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PETITIONER: SMT. LAKHIYA DEVI, GIRJA YADAV & ORS.

       Vs.

RESPONDENT: GIRJA YADAV & ORS., THE STATE OF BIHAR

DATE OF JUDGMENT:       14/07/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.407 OF 1987                       J U D G M E N T NANAVATI J.      Both these  appeals arise out of the judgment and order passed by  the Patna  High Court in Criminal Appeal No.43 of 1982. Lakhiya  Devi, mother  of  deceased  Chander  and  the informant in  this case. has filed Criminal Appeal No.109 of 1689. as  the High  Court partly allowed the appeal filed by the accused  and set  aside the  conviction of  the accused. other than  accused  Budhai  under  Section  326  read  with Section 149  IPC and  that of  Budhai under Section 325 read with 149  IPC and also because the High Court discharged the noticed issued by it whereby the accused were called upon to answer why  their conviction  should not  be altered  to one under Section  302 read  with Section   149  IPC and why the sentence imposed  upon them should not be enhanced. Criminal Appeal No.407  of 1989  has been filed by the accused as the conviction by  the trial court under Section 201 IPC and the sentence imposed for that offence have been confirmed.      The prosecution  case was that during the night between 6th and  7th April, 1976 Chander Yadav was at his ’Khalihan’ situated at  a little  distance from the village. At about 6 O’clock in  the morning,  he came  running to  his house and after getting  the main entrance door opened, he want into a small room where foodgrains used to be stored and closed its door from  inside. By  that time, about 20 persons including the 16  accused came  there  running.  The  assailants  were either armed  with sticks  and sharp  weapons. As  they  saw Chander taking  shelter in  that small  room and closing the door. some  of them  climbed over  the roof  to make a whole therein and  to get  inside that room. Others tried to break open the door of that room. The assailants who had gone over the roof  were able  to make  a hole therein and jump inside that room.  By that  time the remaining assailants were also able to  break open  the door.  All of  them then  assaulted Chander and committed his murder. Then they started carrying away the  dead body  by dragging  it. Lakhiya  Devi tried to prevent them  from carrying  away the  dead body by catching hold of  it but accused Saudagar pushed her away by giving a

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kick on  her chest.  When her  daughter-in-law  Shanti  Devi tried to prevent them from taking away the dead body she was also  pushed  aside  and  threatened.  The  assailants  then carried the  dead body  of Chander with them by scaling over the western  boundary wall  of his house and were proceeding towards the  west of  the village.  At that  time two police constables, Shanker Dayal and Kapil Kumar, on being informed about what had happened, ran after the assailants. On seeing the two  policemen the  assailants started  running away but the policemen were able to apprehend four of them. They were Doman, Brahmadeo, Puna, (since deceased) and Jai Nath. After some time  a Sub-Inspector  of  Police  of  Akbarpur  Police Station happened to arrive in the village and on hearing the commotion went  near the  house of  Chander and came to know about the  incident. He  recorded Fard beyan of Lakhiya Devi in the  village at  about 9.30 A.M. and on the basis thereof an offence  was registered  against 19  persons. During  the pendency of the trial two accused Jagdish and Puna died and, therefore, the  trial proceeded  against  the  remaining  17 accused. It  was alleged  against all  of them that they had committed the  murder of  Chander in  prosecution  of  their common object and because of the previous enmity.      In order  to prove  its case the prosecution had mainly relied upon  the evidence  of 6  eye-witnesses and  the  two police constables  who had  apprehended  the  above-named  4 accused. the  accused and  also examined  7 eye-witnesses in defence and  that was mainly for the purpose of establishing the plea of alibi.      The trial  court believed  the  evidence  of  the  eye- witnesses  and  the  two  police  constables,  as  it  stood corroborated by  the find  of broken door, broken roof and a trial of  blood from the said room upto the Western boundary wall of  the house of Chander. At the same time it also held that the  eye-witnesses has  exaggerated the manner in which the deceased  was assaulted  and it  was likely that all the accused had  not taken part in beating Chander. It also held that in  all probability  the accused Doman who was 80 years old was  falsely implicated  as one  of the  persons who had participated in  the assault on Chander. Taking this view of the evidence  the trial  court further  held  that  all  the accused except  Doman were  members of an unlawful assembly, the common  object of  which was  to bear  Chander and   not cause his  death. Accordingly  it convicted  all the accused under Section  326 read  with Section  149 IPC and sentenced them to  suffer rigorous  imprisonment for  a  period  of  8 years. Budhai  was convicted  under Section  325  read  with Section 149  IPC as  he was  armed  with  a  stick  and  was sentenced to suffer R.I. for 4 years.      Aggrieved by  the conviction  the accused  preferred an appeal to  the High Court. As stated earlier, the High Court while  admitting  their  appeal  had  issued  a  notice  for alteration of  the conviction  for  the  higher  offence  of murder and also for enhancement of sentence. The High Court, on re-appreciation  of the  evidence, found that the version given by  the eye-witnesses was not supported by the medical evidence. The  eye-witnesses has  stated  that  all  the  20 assailants had  assaulted Chander but the number of injuries found on  his person  were only  eight.  Six  of  them  were incised wounds  and 2  were abrasions.  The reasoning of the High  Court   was  that   if  all   the  20  assailants  had participated in  the assault  then the number of injuries on the person  of Chander  would have been more. The High Court also held  that the eye-witnesses had exaggerated the manner in which Chander was  assaulted and killed. It observed that as the room in which Chander was killed was small all the 20

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assailants would  not have entered that room and everyone of them would not have been able to beat Chander. If all the 20 assailants had  entered that  room and wielded their weapons that would have left some marks of violence on the walls and the Kothis  (big earthen jars) which were kept in that room. The heap  of potatoes  lying in  that room  would have  been disturbed. If  the roof was cut and a whole was made therein then the  cut portion  of the  proof and  broken tiles would have been  found inside  that room but no such articles were attached by  the investigating  officer from  that room. For all these  reasons  the  High  Court  held  that  though  it believed that  Chander was  done to  death inside that room, the evidence  of the  eye-witness as  regards the  manner in which Chander  was killed could not be relied upon. The High Court,  however,   believed  their   evidence  as   it   was corroborated by  the evidence  of the  two police constables and the  trail of  blood starting  from that  room and going upto the  western boundary  of that  house and held that the accused had  then carried away the dead body of Chander from that room.  It, therefore,  confirmed their conviction under Section 201  IPC and  giving benefit of doubt to them on the ground that  Chander was  not beaten in the manner stated by the eye-witnesses,  set aside  the  conviction  of  all  the accused except  Budhai under  Section 326  read with Section 149 IPC  and that  of Budhai  under Section  325  read  with Section 149  IPC and  acquitted them  of all  other charges. Consequently the  notice  issued  for  alteration  of  their conviction  for   the  higher  offence  and  enhancement  of sentence was also discharged.      Mr. Raju Ramchandran, learned senior advocate appearing for Lakhiya  Devi contended  that the High Court committed a grave error  in acquitting  the accused  as stated above and that has  also led  to failure of justice. He submitted that the High  Court having  believed that  murder of Chander was committed inside his house in that small room, that the door of that  room was  broken open and that the accused had then carried away  the dead  body by  dragging it,  ought to have believed that  the accused  were also the murders and should have convicted  all of  them under  Section  302  read  with Section 149  IPC. On  the other hand it was contended by Mr. U.R.  Lalit.  learned  senior  advocate  appearing  for  the accused, that even though it is possible to take a different view on  re-appreciation of  the evidence, this Court should not interfere  with the  order of acquittal, as it cannot be said that the view taken by the High Court is perverse or so unreasonable as to justify interference by this Court.      As stated  earlier the  prosecution had examined 6 eye- witnesses including  Lakhiya (PW10)  to prove  that the  had committed murder  of Chander.  The trial  court believed the presence of  all these eye-witnesses. The High Court did not disbelieve it.  The reason  given by  the High Court for not convicting the  accused for  the murder  of Chander  on  the basis of  their evidence  was that  they had exaggerated the manner in  which injuries  were caused  to Chander.  We have already set  out earlier the reasons given by the High Court for taking  that view.  In our  opinion, the  High Court was wrong in rejecting the evidence of the eye-witnesses on this ground.  Moreover,   the  findings   recorded  by   it   are inconsistent inasmuch  as it  has believed  the  prosecution evidence that  after Chander  was  killed  the  accused  had carried away  the dead  body from  the house. The High Court has confirmed  the conviction  of the  accused under Section 201 IPC.  If accused  were the  persons who had carried away the dead  body of  Chander from that small room of his house then surely  they were the persons who had entered the house

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of Chander  and in all probability they were the persons who killed him.  If they  were not  the persons  who had  killed Chander then  why should  they have  gone to  his house  and dragged the  dead body from that room right upto the western boundary of  the wall  upto the  pipal tree  situated in the west of  that village.  It was nobody’s case that one set of persons had  killed Chander  and another  set of persons had carried away  his dead  body. The  High Court has completely failed to consider this aspect.      Though all  the eye-witnesses  have stated that all the accused had  participated in the assault of Chander what the High  Court  should  have  appreciated  was  that  the  eye- witnesses had  seen the  incident from  outside  that  small room. All  the accused  had come  running to  the  house  of Chander. They were armed with weapons. All of them had tried to get  inside that room and all had participated thereafter in carrying  away the  dead body  of Chander. It was in that sense that the witnesses had stated that all the accused had participated in  the  assault  on  the  deceased.  The  eye- witnesses had  not stated that each of the accused had given a blow  to Chander and that his blow had caused an injury to him. The  High Court  was, therefore,  wrong in holding that the evidence  of the eye-witnesses stood contradicted by the medical evidence on record.      The  second   reason  given   by  the  High  Court  for disbelieving the  evidence of  the  eye-witnesses  was  that looking to  the smallness  of that  room it  was not  at all likely that  all the  20 assailants  were able to enter into that room  and assault  Chander. The  size of  that room was about 11  ’ x  8. It  was,  therefore,  not  impossible,  as believed by  the High  Court, for  all the  accused to  have entered that  room. As  deposed by the investigating officer there were  only two earthen jars in that room. Not only the two flaps  of the  door of  that room  but the southern wall inside that  room had  marks caused by sharp edged articles. He had also noticed that the door was broken open. Blood had also fallen  on the  small heap  of potatoes. The High Court failed  to   take  into   consideration  this  evidence  and erroneously proceeded on the basis that no marks of violence were found  on the  inner walls of that room and that in all probability all the accused could not have entered that room as it was too small.      One more reason given by the High Court for not placing reliance upon  the evidence  of the eye-witness was that all of them  had stated that 6 accused had climbed over the room of that  room and  had cut  a hole  therein whereas  no  cut portion of  that room nor the broken tiles were found inside that room. Regarding cutting of the roof also the High Court had not  correctly appreciated  the  evidence  of  the  eye- witnesses and  the investigating  officer. All the witnesses have stated  that it  was a  thatched roof  with tiles.  The height of  that roof  was about  6’  5".  the  investigating officer had  deposed that  he had  noticed a  small  opening having been  made in  the south western portion of that roof and that  some pieces  of broken  tiles were lying near that room. That  clearly indicated  that the  accused had removed some tiles  and thrown  them on the ground outside the room. Therefore, not  finding any  cut portion of that roof or the broken  tiles  inside  that  room  was  not  a  circumstance justifying raising  of any  doubt regarding  truthfulness of their evidence.  The fact  that a  hole was made in the roof and broken  pieces of  tiles were  lying near  that room was recorded by the investigating officer. Merely because of the omission of  the investigating  officer to  seize the broken pieces of  those tiles  it was not proper for the High Court

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to draw  an inference  that the version of the eye-witnesses regarding some  of the accused having gone over the roof and made a hole therein was not believable.      Thus the  reasons given  by  the  High  Court  for  not placing reliance upon the evidence of the eye-witnesses were not proper  and sufficient.  We have  already stated earlier that the  High Court did not disbelieved the presence of all the accused  inside the  house of  Chander. In fact the High Court has  believed the  prosecution evidence that they were the persons  who had  carried away the dead body of  Chander from that  small room.  The two  police constables  who  had arrived at  the scene  of the  office immediately  after the offence was  committed were  informed about  the  manner  in which the murder was committed and by whom it was committed. Out of  those named assailants 4 were actually caught by the two constables who had chased them. Thus the evidence of the eye-witnesses, who  can be  regarded as interested witnesses because of their enmity with the accused, stood corroborated by the  evidence of  the  police  constables  and  also  the circumstances referred to by us earlier. The High Court was, therefore, not  right in discarding their evidence regarding participation of the accused in the assault on Chander.      From  the  evidence  of  the  eye-witnesses  it  stands established that  the accused  had chased Chander right upto his house,  that at  that time they were armed with weapons, that they  had entered  the house  of Chander  and  forcibly entered into the room in which Chander had taken shelter and that they  had assaulted  him. Thus they were all members of an  unlawful   assembly.  Their   subsequent  conduct   also indicates that they were members of an unlawful assembly and that whatever they had done was done in prosecution of their common object.  As the  trial court  held  that  the  common object of  that unlawful  assembly was  only to beat Chander and not  to cause his death and the order of acquittal under Section 302  read with  Section 149  IPC was  not challenged before the High Court either by the State or the information we do not consider it proper to interfere with that finding.      We, therefore  , allow  Criminal Appeal  No.109 of 1989 filed by  Lakhiya Devi,  set aside  the order  of  acquittal passed by  the High  Court of  all those  accused  who  were convicted by  the trial  court under  Section 326  read with Section 149  IPC and  restore the  order of their conviction passed by  the trial  court. We also set aside the acquittal of Budhai  under Section  325 read  with Section 149 IPC and restore the  order of  his conviction and sentence passed by the trial  court. As  the incident had taken place long time back we are of the opinion that ends of justice would be met if the  sentence of rigorous imprisonment of 8 years imposed upon the accuse (except Budhai) is reduced from 8 years to 5 years. We  dismiss Criminal  Appeal No.407  of 1987 filed by the accused  against their conviction under Section 201 IPC. As accused  Baudhu  (Respondent  No.9A  in  Criminal  Appeal No.109 of 1989 and Appellant No.10 in Criminal Appeal No.407 of 1987) died during the pendency of these appeals, they had abated qua him.