28 August 1996
Supreme Court


Case number: Appeal Criminal 74 of 1988






DATE OF JUDGMENT:       28/08/1996




JUDGMENT:                        J U D M E N T S.P KURDUKAR, J      These four Criminal Appeals are filed by the appellants -accused challenging  the legality  and correctness  of  the judgment and  order dated April 25, 1986 passed by the Patna High Court  dismissing  these  appeals  and  confirming  the judgment and  order dated 25.3.1981 passed by the Additional Sessions Judge,  Patna convicting each of the appellants for offences punishable  under Sections 120B/302 and 302/34 IPC. Since these  appeals arise  out of  a  common  judgment  and order, they are being disposed of by this Judgment. 2.   The prosecution has unfolded its story as under:      Yamuna Singh  (A-1) owned  a double  storeyed  building situated in  a lane  called Langertoli  in Patna  town.  The ground floor  consisted of  three tenements  out of  which a tenement of  two rooms,  interconnected by  a door,  was  in possession  of   Proof.  Maheshwar   Prasad  Sharma   (since deceased), another  tenement was  occupied  by  Hari  Mangal Prasad Singh (the absconding accused) and the third tenement was in  possession of Chamari Prasad (P.W.20). On the second floor there  was one  room and  an open terrace which was in occupation of Yamuna Singh (A-1). 3.   The deceased  was a Professor of Sanskrit in Government Sanskrit college  Rajinder  Nagar,  Patna.  He  was  a  very orthodox and  religious minded  person. At the material time his son, Sri Prakash (PW 10) was staying with him. 4.   The  other   appellant-accused   persons   were   close associates and  friends of Yamuna Singh (A-1). It is alleged by the  prosecution that  Yamuna Singh (A-1), since last two months had  kept  Meena  Kumari  (P.W.22)  and  Phulia  Devi (P.W.28) in  his  room.  Both  these  ladies  were  of  easy virtues. All  the appellants and the absconding accused used gather at the place of Yamuna Singh  (A-1) and  shared cheap  Jokes with  these two ladies. At times they were found screaming. by such annoying behaviour of  the appellants  Prof. Maheshwar Prasad used to tell them to behave properly and not to bring ladies of such easy virtues  in the  premises. Once the deceased told them, "you are  running a  brothel" and  this will have a very bad effect  on   the  youngsters  and  other  residents  in  the



locality. The  appellants and in particular Yamuna Singh (A- 1) got  upset by  this remark  made by the deceased and told him that  if he  is unhappy  in the premises he may find out some other  accommodation. In fact deceased was very keen to find out  another  tenement  hut  unfortunately  before  the incident in  question which took place on 26.1.1979 he could not secure  another premises.  At one time deceased told the appellants that  such behaviour  in the building would cause serious trouble  including murder.  Sn hearing  this comment from the  deceased, Yamuna  Singh (A-1)  retorted by saying, "why anyone  it could  be your’s".  Because of  such threats given by A-1 the deceased had stopped coming out of his room during night time even for urination. This fact was known to the appellants. 5. Yamuna  Singh (A-1) and his associates were waiting for a chance to  teach a  lesson to  the  deceased.  On  26.1.1979 sometime in  the  afternoon  A-2  to  A-4  and  Hari  Mangal (hereinafter called  ‘the absconding  accused’  because  his trial  is   pending  and   prosecution  has   to  prove  his complicity) came  to the room of Yamuna Singh (A-1). At that time Meena  Kumari (P.W.22)  and Phulia  Devi (P.W.28)  were preparing the  meals in  the varandah.  All  the  appellants again started  enjoying cheap  jokes with loud screams which annoyed the  deceased. It is alleged by the prosecution that the deceased came out of his room on the road and shouted at the  appellants.   The  appellants  again  retorted  to  the deceased saying  that he  may vacate  the room  as early  as possible. 6.   It is  alleged by the prosecution that on 26.1.1979 the appellants  worked  out  a  conspiracy  to  eliminate  Prof. Maheshwar Prasad  Sharma. It  was decided that Ramayan Singh (A-2), a  Sanskrit teacher  who was known to Prof. Maheshwar Prasad and was a his confidence would sleep during the night in his  room as  in the past he had slept once. During night when the  dour would  be knocked,  Ramayan Singh (A-2) would open the  door, and  utter the word "Bap Re Bap" and on such utterances Prof. Maheshwar Prasad would come out of his room aud then he would be killed. It was also decided that during night the lower gate of the stair case would be kept open to facilitate free  entry. This  conspiracy was  heard by Meena Kumari (P.W.22) and Phulia Devi (P.W.28). Both of them tried to desist  Yamuna  Singh  (A-1)  from  committing  any  such illegal act.  Yamuna Singh  (A-1) told  these ladies to keep quiet otherwise they will have to face dire consequences. 7. On  26.1.1979 as  conspired in  the  afternoon  Chitradeo Prasad Singh  (A-3) at  about 10,30 p.m went to the house of Ashok Kumar Singh (P.W.1) and told him that he was wanted by the absconding  accused.  Abyay  Kumar  Suing  (P.W.23)  the brother of  Ashok Kumar  Singh (P.W.1)  overheard this talk. All these  accused then came to the house of A-1, absconding accused was then  carrying a Gupti Chitradeo Singh (A-3) was made to  stand in  the lane  in front  of the  door  of  the deceased and  Ram Babu (A-4) was standing at the junction of the lane. 8. The absconding accused as per the conspiracy at about mid night knocked the door of the deceased and thereupon Ramayan Singh (A-2),  who was  sleeping inside  the room  opened the door and   shouted  "Bap Re  Bap".  As  anticipated  by  the conspirators. the  deceased came  out of  his  room.  Yamuna Singh Chitradeo  Prasad Singh  (A-3) and  Ashok Kumar  Singh (P.W.1) caught  hold of  the deceased  who tried to struggle and get  out  of  their  clutches,  however,  he  could  not succeed. In the meantime the absconding accused took out his Gupti, and forcibly hit on the left shoulder of the deceased who thereafter  a fell  down on  the and  rolled down in the



lane. Accused  persons then  fled away.  After a  short time Yamuna Singh  (A-1) came back in the lane near the telephone pole, fired  a shot  from his  gun in  the air  and ran away towards the  southern side of the lane from where he entered in his house. 9. After  hearing  the  fire  arm  shot,  residents  in  the locality woke up and came on the road. They noticed the dead body of  Prof. Maheshwar Prasad Sharma, lying on the road in front of  his room.  After  a  short  time,  the  absconding accused, came  there and  a little  later he himself went to the police  station and  lodged the report stating that some unknown persons have committed the murder of Prof. Maheshwar Prasad Sharma. 10. After  registering the  offence investigation commenced. Since  local  police  did  not  show  any  progress  in  the investigation,  it   was  handed   over   to   CBI.   During investigation  the  statements  of  various  witnesses  were recorded. After  completing the  investigation  the  charge- sheet under  Sections 120B/302,  308/34 IPC  against all the appellants including the absconding accused was submitted. 11. The  accused denied the charges and claimed to be tried. According to  them they  have been falsely implicated in the present crime.  They pleaded  that in  the early  morning of 27.1.1999 they  heard a  sound of  fire arm and at that time probably some  unknown  persons  might  have  committed  the murder of  Prof. Maheshwar  Prasad Sharma. They pleaded that they are innocent and they be acquitted. 12.  The prosecution  care mainly  rests on  tho evidence of Ashok Kumar  Singh (P.W.1),  the approver.  In order to lend corroboration to  the approver’s  evidence. the  prosecution drew support  from the evidence of Meena Kumari (P.W.22) and Phulia Devi  (P.W.28). In  addition  to  this  evidence  the prosecution also  relied upon several other circumstances to prove the  guilt of the accused. At the trial the absconding accused could  not be  apprehended and, therefore, his trial was separated. 13. The  trial court  on appreciation of ocular evidence and other materials  on record  found all  the appellants guilty under Sections  120B/302 and  302/34 IPC  and convicted each one of  them to suffer imprisonment for life. The appellants preferred four  separate appeals  to the High Court of Patna and on  reappraisal of  entire evidence  on record  the High Court dismissed  all  these  appeals.  It  is  against  this Judgment and  order of  the High  Court the  appellants have filed the present appeals. 14. At the outset, it may be stated that the learned counsel appearing for the appellants did not and could not challenge the fact  that Prof.  Maheshwer Prasad  Sharma  met  with  a homicidal death.  The main  question that  survives for  our consideration is as to whether any of the appellants/accused or all  were responsible  for the  murder of Prof. Maheshwar Prasad Sharma. 15. It  was contended  on behalf  of the  appellants/accused that the evidence of Ashok Kumar Singh (P.W.1), the approver is totally  untrustworthy and does not find corroboration in material particulars  from the other evidence on record. It, is, therefore,  contended that the conviction based upon the evidence of  approver is  unsustainable. In  support of this contention  strong  reliance  was  placed  on  the  reported decision of  this Court in Suresh Chandra Bahri vs. State of Bihar (1995  (suppl.) 1  SCC 80).  We  have  carefully  gone through this judgment. 16. We  may now proceed to consider the evidence of approver (P.W.1). With  the assistance  of learned  Counsel  for  the parties we have Carefully gone through the evidence of Ashok



Kumar Singh  (P.W.1), the  approver and  we  find  that  his evidence  is   trustworthy.  Moreover  this  evidence  finds corroboration in  all material particulars from the evidence of Meena  Kumari (P.W.22)  and  Phulia  Devi  (P.W.28).  The evidence of  Ashok Kumar  Singh (P.W.1),  the approver apart from being  reliable does  not suffer  from are  omission or contradiction vis-a-vis his statement recorded under Section 164 Cr.P.C.  Ashok Kumar  Singh (P.W.1)  has given all minor details about the conspiracy hatched on 26.1.1979. 17.Ashok Kumar Singh (P.W.1) while disclosing the conspiracy on oath  has stated  that on  26.1.1979 it  was decided that Ramayan Singh (A-2) would sleep during the night in the room of Prof.  Maheshwar Prasad,  when the door would be knocked, he would  open it  and will  say Bap  Re Bap.  It  was  also decided that Yamuna Singh (A-t) would keep the lower gate of the first  floor open  to facilitate  other accused  to come quietly to his room. 18. Accordingly during the mid-night Chitra Deo Prasad (A-3) went to  call Ashok  Kumar Singh  (P.W.1) and  told him that about 10.00  a.m. he  was wanted  by the absconding accused. This talk was overheard by Abhay Kumar (P.W.23), the brother of Ashok  Kumar Singh  (P.W.1) and  he has corroborated this part of the conspiracy. The absconding accused (A-3) came to the house of Yamuna Singh (A-1) and went in his room. Yamuna Singh (A-1), the absconding accused, Chitra Deo Prasad (A-3) made to  stand in  the lane  in front  of the  door  of  the deceased. Ram Babu (A-4) was standing at another junction of the lane.  The absconding  accused knocked the door of Prof. Maheshwar Prasad  and thereupon  it was  opened  by  Ramayan Singh (A-2),  who uttered the words Bap Re Bap. Upon hearing this, Prof.  Maheshwar Prasad  came out  of his room. Yamuna Singh (A-1)  Chitra Deo  Prasad (A-3)  and Ashok Kumar Singh (P.W.1) caught  hold of  Prof. Maheshwar Prasad who although struggled but could not get himself rescued. In the meantime the absconding  accused  took  out  his  Gupti  and  gave  a forcible blow  on  the  left  shoulder  of  Prof.  Maheshwar Prasad, who  screamed loudly and fell on the ota. Thereafter he rolled  down in the lane. All the accused then fled away. After some  time Yamuna  Singh (A-1)  came back to his house and while  standing near the telephone pole he fired a shot, and then entered in his house from the southern side. 19. Meena  Kumari (P.W.22) and Phulia Devi (P.W.28) narrated as to  how the conspiracy was cooked up by the appellants on 26.1.1979. Meena  Kumari (P.W.22)  claims to  have overheard the entire  conspiracy when she was cooking the meals in the varandah. She  further stated that she told Yamuna Singh (A- 1) not to commit any such offence, but thereupon he told hor to keep  quiet. She  then stated that she remained very much uneasy during  the whole night and was also eager to see the entire episode.  She further  stated that she saw the entire incident from  the gallery,  including the  assault on Prof. Maheshwar Prasad  by the  ascending  accused.  Meena  Kumari (P.W.22) then  stated that  Yamuna Singh  (A-1) came back to his premises  after the  incident and  told her  to wash his blood stained  Ganji. Being  a maid servant, she did it. She further deposed  that after some time the absconding accused came and  washed the  blood stained  Gupti, and  when it was shown to  Yamuna Singh  (A-1) he  asked him to re-wash it so that no  blood could  be detacted.  Phulia Devi (P.W.28) has narrated the entire story in the same sequence and manner an it is,  therefore, not  necessary to reproduce her evidence. The evidence  of both these witnesses, in our opinion, fully corroborates the  evidence of  the approver  in all material particulars  and,  therefore,  the  irresistible  conclusion which must  follow is  that the  appellants were  the active



members of  the conspiracy and committed the murder of Prof. Maheshwar Prasad Sharma in pursuance thereof. 20. Learned counsel for the appellants vehemently challenged the evidence  of  Meena  Kumari  (P.W.22)  and  Phulia  Devi (P.W.28) on  various grounds.  They urged  that  both  these ladies  were   of  easy  virtues  and  they  were  also  co- conspirators fur nut disclosing the conspiracy to others. It was also  contended that both these witnesses were under the control  of   investigating  agency  and,  therefore,  their evidence is  tailor made  and be rejected. We do not see any merit contention. 21. It  was contended  that Meena  Kumari (P.W.28) refers to firing but  Phulia Devi  (P.W.28) did not say anything about it. It  is, a  major  discrepancy  in  their  evidence  and, therefore, the  evidence of  both these  witnesses should be discarded as unreliable. But this submission does not appeal to us  because on  record there  is evidence  of  Raghubansh Kamar Singh  (P.W.9), Vijay  Kumar Singh  (P.W.17) and  Ajay Singh (P  W.32) who  referred to  the sound  of fire arm and their evidence supports the evidence of the approver as well as Meena Kumari (PW 22). 22. It  was then  contended on behalf of the appellants that it was  totally improbable  to expect  that A-1  would  fire from. the  gun in  the air  after committing the offence and would  attract   the  attention  of  the  residents  in  the locality. This  submission is  again  devoid  of  any  merit because the  appellants wanted  to mislead  the residents of the locality  that some  unknown persons  have committed the murder of Prof. Maheshwar Prasad Sharma. 23. It  was then contended that no identification parade was held and,  therefore, the  identity sought to be established through the evidence of Meena Kumari(P.W.22) and Phulia Devi (P.W.28) be not accepted. This submission needs to be stated and rejected  because these witnesses were quite familiar to the appellants. 24. it  was then  contended that it is impossible to believe that deceased  would allow  Ramayan Singh  (A-R) to sleep in his room when he was apprehending danger to his life. We see no substance  in this  contention because  the  evidence  of approver (P.W.1),  Meena Kumari  (P.W.22)  and  Phulia  Devi (P.W.28) is quite unimpeachable on this aspect. 25. We  have carefully  gone through  the evidence on record and we  find no  substance in  their appeals and, therefore, stand dismissed.  The  appellants  who  are  on  bail  shall surrender to  their bail  bonds forthwith  to serve  out the remainder of their respective sentences.