Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1241 OF 2003

Sunil Kumar & Anr. …. Appellants

Versus

State of U.P. …. Respondent

WITH

CRIMINAL APPEAL NO. 1242 OF 2003

Ram Singh …. Appellant

Versus

State of U.P. …. Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of two appeals being Criminal  

Appeal No.1241 of 2003 and Criminal Appeal No. 1242 of 2003.  The  

High Court’s judgment dismissing the appeal and confirming the  

conviction and sentence is in challenge in these appeals at the  

instance  of  the  three  accused  persons,  namely,  accused  Sunil  

Kumar, accused Tilak Singh and accused Ram Singh.  Originally,  

five accused persons came to be tried for committing offences  

under Section 304 Part II read with Sections 147, 504 and 302 read

with Sections 149, 147 and 504, IPC.  They were accused Sunil  

Kumar, accused Jageshwar, accused Tilak Singh, accused Ram Singh  

and  accused  Munna.   All  the  accused  persons  were  charged  and  

convicted for the offence under Section 304 Part II read with  

Section 149 and Section 147, IPC and were sentenced to suffer  

rigorous imprisonment for four years.  All of them filed appeal  

before the High Court.  However, the High Court convicted all the  

accused persons.   

2. Before  us  only  three  accused  persons  have  come  up  in  

appeal, they being accused Sunil Kumar and accused Tilak Singh (in  

Criminal  Appeal  No.  1241  of  2003)  and  accused  Ram  Singh  (in  

Criminal Appeal No. 1242 of 2003).  It is reported that accused  

Jageshwar and accused Munna are no more.  That is how we have to  

consider  the  case  only  of  three  appellants.   They  shall  be  

referred to as appellant Nos. 1, 2 and 3 respectively.  

3. The prosecution case was that all the accused persons had  

on 23.02.1982 at about 5 p.m. in Mohalla Shivapuri within the  

limits of Police Station Orai, District Jalaun formed an unlawful  

assembly with the common object to commit the murder of Salim and  

inflict injuries on the person of Salim causing his death.  The  

matter  was  reported  by  Hamid  Khan,  father  of  the  deceased  

immediately at 5.30 p.m.  It was contended therein that when Salim  

was working in his shop at about 5 p.m., the accused persons came  

to his shop and started asking Salim whether he considered himself  

to be a great  gunda since he was showing off in the exhibition  

ground and thereafter started abusing him in filthy language.  On  

being objected by Salim, all the accused started beating him with  

lathis/dandas whereupon Salim fell down.  The complainant raised

an alarm hearing which witnesses Naeem, Mohd. Ilyas @ Naushe and  

several other persons reached the spot.  Seeing them, accused  

persons fled away from the scene.   

4. Usual investigations followed and the accused came to be  

arrested barely within 2 or 3 days.  The injured Salim was sent  

for  Medical  examination  of  the  injuries  where  as  many  as  six  

contused  wounds  were  found  on  his  body.   Salim  had  become  

unconscious and, therefore, all the injuries could not be noted.  

Salim was thereafter transferred to the Medical College, Kanpur  

for treatment where next day i.e. on 24.02.1982 at 7.55 a.m. he  

breathed his last. The information of death was sent to the Police  

Station, Swarup Nagar, Kanpur and an inquest was prepared of his  

body.  Photographs were taken and the body was sent for post  

mortem examination.  Salim was hardly 22 years old.  In the post  

mortem examination, three injuries were found on his head and it  

was found that he had suffered a linear fracture of parietal bone  

on both sides extending from left ear to right ear.  Haemetoma was  

found in the brain and according to the doctors, death was due to  

coma as a result of the head injuries caused by blunt weapons.  

The accused were charged for the offences under Sections 147, 304,  

323 and 504 IPC.  They abjured the guilt.  Hamid Khan (PW-1),  

Mohd. Ilyas @ Naushe (PW-2) and Naeem (PW-3) were examined by the  

prosecution as eye-witnesses along with others.  Their evidence  

was  accepted  and  the  accused  persons  came  to  be  convicted  as  

stated  above.   Their  appeal  also  failed  and  that  is  how  the  

accused persons are before us.

5. Mr. Amarendra Sharan, learned Senior Counsel who appeared  

in both the appeals attacked the judgment of the High Court and

the Trial Court firstly, contending that there was absolutely no  

reason for the accused persons to assault the deceased and no  

motive has been attributed to all these accused persons.  Learned  

Counsel suggested that basically the story of the prosecution in  

the absence of any apparent motive became extremely doubtful.

6. We are not impressed by this submission since motive in a  

criminal case is irrelevant where evidence of the eye-witnesses is  

available.   In  this  case,  there  were  as  many  as  three  eye-

witnesses one of whom was the father of the deceased.  Therefore,  

the  question  of  absence  of  motive  would  have  no  importance  

whatsoever.   

7. Learned Senior Counsel then took us extensively through  

the  evidence  of  three  eye-witnesses  and  pointed  out  that  the  

evidence of the father would be that of an interested witness and  

there was no possibility of the two other witnesses, namely, Mohd.  

Ilyas @ Naushe (PW-2) and Naeem (PW-3) being the eye-witnesses as  

according to the Counsel, they were busy in their own shops.  But  

it has clearly come in the evidence that the father was very much  

present at the shop while the shop of Mohd. Ilyas @ Naushe (PW-2)  

is just by the side of the shop of the deceased.  It has also come  

in the evidence that the shop of Naeem (PW-3) is about 20 yards  

from  the  shop  of  the  deceased  which  is  a  tractor  repairing  

workshop. Considering this position and also considering that it  

was 5 O’clock in the evening, there is no possibility of the shop  

remaining closed and under these circumstances, the presence of  

the  eye-witnesses  would  be  most  natural.   Therefore,  on  that  

count, the evidence cannot be discarded.  It was also suggested  

that the day on which the occurrence took place was Tuesday and as

such the market remained closed. The shops of the deceased as also  

the eye-witnesses were not big shops and they were in the nature  

of small workshops where welding and electric work etc. was going  

on.  Under such circumstances, it is not possible to hold that  

such small shops also remained closed on Tuesday.  Again, in the  

wake of the direct evidence of the witnesses, we cannot accept the  

contention that the shops were not there.  All the three witnesses  

have very specifically deposed about the presence of the accused  

persons.  They have also deposed about the individual acts in  

assaulting the deceased Salim on his head.  There is very little  

cross-examination  on  the  actual  occurrence.  We  have  seen  the  

evidence and found that the evidence given by these witnesses  

could not be shaken even in the cross-examination.

8. It was suggested further that PW-1, Hamid Khan had in his  

evidence admitted that he did not pay any tax to the municipality  

and there was no permit which would mean that there was no shop as  

such.  Now, merely because the permit was not there, it does not  

mean that the deceased was not doing the gas welding work in his  

shop.  In fact, all the witnesses have unanimously stated about  

the shop being there and the deceased being assaulted.  Much of  

the cross-examination was redundant of this witness as also the  

other witnesses.  Same is the story of evidence regarding Mohd.  

Ilyas @ Naushe (PW-2). There appears to be some cross-examination  

as  regards  the  identification  particularly  of  Mohd.  Ilyas  @  

Naushe.  However, this witness had actually identified all these  

accused  persons  since  they  all  knew  the  deceased  as  also  the  

accused persons.   

9. The Trial Court as well as the High Court have considered

the evidence closely and we do not think that there is any error  

in the appreciation.   

10. Lastly, it was stated by the learned senior Counsel that  

the offence would not be under Section 304 Part II, IPC.  At the  

most it could be under Section 325 or 326, IPC.  We do not think  

that we can accept this argument.  In fact, seeing the seriousness  

of the wounds, injuries on the head including the fracture on the  

head, we wonder as to how the accused were charged of the offence  

under Section 304, IPC.  It was absolutely incorrect.  They should  

have been charged under Section 302, IPC.  However, in the absence  

of the appeal by the State, we would not be in a position to do  

anything in that behalf.  Learned Counsel also suggested that  

considering that this incident had taken place in the year 1982  

and sentence of four years would be harsh punishment. We do not  

think so.  In fact, the punishment is on the lenient side.  After  

all, one young life was lost at the young age of 22 years.  While  

considering the sentence, merely because the appeal pended and  

merely because the incident had taken place long back would not by  

itself justify any interference with the punishment, particularly,  

when the punishment itself is a lenient one.  

11. In  that  view,  both  the  appeals  are  dismissed  as  being  

without any merit.  The accused persons, who are on bail, shall  

immediately surrender within 15 days failing which immediate steps  

including issuance of non-bailable warrant shall be taken.  

……………………………..J.    (V.S. Sirpurkar)

……………………………..J.       (Dr. Mukundakam Sharma)

New Delhi;

January 6, 2010