08 November 1996
Supreme Court


Case number: Appeal Criminal 350 of 1987






DATE OF JUDGMENT:       08/11/1996




JUDGMENT:                       J U D G M E N T      Thomas J.      One Anup  Singh, a  young wrestler, was murdered around noon on  19.12.1985. Two of his associates were also injured in the  episode. Police challaned the four appellants before us for  the murder of Anup Singh and for causing hurt to his associates. As  the weapon used was a knife and as the place of incident was within the notified area under The Terrorist and Disruptive Activities (Prevention) Act) 1987 (’TADA’ Act for short),  the  case  was  tried  by  a  Designated  Court constituted under  section 9  of the  TADA Act. All the four appellants were  convicted first appellant under section 302 and  324   of  the  Indian  Penal  Code  and  the  remaining appellants under  those offences  with the aid of section 34 of the  Indian Penal  Code. Each  of them  was sentenced  to imprisonment for  life under the first count and to rigorous imprisonment for  three years  under the  second count.  The first appellant  was further  charged with section 25 of the Arms Act 1959 read with section 6 of the TADA Act but he was acquitted of  that offence.  Appellants have  preferred this appeal under section 19 of the TADA Act.      Prosecution story:  On the  previous day  of murder  of Anup Singh,  an encounter  took place  between him and first appellant -  Yudhvir. On  this account,  first appellant was harbouring a  ruse towards  the deceased.  On the occurrence day, deceased  Anup Singh  and his  associates (PW1 and PW2) travelled in  a  bus  in  which  the  four  appellants  also travelled and  they all  alighted at Rohtak bus stand. First appellant -  Yudhvir told  his associates that he would take revenge on  the deceased for the previous day’s incident. He then whipped out a knife from his pocket and aimed a blow at the deceased  but it was warded off by him. Fourth appellant - Rajinder,  who reached there in the meantime, dealt a blow on the  deceased with  a hockey stick. At that stage, second appellant (Rambir)  and third  appellant  (Bijender)  caught hold of  the deceased  by his  hands from  both sides. First appellant then  inflicted a  stab injury on the chest of the deceased. When  PW1 and  PW2 made a bid to rescue him, first appellant  attacked   them   also   with   the   knife   and consequently, they  too sustained  injuries. By  then, other



people rushed  up to  the rescue  of  the  victims  and  the assailants thereupon  took to  their heels.  All the injured were taken  to the  Medical College Hospital Rohtak but Anup Singh succumbed to the injuries on the same day.      First  information   regarding  the  incident  was  the statement of  PW1 recorded  by  the  police.  All  the  four appellants were  arrested on  different dates,  and  on  the strength  of   the  information   elicited  from  the  first appellant  a  knife  was  recovered  by  the  police.  after completing the  investigation, final  report as laid against all of them.      During the trial PW1 and PW2 spoke to the occurrence in accordance with  the prosecution  case. When  the appellants were examined  under section  313 of  the Code  of  Criminal Procedure, first  appellant stated  that he  was attacked by the deceased  Anup Singh  and his friends in retaliation for what he did to the deceased on the previous day. Involvement of the  remaining appellants  in the  incident  was  totally repudiated by all of them.      Learned Judge  of the  Designated  Court  accepted  the evidence of  PW1 and PW2 and held that prosecution succeeded in proving  the case  against the  appellants.  Accordingly, they were convicted and sentenced as aforesaid.      Sri Sushil Kumar, learned Senior Counsel who argued for appellants 2  to 4  contended  that  those  appellants  were falsely implicated  in the  case and alternatively contended that no  common intention  as envisaged in section 34 of the IPC could be fastened on them.      In the first information statement, associates cf first appellant were  described as Gogi s/o Ishwar Singh, Ramkiran Pandit and Jailal @ Jaila Pahalwan. Appellants have disowned such names  and they contended that in the final report laid by the  police they were described with those names added to their real  names just to make it appear that they have such names also. In this context, it is pertinent to note that in the inquest  report, the  name of  first appellant alone was mentioned and his companions were indicated by the residuary words "etc".  Learned Senior  Counsel contended  that if the FIR had  really come into existence before inquest was held, there  was  no  reason  to  skip  the  names  of  the  three appellants in the inquest report.      On a  closer scrutiny  of the evidence we are persuaded to attach  much weight  to the  aforesaid  contention.  Non- mention  of   the  FIR  number  in  the  inquest  report  is conspicuous therefrom for which PW 9 (Sub-Inspector who held the inquest)  could not  give any explanation whatsoever. On the other  hand, he  admitted in  cross-examination that  he prepared inquest  report first and the FIR was recorded next which, of  course, at a later stage he tried to make amends. But what  he said first on that score seems to be disclosure of the  actual sequence of what really happened. At no place in the  inquest report, the name of anyone of the assailants (other than  the first  appellant) was  indicated and at all places where the remaining assailants were to be referred to the author  of the  report employed  the abbreviation "etc." This lacuna  was later replenished in the FIR by using names of three  more assailants  which names  the appellants  have disowned now.      That apart,  the role attributed to the four appellants - that  one of them blow with a hockey stick on the deceased - has been prevaricated by the two eye witnesses examined in Court. As  the post-mortem  report showed  no  corresponding injury on the head of the deceased, PW 1 and PW2 said during trial that they were not sure whether the strike given by A- 4 had  fallen on  the head  of the  deceased. Again,  as  we



noticed some  of the  anti-mortem injuries  sustained by the deceased, We  find it  difficult to  believe that second and third appellants would have held the deceased’s hands while first appellant  was inflicting blows on the deceased with a knife. Deceased had an incised tailing wound on the anterior aspect of  the left  upper arm,  incised wounds on the right thumb, right index finger, left ring finger and also on left middle finger and an abrasion 3x2 cm. on left upper arm with infilteration  of   blood.  It  is  highly  improbable  that deceased could  have sustained those injuries if both of his arms were held in the firm grip of anyone else.      We are not satisfied from the prosecution evidence that appellants 2  to 4  would have  done the  act attributed  to them. We  are therefore,  unable to sustain their conviction and sentence.      Regarding first  appellant- Yudhvir,  the  position  is entirely different. He admitted his presence at the scene of occurrence; he  also admitted that there was an encounter on the previous  day between him and the deceased. According to him while  he was travelling in the bus) deceased Anup Singh and his  associates (PW1  and PW2)  tried to drag him out of the bus  and when  he got  down he was assaulted by them and consequently he  fell down.  Of course, he did not say as to what followed thereafter.      Deceased Anup  Singh sustained,  apart from the incised injuries adverted  to above,  a very  serious spindle shaped incised wound  on the  chest which  had fractured  a rib and pierced into  the paracardium  and also  the ventricle.  The other incised  wounds on  his fingers  and upper  arms could have been  the consequence  of warding  off the  blows  with sharp weapon.  PW 1  in the  same episode sustained a muscle deep incised  wound  5x1  cm.  on  the  left  bottocks.  PW2 sustained  a  stab  wound  on  his  left  thigh.  Those  two witnesses have  said that they and the deceased were stabbed by the  first appellant  with a knife. We have no difficulty in believing  their version  that it was the first appellant who inflicted the injuries on the deceased as well as on PW1 and PW2.      But then  the question is, who was the aggressor in the incident. In  this  context,  we  may  point  out  that  the conductor of  the bus (Mahabir) was cited by the police as a witness to  the occurrence but the Public Prosecutor did not examine him  merely on  the ground that such examination was not necessary. The prosecution has, therefore, now to depend upon the testimony of the injured witnesses for establishing that first  appellant was  the aggressor. Non-examination of Mahabir, according  to us, has badly damaged the prosecution case with regard to the commencing part of the occurrence.      We may  now refer to the fact that first appellant also sustained some  injuries and he too was admitted in the same hospital on  the same  day (almost  at the same time) as the deceased and  the other  injured were  admitted. Of  course, those injuries  on the  first appellant  were simple, but in the  circumstances,   we  cannot   overlook  those  injuries altogother. We  are, therefore, not inclined to rule out the case of  first appellant  that he  was first attacked by the deceased in  the company  of his  associates  PW1  and  PW2. Hence, first  appellant would  have  had  initial  right  of private defence.  But he  had clearly  exceeded his right by inflicting fatal  injuries to  the deceased  with  a  lethal weapon. In  this view  of the  matters  first  appellant  is liable to  be convicted  only under  section 304 (part I) of the Indian Penal Code and not under section 302, IPC.      In the  matter of  sentence, Sri  U.R.  Lalit,  learned Senior Counsel  who argued  for first  appellant invited our



attention to  certain mitigating circumstances. One is that, first appellant  was below  the age  of 21 when the incident happened;  second  is  that  he  was  pitted  against  three persons, two  of whom were wrestlers. Learned Senior Counsel further pointed out that during the pre-trial period as well as post  conviction period,  first appellant  has  undergone imprisonment for  a few  years in connection with this case. We are  persuaded to  take such  circumstances into  account while fixing the quantum of sentence to be awarded to him.      In the result, we set aside the conviction and sentence passed on  appellants 2  to 4  and acquit them. We alter the conviction of  first appellant to section 304 (PartI) of the Indian Penal  Code and sentence him to rigorous imprisonment for-the period  he has  already undergone in connection with this case.  the bail-bonds  executed by  the appellant would stand discharged.