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CASE NO.: Appeal (crl.)  660 of 1999

PETITIONER: State of U.P.

RESPONDENT: Ganga Ram & Ors.                                                              

DATE OF JUDGMENT: 25/10/2005

BENCH: H.K. SEMA & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T                                  

H.K.SEMA,J

        Four accused, A-1 Ganga Ram, A-2 Raghubir, A-3 Lal Singh and A-4  Rajendra Singh were put to trial before the Trial Court for the murder of  deceased-Tula Ram under Section 302/34 IPC.  The Trial Court convicted  all of them under Section 302 read with Section 34 IPC and sentenced them  to rigorous imprisonment for life.  On appeal, the High Court acquitted all of  them.  Hence, this appeal by special leave by the State of U.P.         During the pendency of the appeal, A.2- Raghubir and A.3-Lal Singh  expired.  The appeal against them already stands abated.  This appeal,  therefore, is survived qua A.1-Ganga Ram and A.4-Rajendra Singh.  It may  be noted that A.1-Ganga Ram and A.2-Raghubir are real brothers and A.3- Lal Singh and A.4-Rajendra Singh are real brothers.         Facts may be noted briefly:-         P.W.3-Rajendra Singh filed a complaint case against the accused  persons Rajendra Singh and Lal Singh in the Court of Special Judicial  Magistrate, Bareilly, in which the deceased-Tula Ram was cited as one of  the witnesses.  On 27.7.1978, the deceased-Tula Ram had gone to depose in  the said complaint case against the accused Rajendra Singh and Lal Singh.   It is alleged that the accused persons had threatened on several occasions not  to appear as a witness but deceased-Tula Ram was determined to give  statement.  On  27.7.1978 at about 5.15 p.m. when the informant PW-1  Dhakan Lal (father of the deceased), P.W.2-Hemraj, the deceased-Tula Ram  were coming back to their village from the bus-adda, Meerganj, the  informant and others stopped at the Meerganj Sindhauli road in the jungle of  Kalyanpur to smoke bidi.  The deceased-Tula Ram went about fifty-sixty  steps ahead of them.   Accused Raghubir armed with single barrel gun  (SBBL gun), accused-Lal Singh armed with double barrel gun (DBBL gun),  accused - Ganga Ram and accused-Rajendra Singh armed with Tamancha  (country made pistol) emerged from behind the stones heaped at the road.   Accused Lal Singh told the deceased-Tula Ram that he had been warned not  to appear as a witness but he was adamant and therefore he should not be left  and should be killed.  Thereupon Raghubir and Lal Singh made one fire each  at Tula Ram with their respective weapons.  Tula Ram fell down on the  road.  When the informant and others raised an alarm, the accused persons  ran away towards west.  P.W.1-Dhakan Lal left behind P.W.2-Hemraj near  the dead body and he got the FIR written by P.W.3-Rajendra Singh and  lodged the FIR at police station, Meerganj.  A case was registered under the  aforesaid Sections of Law and after the completion of the trial; the Trial  Court recorded the conviction as above.   P.W.4 \026 Dr. I.S. Tomar, conducted the autopsy on the dead body and  prepared the postmortem report (Ex.Ka-3).  He found the following  antimortem injuries on the dead body of the deceased:. "1.  9 gunshot wounds on the right side of chest in an area of             14 cm x 8 cm. 2 cm below the right nipple and were extarded

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upto the lower part of the central bone of the chest.  Each  wound was 0.8 cm x   0.8 cm x chest deep in size and the  edges of the wounds were parted and turned inverted.  There  was no blackening and burning around the wounds.  The  direction of the wounds was from right to left and to backside.   

2.      Scratch 2 cm x  .5 cm on the left side of chest below the  collar bone. 3.      Internal examination.    

1.      The fourth, fifth and sixth step bone on the right side was  fractured due to injury 2.      Both lungs and the membranes above them were  punctured in the middle.     3.      The membrane above the heart was punctured through  and through in the right side of heart. 4.      There was about 1 litre blood on each side in the chest.  5.      There was about 600 cc blood in the perlineal cavity and  it was punctured at one place on the upper side.    6.      Liver was punctured from one to the other and 15 ounce  of half digested food was there.  7.      Liver left part was punctured through and through.

4.      In my opinion the death occurred due to shock and  hemorrhage due to injuries.      

5 Large bullets were extracted from the body of the       deceased which were as under:-

One from the right lung, two from the left lung, one from  heart and one from abdominal cavity.  These bullets were  sealed at the time of examination.  The clothes of the above  deceased, which were 4 in number, were also sealed at the  same time and were sent to S.O.Meerganj.   

5.      This report was prepared at the time of the examination of  the dead body, which is written and signed by me is and is  marked Ex.Ka-3. 6.      The injuries of the deceased were ordinarily enough to  cause death.  His death could have been caused at about 5,  5.15 in the evening on 27.7.1978.

To bring home the guilt of the accused, the prosecution amongst  others examined two eyewitnesses, P.W.1- Dhakan Lal and P.W.2- Hemraj.   Admittedly, P.W.1- is the father of the deceased and therefore his evidence  has to be weighed with caution.   He stated that in a complaint case filed by  P.W.-3 against accused Lal Singh and Rajendra Singh, his deceased son  Tula Ram was cited as a witness.  He further stated that the accused persons  used to ask his son not to give evidence to which his son used to reply that  he would give evidence and stated the evidence truthfully.       PW1-Dhakan Lal was examined on 23.8.1979 for the incident  happened on 27.7.1978, he deposed as under:- "About 1. = year ago my son Tula Ram had come to  Bareilly to give evidence in the said complaint case.  I  had also later on come to Bareilly on the said day to fetch  medicine for my younger son Chotey Lal.  After getting  medicines I reached bus stand to go home, at about 3 in  the afternoon.  There I met my son Tula Ram, Sardar  Singh and Khem Raj.  We all four sat together in the bus  to go home.  We alighted on the Meerganj bus stand.  It  would have been about 4, 4.15 p.m.   We started on foot  towards our village, while enroute Gaindan lal who is our  brother also met us.  He also accompanied us to our  village.  When we reached near the boundary of village

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Nagaliya Kalyanpur on Meerganj Sindholi Road we  halted there to smoke bidi and tobacco.  My son Tula  Ram does not smoke bidi or tobacco.  He went ahead of  us by about 50-60 steps.  I saw that all the four accused  persons present in the court came out from the trenches  on the western side of the road among whom Lal Singh  was holding a double barrel gun, Raghunath was holding  a single barrel gun and Ganga Ram and Rajender had  country made pistols in their hands.  Accused Lal Singh  said to my son that you did not stop from giving evidence  and we kill you today.  Then our son started running  towards us.  Just then accused persons Raghubir and Lal  Singh fired at our son with the guns.  On being hit he fell  down there on the road on the western side.  On our  shouting all the accused persons present in the court ran  away through the sugarcane fields on western side.      

When we reached near Tula Ram by that time he  had died.  After leaving all my three above companions  near the dead body I reached P.S. Meerganj on foot  which is about 1.1/2 mile from there, wrong when I  reached Meerganj town there Rajender Singh of Hurharri  near the Dharamsala I dictated him all the incident on a  paper, whatever I dictated he wrote and made me affix  my thumb impression.  The written report was read over  to the witness and he said that it is correct and bears my  signatures.  It was marked Ex.Ka.1   I submitted this  report in P.S. Meerganj on the basis of which my report  was recorded and copy was given to me."  

       This witness was subjected to lengthy cross-examination running into  twenty pages.  We have been taken through the entire deposition of the  witness in-chief as well as in cross-examination. We are surprised to notice  that not even a suggestion was put to witness denying the presence of the  accused at the place of occurrence and weapons carried by each accused as  described by P.W.1, therefore, the substance of acquisition against the  accused made in-chief of P.W.1 remains unimpeached.          P.W.2 - Hemraj, is another eyewitness, who is the resident of the same  village.  He stated that he had also gone to Bareilly to give evidence along  with the deceased-Tula Ram and was coming back from there.  He stated as  under:- "We started on foot from Meerganj bus stand to our  village at about 4, 4.30 in the evening.  We were going  on the metalled road leading from Meerganj to Sindholi.   We all the five were going together and halted near the  kilu to smoke biri.  Tula Ram did not stop but kept on  going ahead and went about 50-60 steps ahead of us.  We  also immediately started going ahead after lighting our  biries and then saw that accused persons present in the  court Rajender Singh, Lal Singh, Raghubir Singh and  Ganga Ram among whom Raghubir Singh holding a  single barrel gun, Lal Singh holding a double barrel gun  and the remaining two accused persons holding country  made pistols came on the road side from behind the  stones and trenches on the western side of the road and  Lal Singh challenged Tula Ram and said that you were  asked not to give evidence but you did not agree, we will  kill you.  Saying this accused persons Lal Singh and  Raghubir Singh fired with their guns being hit with  which Tula Ram fell down there.  We shouted and then  the accused persons aimed the barrels of their guns at us  and ran towards the western side.  Then we went near  Tula Ram who was dead.  At the time of occurrence none  other than we four witnesses and the deceased had come  there.  Dhankan Lal went to the police station to register

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the report and we three remained guarding the dead body.   Gaindan Lal was sent to home to inform."     

       This witness also was subjected to lengthy cross-examination but  nothing could be elicited from his mouth to discredit his testimony in-chief.   In fact, no question or not even a suggestion, was put to this witness to  demolish the substance of the testimony about the factum of the incident,  lucidly narrated by him, which inspires confidence.          The testimony of P.W.1 and P.W.2 as quoted above is well  corroborated by the medical evidence and the post mortem report conducted  by P.W.4 Dr.I.S. Tomar,  in material particulars.         One of the grounds, on which the High Court, recorded acquittal of  the accused was that the occurrence is stated to have taken place on a pucca  road on which bullock-carts, buses and other vehicles also go.  The time is  also of 5.15 p.m. but no outsider or pedestrian or resident of the vicinity has  been named in the FIR or in the statement of the witnesses but only P.W.2-  Hemraj has been examined as an independent witness.    This ground, taken  by the High Court, is far-fetched and contrary to the testimony of  eyewitnesses.  This can be hardly a ground to disbelieve the otherwise  creditworthy testimony, which inspired confidence.  It is now well-settled  principle of law that whom to cite as a witness and whom not is within the  domain of the prosecution.   It is also well settled principle that the  prosecution evidence has to be weighed and not to be counted.  It is just  because any other pedestrian or resident of the vicinity has not been cited as  witnesses will be no ground to throw away the otherwise reliable testimony  of the eyewitnesses which is natural and inspires confidence.  There is no  evidence on record to show that there were other pedestrian or resident of  the vicinity present at the relevant time, besides the prosecution witnesses.   In our view, the aforesaid reason by the High Court is based on conjectures  and surmises and is perverse.         The second ground, on which the High Court, recorded acquittal is  that P.W.1-Dhakan Lal has stated in cross-examination that at about 9.00  A.M. he himself had gone to Bareilly to purchase medicine for his younger  son Chhotey Lal as there was ulcer in the ear of Chhotey Lal.  What was the  age of Chhotey Lal was not clear.  The High Court has ultimately held as  under:- "What prohibited Tula Ram to purchase medicine for his  younger brother and if Tula Ram was going to Bareilly a  bit earlier what was the necessity of the complainant to  have gone to Bareilly to purchase the medicine for his  younger son.  This is not the case of prosecution that  Tula Ram had refused to bring any medicine or if asked,  he would not have brought the medicine.  Therefore, the  natural conduct shall be, if actually, the younger son of  the complainant was ill and Tula Ram was actually going  to Bareilly, he would have brought the medicine.  There  was no necessity for Dhakan Lal to have gone to  Bareilly."      It will be noticed that P.W.1 had stated in cross-examination that he  does not know that at what time on that day his deceased son Tula Ram had  gone to Bareilly from home to give evidence because he had gone to the  field in the morning.  When he returned from the field he came to know  from the children that at about 8.00 in the morning Tula Ram had gone to  Bareilly to give evidence.  He further stated that Tula Ram did not tell him  earlier that he had to go to Bareilly to give evidence.           We notice with dismay the findings recorded by the High Court,  which are contrary to the evidence on record, based on surmises and  conjectures.  The way the High Court appreciated the prosecution evidence  is in the form of cross-examination of the prosecution witnesses.   The  evidence must be read and appreciated as it is.  Nothing can be read to the  evidence.  The High Court has also recorded as under:- "All the two witnesses examined in the case are chance  witnesses.  They are inimical and interested witnesses.   Their presence on the spot is highly doubtful.  It is

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apparent that they did not see the occurrence and had  named the accused persons out of animosity."          We are unable to discern the reasoning of the High Court.  Both the  eyewitnesses had stated that they travelled together with the deceased and  were coming back together with the deceased from Bareilly where the  incident had taken place and narrated the entire story as aforesaid.  The High  Court has recorded their presence on the spot doubtful without assigning any  reason.  The High Court was also of the view that they did not see the  occurrence and had named the accused persons out of animosity without  assigning any reason.             Learned Counsel for the respondents submitted that in any event the  two accused namely Raghubir and Lal Singh, who have been described as  actual assailants, have expired and no active part has been attributed to the  appellants namely Ganga Ram and Rajendra Singh, they are entitled to be  acquitted.  In this connection, learned counsel has relied upon the decision of  this Court rendered in  Mithu Singh   Vs.   State of Punjab, (2001) 4 SCC  193, where this Court has held that to substantiate a charge under Section  302 with the aid of Section 34 it must be shown that the criminal act  complained against was done by one of the accused persons in furtherance  of the common intention of both.   An inference as to the intention shall have  to be drawn from the acts or conduct of the accused or other relevant  circumstances, as available.    No quarrel over the proposition of Law.          Reliance has also been placed on the decision of this Court rendered  in  State of Rajasthan    vs.   Kishan Singh & Ors., (2002) 10 SCC 160,  where this Court has held that two of the accused were also tried for  substantive offence under Section 302 and the Trial Court acquitted the two  accused who were tried for substantive offence under Section 302 and  convicted the remaining three under Section 302 with the aid of Section 34.   It was held that since the charge on substantive offence under Section 302  has not been established, the conviction of the other accused under Section  302 read with 34 was not maintainable.   In our view, the aforesaid decisions  cited by the learned counsel are of no help to the accused.  This submission,  in our view, is totally misconceived.  In the present case, the conviction  recorded by the Trial Court was under Section 302 with the aid of Section  34.  The two accused armed with country made pistols accompanied the  other accused armed with SBBL gun and DBBL gun respectively went to  the place of occurrence, way laid the deceased and party and attacked the  deceased.  It cannot be said that they accompanied the other accused as an  idle curiosity.  The aforesaid circumstances, would clearly infer the intention  of the present two accused for committing an offence in furtherance of  common intention.  Their conviction under Section 302 with the aid of  Section 34 cannot be said to be unjustified.              In the premises aforestated this appeal is allowed.  The order of  acquittal recorded by the High Court is set-aside.  The order of conviction  recorded by the Trial Court is restored.  The respondents namely Ganga Ram  and Rajendra Singh are directed to be taken back into custody forthwith to  serve out the remaining part of sentence.  Compliance report should be sent  to this Court within one month.                   

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