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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: PASHUPATI SINGH & ANR. & VICE VERSA

DATE OF JUDGMENT24/09/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. KHANNA, HANS RAJ

CITATION:  1973 AIR 2699            1974 SCR  (1) 742  1974 SCC  (3) 376  CITATOR INFO :  R          1974 SC 799  (15)  F          1974 SC1039  (6,12)  E&D        1989 SC1335  (60)

ACT: Criminal Law--Practice and procedure--Whether identification chart should contain a complete statement.

HEADNOTE: The  two  deceased,  husband  and  wife,  along  with  their daughter and servant were travelling by train.  At a wayside station  the  two appellants and another  co-accused,  still absconding, got into the compartment armed with deadly  wea- pons.   The husband and wife were robbed and in the  scuffle that  followed both were fatally injured.  After the  arrest of the, accused they were identified by the daughter and the servant of the deceased.  The accused were convicted by  the trial  court  for the offences under sections  394  and  302 I.P.C. The  High  Court,  holding  inter alia,  that  in  the  test identification chart there was no specific mention about the assault  by  the  first  accused on  one  of  the  deceased, acquitted  both  the  accused of the offence  under  s.  302 I.P.C. Dismissing the appeal of the appellants with respect to  the offence under s.   394  and allowing the appeal by the State with  respect to the offence under s. 3 02. HELD  : The use made by the judges of the High Court of  the test   identification   chart   was   faulty.    The    test identification chart would not and could not be expected  to contain a complete statement.  The two accused were identified by the two    eye-witnesses  and they both  spoke of the attack on one of the deceased by the second  accused. It could not however,be said that the first accused did  not cause  injuries to anybody or that nobody caused any  injury to the other   deceased.   The High Court also did not  find that the first accused did not cause any injury to either of the deceased.                  [745E] If it was difficult to say which injury was caused by  which of the accused, the natural inference would be that all  the

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three  accused  caused  one  injury  each  on  each  of  the deceased.  As the injury caused by the weapons in the  hands of the two accused were such as were enough to cause  death, the  two  accused were equally guilty of murder.   The  fact that  they  could  not have started with  the  intention  of committing  murder but only to commit robbery was not  rele- vant.   The injuries were sufficient in the ordinary  course of  nature to cause death and, therefore, the accused  would be guilty of murder.                        [745 G-B] Considering  the  fact that there had been a  long  interval between the date of the offence and dismissal of the  appeal and  the mental agony undergone by the accused, the ends  of justice would be met if sentence of life imprisonment was award. [746B]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  Nos.  53 and 54 of 1970. Appeals  by special leave from the judgment and order  dated the  15th October, 1969 of the Patna High Court in  Criminal Appeals Nos. 150, 152 and 167 of 1969. U.   S. Prasad, S.K. Sinha, B. B. Sinha and D. P.  Mukerjea, for  the  appellant  (in appeal 53/70)  and  respondent  (in appeal 54/70). U.   P.  Singh,  for the respondent (in  appeal  53/70)  and appellants, (in appeal 54/70). 743 The Judgment -of the Court was delivered by- ALAGIRISWAMI,  J.  The two appellants in Crl.  A. N.  54  of 1970,  were  tried before the Additional Sessions  Judge  of Bhagalpur  for offences under ss. 302 and 394 of the  Indian Penal Code and convicted by him for both the offences.  On a reference   made  by  the  Additional  Sessions  Judge   for confirmation  of the death sentence awarded to them and  two appeals filed by them, the High Court of Patna upheld  their conviction  under s. 394 but acquitted them of  the  offence under  section  302.  The accused as well as  the  State  of Bihar  have appealed to this.  Court, the former in  respect of their conviction under S. 394 and the State against their acquittal  in  respect of the offence under  S.  302.   The, facts giving rise to these appeals are as follows : Ram  Prasad  Mandal,  a  resident  of  Bhagalpur,  his  wife Rukmini. and their daughter Pushpa Devi were returning  from Vellore, where the daughter under-went treatment.  They were travelling  from.   Calcutta  to  Bhagalpur  by  the  Howrah Danapur Fast Passenger oil 6-4-1965.  They were  accompanied by  their servant Mohan Lal. (P.W.1). At  Pirpainty  railway station appellant Pashupati Singh entered their  compartment and when the train reached Ghogha railway station  appellant Sutali  Rai  and another accused, now absconding,  got  into that  compartment.   The two appellants had Gupti  in  their hands.   After some time the absconding accused took  out  a Chura  and asked Ram Prasad Mandal to give him  whatever  he had.   Appellant  Pashupati Singh stood near Mohan  Lal  and Sutali  Rai  near Rukmini Devi.  Ram Prasad  Mandal  offered whatever  he  had  but  tried  to  catch  the  hand  of  the absconding   accused.   Thereupon  all  the  three   accused attacked  Ram  Prasad Mandal who fell  down.   Rukmini  Devi asked them not to assault and took out her churies from  one hand  and handed over to one of the accused.   Her  necklace was snatched by one of the three accused and when she  tried to pull the alarm chain all the three assaulted her with the

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weapons  in their hands and she also fell down.   Mohan  Lal who  tried  to  intervene  was assaulted  with  a  Gupti  by Pashupati  Singh and relieved of his wrist watch and  rupees fifty  or sixty, which he had.  Pushpa Devi handed over  her ornaments.   The miscreants thereafter pulled the chain  and got out of the train.  When the train stopped, Fireman Abdul Aziz (P.W.8) came to the compartment and found Pushpa crying and  Ram Prasad Mandal and Rukmini Devi lying injured.   The Guard  (P.W.10)  also  came, there.   At  the  next  railway station Sabour the Assistant Station Master (P.W.5)  advised them  to go to Bhagalpur as there would be delay in  getting medical  aid at Sabour.  He also informed Bhagalpur  railway station.  The train reached Bhagalpur at about 1.15 A.M.  on 7-4-1965.  P.W.10 handed over a written memo, Ext.2, to  the Officer-in-charge Railway Police, on the basis of which  the first  information  report was drawn up by P.W.12  at  about 1.45  A.M.  By  this time Ram Prasad  Mandal  was  dead  and Rukmini  Devi was in a serious condition.  All of them  were sent to the hospital where Rukmini Devi died at 6 A.M.  The- appellant  Sutali Rai surrendered on the 10th of  May,  1965 while  Pashupati  Singh was arrested on the,  11th  of  May. 1965.   In the test indentification parade held on the  24th of May, 1965 Mohan Lal and 744 Pushpa Devi identified both of them.  In due course a charge sheet was laid against both of them with the result  already mentioned. Pashupati Singh’s defence was that he was innocent, that the two .eye witnesses had opportunities to know him before  the occurrence  .and that he had been shown to them  before  the identification parade.  Sutali Rai also alleged that he  had been  shown to the identifying witnesses.  We are  satisfied that  the conclusion arrived at by the courts  below  found. If  as alleged by Pashupati Singh, PWs I and 2 and they  had properly  identified  the assailants, is based on  a  proper appreciation of the evidence.  We shall later deal with  the question  .as  to the offence of which the  appellants  were acquitted. A number of suggestions, some of them even contradictory  of each other, and none of them in any way seriously  affecting the  veracity  of PWs I and 2, were put forward  before  the courts below as well as before this Court.  We find them all devoid  of substance just as the courts below found.  If  as alleged  by  Pashupati  Singh, PWs I and  2  had  known  him earlier  there  was  hardly any need to show  him  to.  them before  the identification parade.  What is more, PWs 1  and 2,  if  they had known Pashupati Singh earlier,  would  have informed  the police, that they knew one, of the  assailants and  could identify him though they did not know  his  name. That  was not the case here.  There is no motive either  for PW  I or PW 2 falsely implicating the  appellants.   Nothing which can shake their credibility has been elicited in their cross-examination.   Very  vague and wild  suggestions  were made  ,about  the possibility of Rain Prasad  Mandal  having been  murdered by his nephew Tarkeshwar Prasad;  that  there had  been an attempt on the life of Ram Prasad Mandal’s  son and  the  same  person  might  have  been  responsible   for murdering  Ram  Prasad Mandal; that Ram  Prasad  might  have killed  him on that account.  There is no substance  in  any one of these suggestions.  It was also suggested that  Mohan Lal  was  not in the compartment when  the  occurrence  took place, as Tarkeshwar Prasad who is -,aid to have sent  money through  him to Calcutta was not examined and  nobody  else, spoke  of  his leaving for Calcutta Some argument  was  even sought  to be made on the basis of the presence of only  two

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holdalls and of the impossibility of Pushpa Devi having  sat on  Mohan Lal’s holdall.  There can be no doubt  that  Mohan Lal  was  present  in the compartment at the  time  of  the, occurrence.   It  was  not even put to Pushpa  Devi  in  her cross-examination  that Mohan Lal was not present.  Nor  was such  a suggestion put to Mohan Lal.  We consider  that  the evidence clearly establishes that it was the two  appellants and  the  absconding accused who were  responsible  for  the robbery and the murders committed on the train. We  do not think it necessary to refer at length to all  the evidence ’in this case or all the points that were raised in the course of the arguments as we do not consider that  they in  any way weaken the findings of the courts below  on  the central  point about -the robbery and the murders  and  this Court  does not normally re-appraise the evidence except  in cases of gross miscarriage of justice. 74 5 We  now  come  to the appeal filed by  the  State  of  Bihar against the acquittal of the two appellants of the charge of murder-  We are of opinion that the conclusion of  the  High Court on this point cannot be accepted.  The learned  Judges of the High Court referred to the injuries found on the  two deceased and to the medical evidence that of the 3  injuries found on each of the two deceased one could have been caused by a dagger while the other two could have been caused by  a Gupti.   According to the prosecution evidence,  the  dagger injuries were given by the absconding accused while the  two other  injuries  were  given by  the  two  appellants.   The learned Judges thought that Pashupati Singh who was mounting guard  on  Mohan Lal would not have gone away from  him  and assaulted  Ram  Prasad Mandal and Rukmini Devi.   They  have also  stated that in the test identification chart there  is no  mention about specific assault by Sutali Rai on  Rukmini Devi.   They  considered  that when  the  weapons  were  not produced  and there was no description of the weapons  given it was difficult to hold that a particular injury was caused by  the  absconding accused while the  other  injuries  were caused by the two appellants.  They were of the opinion that it  could  not  be inferred that the  miscreants  wanted  to commit  murder while committing robbery, and that there  was no intention or common intention to commit murder.  This was the  reason which led them to hold that the appellants  were not guilty of the offence of murder.  We are of opinion that the use made by the learned Judges of the High Court of  the test    identification   chart   is   faulty.    The    test identification  chart  does not and cannot  be  expected  to contain  a  complete  statement.   It  shows  that  P.W.   1 identified  both the accused and he was robbed of his  wrist watch and money.  It also mentions that he also stated  that Sutali  Rai attacked Ram Prasad Mandal with Gupti.  P.W.  2, Pushpa Devi, is said to have identified both the  appellants and stated that she saw Pashupati Singh attack and rob Mohan Lal  of  his watch and that Sutali Rai attacked  Ram  Prasad Mandal with a Gupti.  It will be seen that the mention  here is  only about Sutali Rai attacking Ram Prasad  Mandal  with Gupti.   It  cannot  therefore be said nor  do  the  learned Judges  say, that Pashupati Singh did not cause injuries  to anybody  and nobody caused any injury to Rukmini  Devi.   We would  have understood it if the learned Judges  had  stated that  Pashupati Singh did not cause any injury to either  of the deceased.  They do not say so.  We should also  consider that  if it was difficult to say which injury was caused  by which  of the accused, the natural inference would  be  that all the three accused caused one injujry each on each of the deceased.  As the injuries caused by the Guptis were such as

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were  enough to cause death the two appellants  are  equally guilty of murder. 746 The  fact  that  they could not have started  out  with  the intention  of committing murder but only with the  intention of  committing robbery is neither here nor there.   If  they have  caused injuries which were sufficient in the  ordinary course  of nature to cause death there can be no doubt  that they  would be guilty of murder.  We would, therefore,  hold differing  from the learned Judges of the High  Court,  that both  the  accused  are guilty of  the  offence  of  murder. Considering  the fact, however, that there has been  a  long interval  between  the date of the offence and now  and  the appellants  having been under a sentence of death till  they were acquitted by the High Court they would have undergone a period  of mental agony, we would consider that the ends  of justice would be met in the circumstances of this case if  a sentence  of  life  imprisonment  is  awarded  to  the   two appellants.   The  appeal by the State is  allowed  to  this extent and the appeal filed by the accused is dismissed. P.B.R.               Cr.  Appeal 53 of 1970 allowed.                     Cr.  Appeal 54 of 1970 dismissed. 747