REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1253 of 2008
Dahari & Ors.
…Appellants
Versus
State of U.P.
…Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and order
dated 27.4.2007 in Criminal Appeal No. 3990 of 2005 passed by the High
Court of Judicature at Allahabad, partly allowing the appeal against
the judgment and order dated 7.9.2005 passed by the Sessions Court,
Azamgarh, in Sessions Trial No. 215 of 1991, convicting the appellants
and the co-accused under Sections 302, 149 and 148 of Indian Penal
Code, 1860 (hereinafter referred to as the `IPC’) and sentencing them
to undergo rigorous imprisonment for life, and also one year RI, under
Section 148 IPC respectively and further, to pay a fine of Rs.10,000/-
on each count, and in default of such payment, to further undergo a
term of four months RI.
2. The facts and circumstances giving rise to this appeal are as
follows:
A. On 7.9.1990, Tej Bahadur (deceased) was travelling on a motor
bike alongwith his friend Ashok at 9.00 a.m. and while doing so, he
was followed by his two brothers, namely, Man Bahadur and Raj Bahadur
who were both on a moped in the village of Kiratpur, district Azamgarh.
The deceased was riding the motor cycle, while Ashok was the pillion
rider. When they left the village, they saw the appellants and the
other accused come out of a sugarcane field, armed with country made
pistols with which they fired at the deceased, killing him
instantaneously. After this, they immediately ran away.
B. The incident was witnessed by one Rajesh Singh (PW.3) and also
Shashi Bhushan (PW.5), alongwith some other persons. Man Bahadur
(PW.1) and Raj Bahadur (PW.2) shifted the dead body of the deceased and
laid it near a Mango grove, beside the road.
C. Man Bahadur (PW.1) then lodged an FIR at 10.05 a.m. at a police
station which was at a distance of about 12 K.M. from the place of
occurrence of the incident. Mr. Sarvdev Singh (PW.4), I.O. thereafter
began investigation. He came to the said spot, recovered the dead body,
the cartridges and pellets, blood stained earth etc. from the
aforementioned place of occurrence and prepared the panchnama. The
I.O. then also recorded the statement of witnesses and after concluding
the said investigation, submitted a charge sheet against 7 accused
persons.
D. The learned trial Court, after holding trial, vide judgment and
order dated 7.9.2005 convicted and sentenced all the seven accused
persons, as has been stated hereinabove.
E. Aggrieved, all seven accused persons preferred Criminal Appeal
No. 3990 of 2005 before the High Court, and by impugned judgment and
order of the High Court, dated 27.4.2007, the conviction and sentence
of the appellants was maintained. However, three of the convicts
namely, Bane, Patiram and Phool Chand were acquitted of all charges.
Hence, this appeal.
3. Shri S.R. Singh, learned senior counsel appearing for the
appellants submitted that the High Court committed an error by
convicting the appellants under Sections 302, 149 and 148 IPC, as after
the acquittal of three persons among the accused, the total number of
accused in the said case, are only four. Therefore, the provisions of
Section 149 IPC would no longer be attracted. Moreover, the prosecution
withheld its most material witness, that is, Ashok, the pillion rider
of the motorcycle ridden by the deceased, Tej Bahadur and no
explanation whatsoever was furnished, by the prosecution for his non-
examination. Furthermore, it was not possible to inflict upon the
deceased, the said gun shot injuries in the presence of a pillion
rider on the motor bike. Shashi Bhushan (PW.5), a prime witness to the
incident, turned hostile and did not support the case of the
prosecution. Man Bahadur (PW.1) and Raj Bahadur (PW.2) are the real
brothers of the deceased and therefore, their testimony should not be
believed, as they are no doubt, interested witnesses. The evidence on
record is insufficient to convict the said appellants. In view of the
fact that the High Court acquitted three among the accused persons, dis-
believing the testimony of the witnesses, there is no justification for
the Court to convict the said appellants herein. Thus, the appeal
deserves to be allowed.
4. On the contrary, Shri Pramod Swarup, learned senior counsel
appearing for the State vehemently opposed the appeal, contending that
the law does not require one to discard the testimony of witnesses who
are closely related to the deceased/victim. Their evidence must in
fact, be examined with due care and caution. The appellants must not be
allowed to take the benefit of any technicalities. In case the High
Court acquitted the three accused, it ought to have convicted the said
appellants with the aid of Section 34 IPC. The appeal therefore, lacks
merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned counsel
for the parties and perused the record.
6. In the post-mortem report, the following injuries were found on
the person of the deceased.
EXTERNAL: -
1. Gun shot wound of entry half cm x half cm x chest cavity
deep irregular margin situated on left pectoral area five cm
below left nipple.
2. Gun shot wound of exit Three cm x two cm x through eight
cm lateral to thoracic-3, communicating to injury no one
directing backward horizontally.
3. Gun shot wound of entry 2.4 cm x cavity deep situated over
lateral part of back fourteen cm below and in line to left
shoulder joint with irregular margin.
4. Gun shot wound of Exit 4 cm x 3 cm Through on right
pectoral area eight cm above RT nipple at Ten O'clock position
communicating to injury number three.
5. Gun shot wound of entry one cm x one cm x cavity deep with
irregular margin situated on back at throaic-5.
6. Gun shot wound of Exit Two cm x one cm x through, ten cm
lateral to left nipple communicating to injury number five.
7. Gun shot wound of entry one cm x one cm x bony deep
irregular margin with multiple abrasion on right half of face
and neck and fracture of scapula and humerus bone was found.
8. Gun shot wound of Entry one cm x one cm x muscle deep
irregular margin, five cm left lateral to L4 spine.
9. Gun shot wound of Exit two cm x two cm x muscle deep
situated on middle of Right Glutal area communicating to injury
number eight.
The doctor opined the cause of death due to shock and
haemorrhage as a result of ante- mortem injuries.
7. The medical evidence i.e. the deposition of Dr. A.K. Pandey
(PW.6) corroborates the ocular version of events as has been given by
the eye-witnesses, from which it can be understood that there were a
total of five gun shot injuries. It was also stated that the deceased
had fallen down and was then surrounded by the accused persons, who
shot at him repeatedly. Thus, there is no incompatibility in the oral
evidence and the medical evidence, on record.
8. In the instant case, the FIR was lodged within a period of one
hour, at a police station which was at a distance of 12 kms. from the
place of occurrence, and this goes to prove that Man Bahadur (PW.1)
and Raj Bahadur (PW.2) were in fact, present at the place of occurrence
and were in a position to see the accused from close quarters. They
were also all known to the witnesses. The reason that they happened to
be accompanying the deceased was because they were all going to the
Azamgarh Court in relation to a criminal case, relating to the murder
of one Gharbharan, in which Raghu Prakash, son of Raj Bahadur (PW.2),
was the accused. There is nothing in the cross-examination of the eye-
witnesses to cast a doubt upon the veracity of their testimony or to
discredit it in anyway.
9. It is a settled legal proposition that the evidence of closely
related witnesses is required to be carefully scrutinised and
appreciated before any conclusion is made to rest upon it, regarding
the convict/accused in a given case. In case the evidence has a ring of
truth to it, is cogent, credible and trustworthy, it can, and certainly
should, be relied upon. (Vide: Himanshu v. State (NCT of Delhi),
(2011) 2 SCC 36; Ranjit Singh v. State of M.P., AIR 2011 SC 255; and
Onkar & Anr. v. State of Uttar Pradesh, (2012) 2 SCC 273).
10. Man Bahadur (PW.1) and Raj Bahadur (PW.2) undoubtedly, are the
real brothers of the deceased. They, at the time of the incident, were
following the deceased on their ‘Moped’. They have supported the case
of the prosecution to the fullest extent, and even though they were
thoroughly questioned by the defence in the course of cross-
examination, they did not elicit anything which could shake their
testimony. Thus, we do not see any reason to discard their testimonies.
11. So far as the non-production of Ashok, the most material witness
to the case is concerned, it is evident from the record that during the
cross-examination of Sarvdev Singh, I.O. (PW.4), none of the said
accused voiced their concerns or raised any apprehension regarding the
non-examination of Ashok. He was the only competent witness who would
have been fully capable of explaining correctly, the factual situation.
In such a situation, the appellants cannot be permitted to advance an
argument stating that since the most material witness was withheld by
the prosecution therefore, adverse inference should be drawn against
them.
12. It has also been canvassed on behalf of the appellants that it
seems rather improbable, that despite the fact that several injuries
were caused to the deceased, the pillion rider did not receive a single
injury, and therefore, the veracity of the entire case of the
prosecution is doubtful. This very issue has been considered at length,
by both the courts below. They have come to the reasoned conclusion
that the pillion rider must have run away to save his life and hence,
escaped injury. The evidence on record is to the extent that the
deceased had fallen down and that he was then surrounded by the accused
and fired upon. Thus, nothing turns in favour of the appellants based
on this point raised by them.
13. In the instant case, there was undisputedly, prior ill-will
existing between the parties, as criminal cases were pending between
them and Ravi Prakash, son of Raj Bahadur (PW.2) was still in jail in
connection with the same. Hence, there was sufficient motive for the
appellants to kill the deceased.
14. Another question worth consideration is whether the appellants
can be convicted under Section 302 r/w Section 149 IPC in the event
that the High Court has acquitted three persons among the accused and
the number of convicts has thus, remained at a number that is less than
5, which is in fact, necessary to form an unlawful assembly as
described under Section 141 IPC.
15. This Court in Amar Singh v. State of Punjab, AIR 1987 SC 826,
held as under:
“As the appellants were only four in number, there was no
question of their forming an unlawful assembly within the
meaning of Section 141 IPC. It is not the prosecution case that
apart from the said seven accused persons, there were other
persons who were involved in the crime. Therefore, on the
acquittal of three accused persons, the remaining four accused,
that is, the appellants, cannot be convicted under Section 148
or Section 149 IPC for any offence, for, the first condition to
be fulfilled in designating an assembly an “unlawful assembly”
is that such assembly must be of five or more persons, as
required under Section 141 IPC. In our opinion, the convictions
of the appellants under Sections 148 and 149 IPC cannot be
sustained.” (Emphasis added)
16. Similarly, in Nagamalleswara Rao (K.) & Ors. v. State of Andhra
Pradesh, AIR 1991 SC 1075, this Court observed:
“8. However, the learned Judges overlooked that since the
accused who are convicted were only four in number and the
prosecution has not proved the involvement of other persons and
the courts below have acquitted all the other accused of all the
offences, Section 149 cannot be invoked for convicting the four
appellants herein…. It is not the prosecution case that apart
from the said 15 persons there were other persons who were
involved in the crime. When the 11 other accused were acquitted
it means that their involvement in the offence had not been
proved. It would not also be permissible to assume or conclude
that others named or unnamed acted conjointly with the charged
accused in the case unless the charge itself specifically said
so and there was evidence to conclude that some others also were
involved in the commission of the offence conjointly with the
charged accused in furtherance of a common object.
(Emphasis added)
17. Similarly, this Court in Mohammed Ankoos & Ors. v. Public
Prosecutor, High Court of Andhra Pradesh, Hyderabad, AIR 2010 SC 566,
held as under:
“35. Section 148 IPC creates liability on persons armed with
deadly weapons and is a distinct offence and there is no
requirement in law that members of unlawful assembly have also
to be charged under Section 148 IPC for legally recording their
conviction under Section 302 read with Section 149 IPC. However,
where an accused is charged under Section 148 IPC and acquitted,
conviction of such accused under Section 302 read with Section
149 IPC could not be legally recorded. We find support from a
four-Judge Bench decision of this Court in Mahadev Sharma v.
State of Bihar, AIR 1966 SC 302…”:
18. Undoubtedly, this Court has categorically held that in such a
situation, a conviction cannot be made with the aid of Section 149
IPC, particularly when, upon the acquittal of some of the accused, the
total number of accused stands reduced to less than 5, and it is not
the case of the prosecution that there are in fact, some other accused
who have not yet been put to trial. However, it is also a settled
legal proposition that in such a fact-situation, the High Court could
most certainly have convicted the appellants, under Section 302 r/w
Section 34 IPC.
19. In Nethala Pothuraju & Ors. v. State of Andhra Pradesh, AIR 1991
SC 2214, this Court while considering a similar case, held that the
non-applicability of Section 149 IPC is no bar for the purpose of
convicting the accused under Section 302 r/w Section 34 IPC, if the
evidence discloses the commission of an offence, in furtherance of the
common intention of such accused. This is because, both, Sections 149
and 34 IPC deal with a group of persons who become liable to be
punished as sharers in the commission of an offence. Thus, in a case
where the prosecution fails to prove that the number of members of an
unlawful assembly are 5 or more, the court can simply convict the
guilty persons with the aid of Section 34 IPC, provided that there is
adequate evidence on record to show that such accused shared a common
intention to commit the crime in question.
A similar view has been re-iterated in Jivan Lal & Ors. v. State
of M.P., (1997) 9 SCC 119; and Hamlet @ Sasi & Ors. v. State of
Kerala, AIR 2003 SC 682.
(See also: Willie (William) Slaney v. State of M.P., AIR 1956 SC 116;
Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326; Gurpreet
Singh v. State of Punjab, AIR 2006 SC 191; Sanichar Sahni v. State of
Bihar, AIR 2010 SC 3786; S. Ganesan v. Rama Raghuraman & Ors., (2011)
2 SCC 83; and Darbara Singh v. State of Punjab, JT 2012 (8) SC 530).
In view of the above, we do not find any force in the
aforementioned submissions of the appellants and the same are not
worth acceptance.
20. It is a broad day light murder at 9.00 a.m. on the main road.
The eye-witnesses had been following the deceased on the ‘Moped’ as
they had to attend the court’s proceedings at Azamgarh. The enmity
between the parties stood fully established as criminal cases were
pending between them. The case of the prosecution stood fully
corroborated by the medical evidence and the ocular evidence. It is
not probable that the real brothers of the deceased who had been the
eye-witnesses would implicate the appellants falsely sparing the real
assailants, though false implication of some of the persons may not be
ruled out. Thus, the High Court was justified in acquitting some of
the convicts as they did not belong to the family of the
appellants/assailants.
The appeal is hence, devoid of any merit and is therefore,
accordingly dismissed.
…..………………………….J.
(Dr. B.S. CHAUHAN)
…..….…….….…….……………………………J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
New Delhi,
October 11, 2012
