He was given treatment there.   

22. It was urged that Dr. R.K. Sharma, who examined himself as PW-9 in

cross-examination stated that injury on the person of Mithan (PW-5) can be

a self-inflicted one.

We may notice that Mithan (PW-5) was examined on 28th January,

1977.  According to the said doctor the injury on his person could possibly

be caused on 26th January, 1977 with a sharp ballam stating :-

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“3. Scratch can be superficial also and it can be skin deep also.  If it is skin deep then it is called wound.  I cannot tell corectly the thickness of skin of wrist joint.  I cannot tell if thickness can be 1/10 (illegible).  The witness said again that it cannot be so les.  If any heavy weapon rubs off then such injury can be caused.  If edge of ballam rubs off then such injury can be caused., tattooing can be caused.   This  injury  could  be  caused  with  any sharp weapon.  It  could be self-inflicted.   In my estimation  of  period  of  injury,  it  could  be  3-4 hours more or less.  This is wrong this difference could be 10-12 hours.”       

We do not  see  any reason  to  disbelieve  the medical  evidence  that

(PW-5) Mithan suffered an injury. If he was an injured witness his presence

at the place of occurrence cannot be doubted.  Even otherwise his evidence

inspires confidence and has rightly been accepted by both the courts below.

Similarly evidence of Ajab Singh (PW-6) also is reliable.  

Opinion of the doctor that the injury may be a self inflicted one is not

of much significance.

23. The second part of the prosecution case has been proved by Dhum

Singh  (PW-7)  and  Kishan  Devi  (PW-4)  widow of  Randhir.   PW-7  was

sitting  on  the  roof  of  his  house.   According  to  him,  seeing  the  accused

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persons  Randhir  tried  to  run  away  but  was  surrounded  by  the  accused

persons  and  was  murdered.   He  furthermore  stated  that  the  widow  of

deceased Kishan Devi and Harbai were present there.  Presence of Kishan

Devi at the place of occurrence was natural.  That Dhum Singh (PW-7) had

been living near the gher of the deceased is neither denied nor disputed.  He

otherwise is an independent witness.   

24. The long standing enmity between two branches of the same family

stands admitted.  It is, therefore, unlikely that other villages would come to

depose in favour of one of the parties or the other.  

25. It  is  now  a  well  settled  principle  of  law  that  only  because  the

witnesses are not independent ones may not by itself be a ground to discard

the prosecution  case.   If  the prosecution  case has  been supported by the

witnesses  and  no  cogent  reason  has  been  shown  to  discredit  their

statements, a judgment of conviction can certainly be based thereupon.

26. Furthermore, as noticed hereinbefore, at least Dhum Singh (PW-7) is

an independent  witness.   He had no  animus  against  the  accused.   False

implication  of  the  accused  at  his  hand  had  not  been  suggested,  far  less

established.   

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27. We may now examine the question as to whether the ocular evidence

is  in  variance  with  the  medical  evidence  as  stomach  of  the  deceased

contained  undigested  food.   The  materials  brought  on  record  by  the

prosecution shows that deceased Randhir had taken his food at about 10.00

a.m.  The occurrence took place at about 11.30 a.m   Digestive process, as is

well known, depends upon the nature of the food.  This Court in Shivappa

and Ors. v.  State of Karnataka,  [(2008) 11 SCC 337] while dealing with a

similar contention, held as under  :-

“13. The High Court, however, opined that in view of  the  evidence  of  the  doctor  that  the  death occurred within 24 hours of the time of the post- mortem,  the  variation  between  the  medical evidence and the testimony of the eye witnesses is not such which would lead to a conclusion that the prosecution case was not  correct.  We agree with the said view.

In  Modi's  Medical  Jurisprudence,  p.  185,  it  is stated  that  so  far  as  the  food  contents  are concerned,  they  remain  for  long  hours  in  the stomach  and  duration  thereof  depends  upon various factors.

14. In Main Pal and Anr. v. State of Haryana and Ors.  (2004) 10 SCC 692 , this Court held:

If  the  eyewitnesses'  version,  even  though  of  the relatives, is found to be truthful and credible after

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deep  scrutiny  the  opinionative  evidence  of  the doctor cannot wipe out the effect of eyewitnesses' evidence.  The opinion of the doctor  cannot have any binding force and cannot be said to be the last word  on  what  he  deposes  or  meant  for  implicit acceptance.  On  the  other  hand,  his  evidence  is liable to be sifted, analysed and tested, in the same manner  as  that  of  any other  witness,  keeping  in view only the fact that he has some experience and training in the nature of the functions discharged by him.

15.  Indisputably,  a  large  number  of  factors  are responsible  for drawing an inference with regard to  digestion  of  food.  It  may  be  difficult  if  not impossible to state exactly the time which would be taken for the purpose of digestion.  

28. Evidence of Kishan Devi (PW-4) that her husband had taken his meal

at 12.00 – 1.00 noon must be considered having regard to the fact that she is

an illiterate woman.  Her deposition to that effect must be considered upon

taking a holistic view of the matter.   

29. The distance between the place of occurrence and the police station is

said to be two miles. Two deaths had taken place.  There was an injured

person.   First  information  report  was  lodged  at  1.15  p.m.   If  the  first

information report could be lodged at 1.15 p.m., the occurrence could not be

said to have taken place after 1.00 p.m.   

30. The entire incident took place in three phases, namely –  

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(a) quarrel at the field ;

(b) accused persons going to the village, coming back to the field and

killing Jagbandhan and injuring Mithan ; and

(c) going back to the village and assaulting Randhir.

It must have consumed some time.   

31. We must also bear in the mind the number of injuries found on the

persons of both the deceased.  Jagbandhan had nine injuries on his person

whereas the number of injuries  on the person of Randhir were nineteen..

The first  information report having been lodged almost immediately after

the occurrence,  we do not  think that  the prosecution case is  tainted with

falsehood.  It would be almost well nigh impossible to implicate so many

persons falsely and that to attribute specific overt acts on the part of each of

the accused.   

Contention of Mr. Sushil Kuamr that the Investigating officer did not

examine some of the witnesses on 27th January, 1997 cannot be accepted for

more than one reason,  firstly because the delay in the investigation itself

may not benefit  the accused ;  secondly because the Investigating  Officer

(PW-8) in his deposition explained the reasons for delayed examination of

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the witnesses.  According to him, after preparation of the inquest report he

was busy in searching for the accused persons and thus could not record the

statement of Dhum Singh.   

So far as non-examination of PW-5 is concerned, he stated :-

“13. The  weapons  used  in  the  incident  are  not mentioned  in  inquest  report.   At  the  time  of writing inquest report, I had come to known that Dhumsingh  was  eyewitness.   Eyewitness  can  be witness  of  inquest  report,  therefore,  I  made him witness  in  inquest  report.   Dhumsingh  was directed to remain in village because his statment was to be recorded.

14. Statement  of  witness  Mitthan  was  not recorded by me at the field because Panchyatnam of  Randhir  was  to  be  prepared  and  search  of accused  persons  was  to  be  conducted.   After preparing site plan I went to village immediately. I  did not  give any instruction to Mitthan that  he should remain in the village as his statement is to be recorded. The entry regarding injury on his arm was recorded in case diary at the field itself.  He sustained wound.  It  is  incorrect  to state  that  he had sustained little abrasion.  I did not send him for medical examination from the field because I had  few  accused  persons  and  I  could  not  find him.”  

This Court in Ranbir v. State of Punjab, [(1973) 2 SCC 444] repelled

a similar contention stating :-

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“…..The fact of delayed examination of Tota Ram should,  in  our  opinion,  have  been  put  to  the investigating officer so as to enable him to explain the undue delay, if any, in examining Tota Ram. The  question  of  delay  in  examining  a  witness during  investigation  is  material  only  if  it  is indicative and suggestive of some unfair practice by  the  investigating  agency  for  the  purpose  of introducing a got-up witness to falsely support the prosecution case.”

Yet  again  in  Bodhraj v.  State  of  J&K,[  (2002)  8  SCC 45]  it  was

held :-  

“33. Another  point  which  was  urged  was  the alleged  delayed  examination  of  the  witnesses. Here again, it was explained as to why there was delay.  Important  witnesses  were  examined immediately.  Further  statements  were  recorded subsequently.  Reasons  necessitating  such examination were indicated. It was urged that the same  was  to  rope  in  the  accused  persons.  This aspect has also been considered by the trial court and the High Court. It has been recorded that there was  a  valid  reason  for  the  subsequent  and/or delayed  examination.  Such  conclusion  has  been arrived at after analysing the explanation offered. It  cannot  be  laid  down  as  a  rule  of  universal application  that  if  there  is  any  delay  in examination  of  a  particular  witness  the prosecution  version  becomes  suspect.  It  would depend  upon  several  factors.  If  the  explanation offered  for  the  delayed  examination  is  plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion.”

32. We may place  on  record  that  in  regard  to  the  purported  delay  of

examination of PW-6, no question was put to the Investigating Officer.   

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33. Mr. Sushil Kumar would urge that in the inquest report the name of

the accused persons had not been mentioned.  In our opinion that in law it

was not necessary to do so.  The inquest report is prepared for the purposes

mentioned  in  174  of  the  Code  of  Criminal  Procedure  and  not  for

corroborating the prosecution case.  In  Pedda Narayana v.  State of A.P.,

[(1975) 4 SCC 153] this Court has held :  

“11. A  perusal  of  this  provision  would  clearly show  that  the  object  of  the  proceedings  under Section  174  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 appears  to  us to  be foreign to  the ambit and scope of the proceedings under Section 174.”

Yet again in George v. State of Kerala, [(1998) 4 SCC 605] it was

held :-  

“31. The  whole purpose  of  preparing  an inquest report under Section 174(1) Cr PC is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the  body  of  the  deceased  and  stating  in  what manner, or by what weapon or instrument, if any, such  wounds  appear  to  have  been  inflicted.  In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of

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the  Investigating  Officer  to  investigate  into  or ascertain who were the persons responsible for the death.”  

34. If all  the witnesses could not attribute specific roles to each of the

accused,  the  same in  our  considered  view,  is  natural.   If  seven  persons

armed  with  various  weapons  attack  a  person,  the  witnesses  who  were

sanding at some distance may not be able to attribute specific role to each of

the accused persons.  

35. Mr. Sushil Kmar would urge that whereas Satbir, Vakil and Lekhpal,

appellant Nos. 1 to 3, may be placed in one group and Dan Sahai and Dalbir

sons  of  Lakshman and Harveer  (appellant  Nos.4  to  7)  on  the  other,  the

members of the second group did not show any common object with the

members of the first group.  It may be that they were not the persons who

had  committed  overt  acts  when  Jagbandhan  objected  to  the  factum  of

cutting  of  the  ridge.   But  each  one  of  them came  back  with  the  other

accused.  They were armed with deadly weapons.  They were present, even

though might not have actually assaulted Jagbandhan.  They left the place

stating that they would kill Randhir. Both PW-4 and PW-7 stated that all the

accused had taken part in assaulting Randhir.  Their statements are credit-

worthy as Randhir suffered as many as 19 injuries.  Randhir was chased and

surrounded before he was assaulted.   

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36. We, therefore, are of the opinion that the prosecution has been able to

establish the existence of common object amongst all the accused persons.   

37. So far as  the  interlocutory applications  are concerned,  suffice  it  to

point out that having regard to the provisions contained in Sections 320 and

321 of the Code of Criminal Procedure, 1973, an offence under Section 302

of the Indian Penal Code is not compoundable.  Appellants were prosecuted

for committing two murders and injuring one.  Maintenance of rule of law is

the prime duty of the State.  In violation of the statutory provisions, except

in some marginal cases, the court shall not allow composition of offence.  If

parties have settled their disputes they may live in peace in future but the

same by itself cannot be a ground to pass a judgment of acquittal.   

38. We, therefore,  do not find any reason to allow the applications for

impleading of Suresh Chand and others  for the purpose of  recording the

compromise/settlement in exercise of our jurisdiction under Order 47 Rules

1  and  6  of  the  Supreme  Court  Rules,  which  in  our  opinion,  has  no

application to the present case.  The applications are accordingly dismissed.

39. In the result this appeal fails and is dismissed.   

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       ….………………………..J.

[S.B. Sinha ]   

      ….………………………..J.

       [Dr. Mukundakam Sharma]

New Delhi February 25, 2009     

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