NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1523 OF 2008
Ram Vishambhar & Ors. ... Appellant(s)
Versus
State of U.P. Through Home Secretary ... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1524 OF 2008
J U D G M E N T
RANJAN GOGOI, J.
Both these appeals arise out of the common judgment and order dated
23.8.2007 passed by the High Court of Allahabad whereby the conviction of
the appellants, (6 in number) inter alia, under Section 302 of the Indian
Penal Code (hereinafter for short “the Code”) has been affirmed. Each of
the accused-appellants in the two appeals under consideration have been
sentenced to undergo RI for life besides to serve out further periods of
imprisonment for commission of lesser offence details of which are being
noticed hereinafter.
2. The prosecution case in short is that accused Jagdeo, Sahdeo,
Jagroop and Manni Lal are the sons of accused Ram Vishambhar whereas
accused Raj Bahadur is related to the accused Ram Vishambhar. On the other
hand, complainant Bhagwat Prasad (PW-1) is the brother of one Rameshwar
Prasad whereas Ram Sanehi (injured witness No. 2), Girija Shankar (PW-3)
and Ram Khilawan are the sons of Rameshwar Prasad. Sarju Prasad (PW-4) and
Mahendra Kumar are the sons of Ram Khilawan while Km. Sheela (injured) and
Km. Gayatri Devi (deceased) are the daughters of Ram Khilawan.
The relationship between the two families was strained and there were
disputes between them. According to the prosecution, on 20.3.1981 at about
10.30 p.m. while Holi procession was taken out in the village hot words
were exchanged between accused Raj Bahadur and Sarju Prasad (PW-4). When
the procession had reached near the house of accused Raj Bahadur,
allegedly, the aforesaid accused had threatened PW-4 Sarju Prasad with a
country made pistol. Thereupon, Sarju Prasad fled to his house and
complained to Bhagwat Prasad (PW-1), Rameshwar Prasad, Girija Shankar (PW-
3), Ram Sanehi (PW-2) and Mahendra Kumar that the accused Raj Bahadur had
threatened him. According to the prosecution, the accused persons then
arrived at the house of the complainant. While accused Raj Bahadur and
Manni Lal were holding Tamanchas (country made pistols), the rest of the
accused had come armed with lathis. Thereafter, all the accused started
abusing and beating Girija Shankar, Ram Sanehi, Sarju and Mahendra Kumar
with lathis. As some resistance was offered by the party of the
complainant, particularly Ram Sanehi (PW-2), accused Manni Lal fired at him
as a result of which Ram Sanehi sustained injuries. According to the
prosecution accused Raj Bahadur also fired at PW-4 Sarju Prasad. However,
instead of Sarju Prasad, Km. Sheela was hit as a result of which she
sustained injuries. Accused Raj Bahadur is reported to have fired a second
shot at Sarju Prasad which once again missed the target and hit Gayatri
Devi who died instantaneously. According to the prosecution, the accused
persons thereafter entered the house of accused Ram Vishambhar and firing
was heard inside the house of the aforesaid accused.
3. PW-1 Bhagwat Prasad dictated the written report (Exh. Ka-1) which was
scribed by one Ram Kishore and the same was submitted in the Police Station
Jafarganj at about 4.30 a.m. on 21.3.1981. On the basis of the said report
the FIR (Exh. Ka-3) was registered and investigation was undertaken by one
Jai Karan Singh (PW-8) who was posted as S.O. Jafarganj Police Station.
Proceeding to the place of occurrence PW-8 found the dead body of Gayatri
Devi lying at the door of house of Rameshwar Prasad. Inquest was held and
the dead body was sent for postmortem examination. PW-8 also found
injuries on the person of Ram Sanehi, Km. Sheela, Sarju Prasad and Mahendra
Kumar who were sent for medical examination which was conducted on
21.3.1981 and 22.3.1981. PW-3 Girija Shankar, who also sustained injuries
in the incident, was also sent for medical examination on 24.3.1981.
Thereafter, on completion of investigation, chargesheet was submitted
against all the accused persons under Sections 147, 148, 149, 307 and 302
IPC. The offences alleged against the accused being exclusively triable
by the Court of Sessions, the case was committed to the Court of the
learned Sessions Judge, Fatehpur who framed charges against the accused
appellants under the aforesaid provisions of the Penal Code. As the
accused persons denied the charges and claimed to be tried, the prosecution
examined ten witnesses in support of its case besides exhibiting several
documents. Four witnesses were examined on behalf of the accused and two
witnesses, i.e., Budh Behari Pandey and Dhani Ram Yadav were examined as
Court witnesses. Thereafter at the conclusion of the trial while the
accused Raj Bahadur was convicted under Section 302 read with Section 301
IPC, the remaining 5 accused were convicted under the aforesaid section
with the aid of Section 149 IPC. Additionally, accused Raj Bahadur and
Manni Lal were convicted under Section 148 and 307 as well as under Section
323 of the Code and the remaining co-accused, i.e. Ram Vishambhar, Jagdeo,
Jagroop and Sahdeo were convicted under Section 147 and also Section 323
and 307 IPC read with Section 149 IPC. The sentences imposed on the
accused-appellants for the lesser offences need not be specifically noticed
as all such sentences were directed to run concurrently alongwith the
period of life imprisonment imposed on each of the accused persons under
Section 302 IPC. Aggrieved the two appeals in question have been filed by
the accused appellants.
4. We have heard Mr. Deepak Goel, Advocate for the appellants in Crl.
Appeal No. 1523/2008, Mr. J.C. Gupta, Sr. Advocate for the appellants in
Crl. Appeal No. 1524/2008 and Mr. S.R. Singh, Sr. Advocate for the State of
Uttar Pradesh.
5. Before proceeding any further as the defence had put up a specific
version of the incident and, in fact, a complaint in this regard was lodged
before the police station (Exh. Ka-11) by accused Ram Vishambhar, the said
defence of the accused may be noticed in some details.
According to the accused the complainant and his family members had
celebrated Holi in the plot No. 1290 belonging to the accused Ram
Vishambhar. When the said accused protested, PW-4 Sarju and others had
started beating him. Seeing the assault committed on their father accused
Jagdeo, Manni Lal and Sahdeo arrived at the spot and warned PW-4 Sarju and
others. Thereupon, according to the accused, PW-2 Ram Sanehi and PW-4
Sarju fired from the guns that they were carrying. Further more, PW-3
Girija Shankar was also armed with a gun which, however, fell on the
ground. The aforesaid gun was picked up by some relation of the accused
who fired two shots towards Ram Sanehi and others, in defence. According
to the accused, PW-2 and PW-4 had fired 3 more shots in the course of the
incident and the same had hit the deceased Gayatri Devi as well as her
sister Sheela who sustained injuries.
6. The argument advanced by the learned counsel for the appellants has
delved upon the injuries sustained by the accused Jagroop, Sahdeo and Manni
Lal, which though proved by the evidence of DW-2, had not been explained in
any manner by the prosecution. Learned counsel has submitted that the
defence by examining DW-3 Jagdev Prasad has proved that the accused Jagdeo
was not present at the place of occurrence. It is also urged that the
evidence of DW-4 Ram Karan clearly discloses that it is the party of the
complainant who were aggressors and who had fired upon the accused first.
Learned counsel has pointed out that though there was some firing by the
accused the same was in self defence and in any event the testimony of DW-4
clearly establishes that it is the shots fired by PW-2 Ram Sanehi and PW-4
Sarju Prasad which had accidently injured Km. Sheela and had also hit
deceased Gayatri who succumbed to her injuries. The evidence adduced by the
witnesses examined on behalf of the accused, according to learned counsel,
has not been shaken or discredited in any manner in the cross-examination.
Coupled with the injuries suffered by the accused for which there is no
explanation forthcoming the defence version is eminently acceptable. In any
case the said version casts considerable doubt on the prosecution case.
Learned counsel has further submitted that the injuries sustained by the
accused could not have been self-inflicted inasmuch as the accused were
arrested immediately after the incident and their medical examination was
conducted while they were in custody. Pointing to the previous enmity
between the two families and the free exchange of assault and use of fire
arms by either parties, it is submitted that no case for invoking the
liability under Section 302 of Penal Code is made out so as to warrant the
conviction of the accused-appellants. In any case, according to learned
counsel, Section 149 IPC will have no application for the purpose of
determination of the liability of any of the accused in the present case.
7. Opposing the contentions advanced on behalf of the appellants, the
learned State counsel has submitted that the prosecution witnesses,
particularly the injured eyewitnesses, have given a consistent version of
the occurrence and the precise and specific role of each of the accused. No
inconsistency, muchless any contradiction, is discernible. On the other
hand, according to the learned State counsel, the defence version is highly
improbable. In the complaint lodged by accused Ram Vishambhar (Exh. Ka-11)
there is no mention of the injuries sustained by any of the accused. Apart
from the aforesaid vital omission learned counsel has pointed out the
inconsistency between the version as stated in Exh. Ka-11 and the version
narrated by accused Ram Vishambhar in his statement recorded under Section
313 Cr.P.C. as regards the place of occurrence. It is also pointed out that
the incident took place in the house of the complainant where the dead body
of Gayatri Devi was found lying and not as claimed by accused Vishambhar
either in the FIR (Ex-Ka-11) or in his statement recorded under Section 313
Cr.P.C. The above, according to the learned counsel, would go to show the
utter falsity of the claim of the accused. Insofar as the injuries on the
accused are concerned, learned counsel has pointed out that such injuries
are simple in nature. Furthermore, the possibility of the said injuries
being self-inflicted cannot be ruled out inasmuch as according to the
prosecution witnesses a gun shot was heard from the inside the house of the
accused Ram Vishambhar. It is also contended that the injuries sustained by
the accused being simple, absence of any explanation therefor will not
erode the credibility of the prosecution version.
8. Five witnesses to the alleged crime were examined by the prosecution
out of which PW-1 Bhagwat Prasad is the first informant who had lodged the
FIR and PW-5 Rang Pal is an independent witness. PW-2 Ram Sanehi, PW-3
Girija Shankar and PW-4 Sarju Prasad are the injured eye witnesses. The
version of the aforesaid five witnesses is in substance the same. According
to the aforesaid eye witnesses while the Holi Dahan procession was
proceeding and had reached the house of accused Raj Bahadur, the said
accused started abusing PW- 4 Sarju Prasad and had pointed a country made
pistol at him i.e. PW-4. Thereafter, according to the witnesses, Sarju
Prasad ran away to his house and informed about the incident to Rameshwar,
Bhagwat Prasad (PW-1), Ram Sanehi (PW-2), Ram Khilawan and Girija Shankar
(PW-3) who were sitting inside the house. While PW-4 Sarju was narrating
the incident to his family members all the six accused persons came to the
spot. While the accused Raj Bahadur and Manni Lal were armed with country
made pistols the remaining four accused were armed with lathis. According
to the eye witnesses the accused were shouting that the family of the
complainant should be done away with as they were old enemies. It is the
consistent version of the prosecution witnesses that the accused armed with
lathis assaulted the family of the complainant and the accused Manni Lal
fired at Ram Sanehi hitting him on his head. Thereafter accused Ram Bahadur
fired at Sarju but the shot missed him and, instead, hit Sheela causing
injuries on her arm. Thereafter accused Ram Sanehi fired a second shot at
Sarju which once again missed him and instead hit Gayatri Devi who fell
down and died instantaneously. Thereafter all the accused persons entered
the house of Ram Vishamhar. A little later firing was heard from inside the
house of Ram Vishambhar. According to the eye witnesses all the accused
could be identified as the incident had occurred on a moonlit night and
further there was a lantern burning at the door of the house of Rameshwar.
9. The injuries sustained by PWs 2, 3 and 4 as well as those suffered by
injured Sheela were proved by the prosecution by examining PW-9 Dr. G.S.
Gaur and PW-10 Dr. Y. Vishwakarma who had examined the injured persons on
different dates i.e. 21.3.1981, 22.3.1981 and 24.3.1981.The prosecution had
also examined Dr. S.K. Singh (PW-6) who had conducted the post mortem of
the deceased. On the basis of the evidence of the said witness i.e. PW-6
and the post mortem report (Exh. Ka-2) the prosecution had sought to
establish that the deceased Gayatri had died on account of gunshot
injuries.
10. As against the aforesaid evidence adduced by the prosecution to
establish the charges levelled against the accused, the defence had
examined four witnesses. The evidence tendered by DWs 2, 3 and 4 would
require specific notice. DW-2 Dr. S.N. Mishra (Jail Doctor) had examined
accused Jagroop on 23.3.1981 and accused Sahdeo and Manni Lal on 27.3.1981.
He had certified that the injuries found on the accused were simple and
superficial. DW-3 Jagdev Prasad had been examined to prove that the accused
Jagdeo was not present at the place of occurrence and DW-4 Ram Karan was
examined to prove that it is the complainant party who were the aggressors
and it is on account of the firing resorted to by PW-2 Ram Sanehi and PW-4
Sarju that Gayatri Devi had died. Coupled with the above, the absence of
any explanation on the part of the prosecution with regard to the injuries
on the accused will also have to be carefully weighed while considering the
culpability or otherwise of the accused-appellants with regard to the crime
alleged against them.
11. Insofar as the evidence of DW-3 Jagdev Prasad and DW-4 Ramkaran is
concerned there appears to be certain inherent lacunae which makes it
difficult for us to accept the defence version so as to conclude that the
same casts any serious doubt on the prosecution story. If accused Sarju,
Ram Sanehi and Girija Shankar had suffered gun shot injuries in the course
of the same incident, surely, the said fact would have found a mention in
the complaint/FIR lodged by Ram Vishamabar (Exh.Ka-11). The said fact,
though goes to the root of the defence version, is conspicuously absent in
Exh. Ka-11. Two different versions with regard to the place of the
occurrence has been unfolded by the defence. While in statement recorded
under Section 313 Crl.P.C. accused Ram Vishambhar had stated that on the
day of occurrence Holi Dahan was performed in his field at the instance of
Bhagwat Prasad and others and as he had asked them not to perform Holi
dahan, Sarju and his associates had beaten him with fists and kicks seeing
which his sons Jagroop, Manni Lal and Sahdeo had came to his rescue
whereupon they were fired at by Sarju and others. As against the aforesaid
version, the FIR version narrated by accused Ram Vishambhar is to the
effect that on 20.3.1981 at about 10.30 pm accused Jagroop was coming to
his house from the place of Holi celebrations when PW-4 Sarju started
abusing him and at that very time PW-2 Ram Sanehi and PW-3 Girija Shankar
armed with guns and PW-4 Sarju armed with country made pistol had
threatened him (accused Jagroop) with murder and had started beating Ram
Vishambar and further that when accused Jagroop tried to rescue his father,
Girija Shankar (PW-3) fired as a result of which Jagroop sustained fire
arm injuries. Not only the said versions are inconsistent with each other
both are belied by the fact that the dead body of the deceased Gayatri
Devi was found in the house of Rameshwar.
12. The above lacunae, in our considered view, when considered in the
backdrop of the consistent version of the prosecution witnesses makes the
defence version unworthy of acceptance.
13. The next question that has to be addressed is the effect of the
injuries sustained by the accused Jagroop, Sahdeo and Manni Lal. According
to the defence the said injuries were sustained in the course of the same
incident. All the said injuries have been proved by the evidence of DW-2
Dr. S.N. Mishra who had conducted the medical examination of the accused
while they were in police custody. No explanation, whatsoever, has been
offered by the prosecution with regard to the said injuries. On the
aforesaid basis, it is contended that in the course of the incident in
question there had been an exchange of fire from both sides. It is not
possible to label the accused as the aggressors. Therefore, according to
the defence no liability under Section 302 IPC can be attributed to any of
the accused. In any event, as there was a free exchange of fire between
both the sides, common object to commit any particular offence cannot be
attributed to the accused and Section 149 of IPC cannot be invoked in the
present case.
14. We have carefully considered the above aspect of the matter. In this
regard, we have scrutinized the evidence adduced by the prosecution
witnesses as well as by the defence. The prosecution witnesses have been
clear, consistent and categorical in stating that they could see and
recognize each of the accused as the incident had occurred on a moonlit
night and also there was a lantern burning in the house of Rameshwar. The
said witnesses have been equally emphatic in saying that they had not
noticed any injuries on any of the accused persons after the incident was
over. The injuries suffered by accused, though gun shot injuries, have been
stated by DW-2, Dr.S.N. Mishra to be simple and superficial injuries.
Occurrence of firing inside the house of accused Ram Vishambar after the
main incident was over has been deposed to by the prosecution witnesses
with a fair amount of clarity and consistency. Despite the above we would
not venture into the reasons that had led to the aforesaid injuries on the
accused inasmuch as the nature of the injuries on the accused being simple
and superficial the same can be ignored on the basis of principles of law
laid down by this Court which have virtually set at rest the issue raised
on behalf of the accused. In this regard the observations of this Court in
Para 40 of the report in Ram Pat v. State of Haryana[1] would be
significant and therefore may be usefully extracted below:
“40. It has furthermore well settled that whereas grievous injuries
suffered by the accused are required to be explained by the
prosecution, simple injuries need not necessarily be. Non explanation
of simple injuries of the nature suffered by the accused would not be
fatal. In Hari v. State of Maharashtra : 2009(4) SCALE103, this Court
held:
30. On the other question, namely, non- explanation of injury on
the accused persons, learned Counsel for the appellant has cited
a decision
in Lakshmi Singh and Ors. v. State of Bihar :
1976CriLJ1736.
In the said case, this Court while laying down the principle that the prosecution has a duty to explain the injuries on the person of an accused held that non-explanation assumes considerable importance where the evidence consists of interested witnesses and the defence gives a version which competes in probability with that of the prosecution case.
31.But while laying down the aforesaid principle, learned
Judges in paragraph 12 held that
there are cases where the non-
explanation of the injuries by the prosecution may not affect
the prosecution case.
This would "apply to cases where the
injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and creditworthy, that it
far outweighs the effect of the omission on the part of the
prosecution to explain the injuries."
Therefore, no general
principles have been laid down that non-explanation of injury on
accused person shall in all cases vitiate the prosecution case.
It depends on the facts and the case in hand falls within the
exception mentioned in paragraph 12 in Lakshmi Singh (supra).”
15. In the present case, taking into account the evidence tendered by the
prosecution witnesses and having regard to the nature of the injuries
sustained by the accused, we are of the view that the absence of any
explanation on the part of the prosecution with regard to the injuries
suffered by the accused will not effect the core of the charges levelled
against the accused-appellants.
All the six accused on the day of the
occurrence had assembled in front of the house of Rameshwar.
They were
armed with lethal weapons and were threatening to kill the family members
of the complainant.
Initially the accused persons had assaulted the family
members of the complainant with lathis.
Thereafter accused Manni Lal fired
at PW-2 Ram Sanehi from the weapon he was carrying and injured him. Accused
Raj Bahadur fired twice at PW-4 Sarju.
Both the shots had missed the target
and had instead, caused injuries to Kr. Sheela and one of the shots fired
by the said accused Raj Bahadur had resulted in the death of Gayatri Devi.
On the said facts, we can find no error in the conviction of the accused
Raj Bahadur under Section 302 read with Section 301 IPC as well the
conviction recorded against the said accused Raj Bahadur and accused Manni
Lal under Section 307 IPC.
We are, further, of the view that the facts
proved by the prosecution clearly establishes that the accused persons had
formed an unlawful assembly the common object of which was to cause death
of the members of the family of the complainant.
The remaining accused,
therefore, are liable under Section 149 IPC for the death of Gayatri Devi
and also for the lesser offences committed under Section 307 and 323/149
IPC in the course of prosecution of the common object of the unlawful
assembly.
It is also our considered view that the conviction of the two
sets of accused under Sections 147 and 148 IPC has been correctly made. As
the sentences for the lesser offences have been directed to run
concurrently with the sentence of life imprisonment imposed on each of the
accused there will be no occasion for us to cause any interference with any
of the sentences imposed.
16. Accordingly, we find no merit in either of the appeals so as to
warrant interference with the judgment and order dated 23.8.2007 passed by
the High Court of Allahabad. Consequently, both the appeals shall stand
dismissed and the convictions and sentences recorded against each of the
accused shall stand affirmed.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
January 11, 2013.
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[1] 2009 (7) SCC 614
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