Jharkhand High Court
Sohrai Yadav vs The State Of Bihar (Now Jharkhand) on 14 February, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
-1- Cr. Appeal (D.B.) No. 141 of 1994 (R)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 137 of 1994 (R)
(Against the Judgment of conviction and Order of sentence dated
18.08.1994, passed by the Sessions Judge, Singhbhum East,
Jamshedpur in S.T. No.229 of 1993).
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Sohrai Yadav, son of Uchal Yadav resident of Village Sonari,
New Goala Basti Road, Police Station Sonari, Jamshedpur,
District Singhbhum (East).
... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
With
Criminal Appeal (D.B.) No. 141 of 1994 (R)
1. Sheoji Yadav
2. Dilip Yadav
3. Pradeep Yadav
All sons of Late Moti Yadav of Gwala Basti, Sonari, P.S.
Sonari, Jamshedpur.
4. Ram Naresh Yadav, Son of Chulai Rai, resident of Cross
Road No.8, Sidhgora, P.S. Sidhgora, Jamshedpur.
... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ... Respondent
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For the Appellants : Mr. A.K.Kashyap, Sr. Advocate
Mr. P.S. Dayal, Advocate
Mr. Anurag Kashyap, Advocate
Mr. Supriya Dayal, Advocate
Mrs. Vani Kumari, Advocate
For the Resp.-State : Mr. Satish Prasad, Spl. P.P.
--------
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
C.A.V. on 31.01.2023 Pronounced on 14.02.2023
Per Sujit Narayan Prasad, J.
Since both these appeals arise out of the same impugned Judgment, as such, with the consent of the learned counsel for the parties, they have been heard together and are being Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-2- Cr. Appeal (D.B.) No. 141 of 1994 (R) disposed of by this common Judgment.
2. These appeals has been preferred under Section 374(2) of the Code of Criminal Procedure against the Judgment of conviction and Order of sentence dated 18.08.1994, passed by the Sessions Judge, Singhbhum East, Jamshedpur in S.T. No.229 of 1993, whereby, the appellants in both the cases have been found guilty and convicted for the offences under Section 302/34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Section 302/34 of the Indian Penal Code.
3. The prosecution story as per fardbeyan of Romani Devi (P.W.-3) wife of deceased Thegu Yadav is that on 14.07.1992 in the morning at about 7:00 a.m. deceased Thegu Yadav had left the house with his son to drop him at the school on a cycle. At about 8:00 a.m. in the morning the informant along with Kishori Yadav and Butan Yadav were present in the house when they heard cries of Thegu Yadav for safety. On hearing the cries, the informant along with Kishori Yadav and Butan Yadav, P.W.-1 and P.W.-4 respectively, came out of the house and ran towards the direction of the cries. They saw at a distance of about 70 yards that informant's husband, Thegu Yadav, deceased, was surrounded by all these five accused persons, namely, Dilip Yadav, Sheoji Yadav, Pradeep Yadav, all sons of Moti Yadav, Sohrai Yadav son of Uchahal Yadav all of Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-3- Cr. Appeal (D.B.) No. 141 of 1994 (R) Sonari, New Gowala Basti Road No.B/20, P.S. Sonari and Ram Naresh Yadav son of Chulhai Yadav of Siagora 10 number Basti one number khata, P.S. Sidgora, district East Singhbhum. All the accused persons had daggers in their hands. The husband of the informant was crying for safety. At that very moment Dilip pierced his dagger in the left side rib cage of the informant's husband and Ram Naresh Today also pierced his dagger in the name left side abdomen of the victim as a result of which Thegu Yadav fell down on the ground. After falling of the victim, the accused persons fled away towards northern side. The informant, Kishori Yadav and Butan Yadav reached near the victim and found that victim Thegu Yadav was in a pool of blood. They started weeping and immediately thereafter Thegu Yadav died. After the death, few neighbours of Sonari, namely, Kameshwar Yadav, Mahendra Yadav, Ram Ayodhya Yadav, Bachu Yadav and others came there to whom the informant gave out the details of the occurrence. It has been alleged that deceased Thegu Yadav had land dispute with accused Dilip Yadav and others and the dispute was pending in the court and, as such, due to that enmity the murder of her husband has been committed.
The matter has been investigated by the investigating agency and the charge having been found to be established in course of investigation, charge-sheet has been submitted.
The case was committed to the court of Sessions, where Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-4- Cr. Appeal (D.B.) No. 141 of 1994 (R) all the accused persons have pleaded not guilty and, as such, faced the trial.
The prosecution altogether has examined 7 witnesses including the Investigating Officer and the Doctor as also exhibited the documents such as postmortem report as Ext.1, inquest report as Ext.2, seizure list as Ext. 3, formal F.I.R. as Ext.4 and fardbeyan as Ext.5.
The learned trial court, on appreciation of the rival submissions advanced on behalf of the parties as also by taking into consideration the testimony of the prosecution witnesses, has found the charge against the appellants proved beyond all reasonable doubt and, as such, has convicted the appellants for commission of offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced all the appellants for R.I. for life for the offence under Section 302/34 of the Indian Penal Code, which is the subject matter of the instant appeals.
4. Mr. A.K.Kashyap, learned senior counsel for the appellants, assisted by Mr. P.S. Dayal, learned counsel, has put his appearance in Criminal Appeal No.141 of 1994.
Mrs. Vani Kumari, learned counsel has put her appearance in Criminal Appeal No.137 of 1994.
Mr. A.K.Kashyap, learned senior counsel, on instruction of learned counsel appearing in Criminal Appeal No.137 of 1994 has led the argument.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
-5- Cr. Appeal (D.B.) No. 141 of 1994 (R)
5. Mr. A.K.Kashyap, learned senior counsel for the
appellants has taken the following grounds in assailing the impugned judgment:-
(i) The conviction is based upon the testimony of P.W.1 Kishori Yadav, P.W.-3 Romani Devi, the informant and P.W.4 Butan Yadav, who are highly interested witnesses and, as such, conviction since is based upon highly interested witnesses, cannot be said to be justified since even though it has come in the testimony that local people had arrived at the place of occurrence but none of them has been examined as an independent witness. Therefore, since the conviction is based solely upon the testimony of the interested witnesses, the conviction based upon the same, cannot be said to be sustainable in the eyes of law.
(ii) The investigating agency has not answered as to why independent witnesses have not been examined in order to corroborate the occurrence and the testimony of P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav, the interested witnesses being related with the deceased.
(iii) The argument has been raised that the P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav cannot be said to be eye witnesses also for the reason that they are having grudge with the appellants since it has come in the testimony of these witnesses that there was dispute/enmity in between the deceased and the appellants over an issue and, as Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-6- Cr. Appeal (D.B.) No. 141 of 1994 (R) such, they have falsely been implicated in the instant case.
(iv) The further ground is that the P.W.1 Kishori Yadav, P.W.-
3 Romani Devi and P.W.4 Butan Yadav cannot be construed to be eye witness since there is wide contradiction regarding the house where these witnesses have been residing and said to have seen the occurrence. Rather, it would be evident from the testimony of P.W.1, P.W.3 and P.W.4 that they are residing at a place which is 4 km away from the place of occurrence and hence they cannot be construed to be eye witness but without taking into consideration this aspect of the matter, P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav since have been considered to be eye witness basis upon which the judgment of conviction has been passed, therefore, the impugned judgment also on this ground is not sustainable in the eyes of law.
(v) Learned senior counsel, in alternative, has also taken the ground that Section 302 of the Indian Penal Code will only be applicable against the accused persons namely, Dilip Yadav and Ram Naresh Yadav, against whom there is direct allegation of giving knife (Chhura) blow upon Thegu Yadav, the deceased, but without taking into consideration this aspect of the matter, the learned trial court has convicted all the appellants for commission of offence under Section 302/34 of the Indian Penal Code and, as such, on this ground also the impugned judgment is not sustainable in the eyes of law.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
-7- Cr. Appeal (D.B.) No. 141 of 1994 (R)
(vi) The learned senior counsel has further argued that there is directed allegation against appellants Dilip Yadav and Ram Naresh Yadav, of giving knife blow and they have been seen to have knife in their hands, hence, commission of offence under Section 302 of the Indian Penal Code is attracted against them, but so far as other appellants namely, Sohrai Yadav, Sheoji Yadav and Pradeep Yadav are concerned, there is no specific allegation against them and, as such, the same at best can be case of Part-I of Section 304 of the Indian Penal Code and not under Section 302 of the Indian Penal Code.
(vii) Learned senior counsel for the appellants has vehemently submitted on the basis of the aforesaid grounds that the impugned judgment is not sustainable in the eyes of law and, as such, the same may be quashed and set aside.
6. Per contra, Mr. Satish Prasad, learned A.P.P. appearing for the State, has submitted that it is incorrect on the part of appellants to take the ground that P.W.1 Kishori Yadav, P.W.- 3 Romani Devi and P.W.4 Butan Yadav are not the eye witness, rather, according to him, these witnesses are eye witnesses and have seen the occurrence, as would appear from their testimony, and as such, since the conviction is based upon the testimony of eye witnesses i.e., P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav, therefore, the argument which has been advanced on behalf of the appellants that the judgment of conviction cannot be said to Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-8- Cr. Appeal (D.B.) No. 141 of 1994 (R) be based upon the testimony of eye witnesses cannot be said to be an acceptable ground in view of the fact that the learned senior counsel has taken such ground on the basis of some contradiction in the testimony of P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav regarding their houses while in some of the places the description of the house situated at Sonari is there having khatal of the deceased and the reference of another khatal at Bhatia Basti is also there but the learned senior counsel appearing for the appellants, according to the learned A.P.P., has failed to appreciate the actual fact on the basis of the testimony of these witnesses that there were reference to two khatals one at Sonari and another at Bhatia Basti, nearby the place of occurrence from where these witnesses have seen the occurrence and basis upon such testimony, the learned trial court has considered the P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav to be eye witnesses who have supported the prosecution version and as per the prosecution story recorded in the fardbeyan and the F.I.R. and, therefore, the same cannot be said to suffer from an error.
Learned A.P.P. has further submitted that the submission which has been advanced that the ingredients of Section 302 is only attracted against appellants Dilip Yadav and Ram Naresh Yadav, who have been named in the F.I.R. but the learned senior counsel for the appellants has failed to Cr. Appeal (D.B.) No. 137 of 1994 (R) With
-9- Cr. Appeal (D.B.) No. 141 of 1994 (R) appreciate that the F.I.R. cannot be said to be an encyclopedia, rather, the F.I.R. construed to be narration of story of occurrence for the purpose of conducting investigation and the fact which is admitted herein is in course of investigation the culpability of all the appellants has been surfaced which has been corroborated from the testimony of the eye witnesses P.W.1 Kishori Yadav, P.W.-3 Romani Devi and P.W.4 Butan Yadav, and, therefore, it is incorrect to say that the ingredients of commission of offence under Sectin 302 of the Indian Penal Code against appellants Sohrai Yadav, Sheoji Yadav and Pradeep Yadav, save and except Dilip Yadav and Ram Naresh Yadav will not be applicable, cannot be said to be an acceptable argument in view of the facts of the given case.
Learned A.P.P. has further argued that it is also incorrect on the part of the appellants to agitate the ground that Section 34 of the Indian Penal Code will be applicable depending upon the nature of injury if opined by the Doctor as a cause of death, rather, the position of law is well settled that Section 34 speaks about the intention to commit a crime and herein it has come in the testimony of prosecution witnesses that all the appellants, with the common intention, have committed the crime of murder of the deceased and, therefore, the learned trial court has found ample evidence for commission of crime with the common intention by the appellants and, as Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 10 - Cr. Appeal (D.B.) No. 141 of 1994 (R) such, convicted them also under Section 34 of the Indian Penal Code along with Section 302 of the Indian Penal Code.
Learned A.P.P., on the basis of the aforesaid grounds, has submitted that the judgment impugned since is based upon the testimony of the eye witnesses who have corroborated the prosecution version, the same requires no interference.
7. We have heard the learned counsel for the parties, perused the documents available on record and the testimony of the prosecution witnesses and the exhibits including the postmortem report and the inquest report as available in the lower court records (L.C.R.).
8. This Court, in order to appreciate the argument advanced on behalf of the parties, as per the grounds referred hereinabove, deems it fit and proper that before appreciating the same in order to consider the legality and propriety of the impugned judgment, to consider the testimony of the prosecution witnesses.
P.W.1 Kishori Yadav - He claims to be an eye-witness of the occurrence. He has stated in his evidence that on 14.07.1992 at about 8:00 a.m. in the morning he was in his house. He heard the cries of his uncle Thegu Yadav for safety and he saw that accused Dilip Yadav, Sohrai Yadav, Pradeep Yadav, Ram Naresh Yadav and Sheoji Yadav armed with dagger had surrounded Thegu Yadav. He has stated that Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 11 - Cr. Appeal (D.B.) No. 141 of 1994 (R) accused Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav gave dagger blows on his uncle. When they ran towards them then the accused persons fled away towards north. He further deposed that his uncle, died after about five to seven minutes. He has deposed that Sub-Inspector of police reached there, prepared Inquest report of the dead body on which he put his thumb impression as a witness. The police further seized blood-stained earth from the place of occurrence and he is a witness on the seizure list also. In para 3 he stated that Mahendra Yadav, Kameshwar Yadav, Bachu Jaday and Ayodhya Yadav reached there after the occurrence. He has identified all the five accused in the dock. In para 4 he deposed that this murder has been committed for a Banyan tree. In the cross-examination at para 5 he stated that he has fifteen she-buffaloes and he runs a khatal in Sonari New Gwala Patti. He takes care of all the she-buffaloes and in the night also he stays in the khatal. The place of occurrence is at a distance of about fifty steps from his khatal. In pare 6 he has deposed that a proceeding under section 107 of the Criminal Procedure Code is going on against Sohrai Yadav for this incident. In that case he has appeared as a witness and gave his deposition on 21.08.1993. In para 7 and 8 he has stated that towards west of the place of occurrence there is a river. Sister of appellant Ram Naresh Yadav lives in Sonari and he visits his sister's place in Sonari and so he knows Ram Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 12 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Naresh Yadav since last about 5-7 years. In para 9 he has deposed that Ram Naresh Yadav had no concern with Thegu Yadav and there was no case between Ram Naresh Yadav and deceased Thegu Yadav. He has stated further that before the police also he stated that Ram Naresh Yadav assaulted Thegu Yadav by dagger. In the cross-examination he has fully supported the details of the occurrence. He denied that due to enmity he has deposed falsely against the accused persons.
P.W.2 Bachu Yadav and P.W.5 Ram Ayodhya Yadav - In the evidence both these witnesses have supported the fardbeyan version and they have stated that they went at the place of occurrence after coming to know the news of murder of Thegu Yadav. Both have stated that at that time they were in Bhatia Basti when they heard hulla of the murder and then went to the place of occurrence. Both have stated that when they reached at the place of occurrence they found Romani Devi, Kishori Yadav and Butan Yadav present there who all told that accused Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav have given dagger blows on Thegu Yadav and accused Sohrai Yadav and Sheoji Yadav had caught hold of the deceased Thegu Yadav at the time of assault. The motive of the occurrence was disclosed as land dispute. Both the witnesses have identified the accused persons in the dock.
P.W.-3 Romani Devi, the informant, has deposed that when she was in her house at about 8:00 a.m., Kishori Yadav Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 13 - Cr. Appeal (D.B.) No. 141 of 1994 (R) and Butan Yadav were also in that house. Her husband had gone to drop his son to the school and from there he was returning when he raised hulla for safety. On this hulla of safety of her husband, she along with Kishori Yadav and Butan Yadav, all the three came out of the house. She saw that Dilip Yadav, Sheoji Yadav, Pradeep Yadav, Sohrai Yadav and Ram Naresh Yadav, all five were assaulting her husband. Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav gave dagger blows on her husband on the left side abdomen. Sohrai Yadav and Sheoji Yedav had caught hold of her husband. They were also armed with daggers. When she and Kishori Yadav and Butan Yadav went there the accused persons fled away. She further deposed that her husband fell down due to the injuries. She raised hulla but no one reached there immediately. After sometime Mahendra Yadav, Bachu Yadav, Kameshwar Yadav and Ram Ayodhya Yadav reached there. She has stated that accused Ram Naresh Yadav resides in Sidgora 10 Number Basti and the rest four accused reside in Sonari. Her husband died after about five minutes. Police came after about an hour or two. She gave the details of the occurrence which the police recorded and read over to her and she put her L.T.I. after finding it correct. In para 4 the witness has stated that her husband had planted a Banyan tree in Sonari. Accused Dilip Yadav was claiming that Banyan tree as his own. There was quarrel between her husband and Dilip Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 14 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Yadav for that Banyan tree. She has stated that for that very motive her husband was killed by the five accused persons. She has identified the four accused persons present in dock on that date. In the cross-examination the witness has stated that Kishore Yadav is nephew by village relation of her husband and Butan Yadav is the elder brother of her husband. She has stated that she always lives in Bhatia Basti and Kishori and Butan since last six months are living in Sonari but at the time of occurrence they also used to live in Bhatia Basti. She stated that her khatal is not in Sonari rather it is in Bhatia Basti. She has got a thatched house in Bhatia Basti which consists of two rooms. In Sonari, her husband and Butan Yadav and Kishori Yadav have got house since long. She further stated that in the vicinity of her thatched house in Bhatia Basti about 25-30 hutments are there in which people live but she does not know the names of anyone of those hutments and she has no enmity with any neighbour. She stated clearly that she has no paper for her house in that Basti. She has stated that at the place of occurrence there are several huts and the road passes through but in those hutments there was nobody at the time of occurrence. In pare 9 she has stated that there was a case concerning the Banyan tree. That one was instituted by the accused. She has deposed that she has no enmity with accused Ram Naresh Yadav or Sohrai Yadav. The accused persons are her neighbours in Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 15 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Sonari and the disputed Banyan tree is on the boundary in between the two sides. In para 10 she has stated that police had reached there without any information lodged by them and immediately recorded her fardbeyan.
P.W.4 Butan Yadav - He also claims to be an eye witness. This witness has deposed in his evidence that deceased Thegu Yadav was his brother. He, Kishore Yadav and Thegu Yadav were living jointly. The occurrence took place on 14.07.1992 at about 8:00 a.m., in the morning. He was in the house and his brother Thegu Yadav had gone to drop his son in the school and from there Thegu Yadav was returning when in the way he raised cries for safety. He has stated that he, Kishori Yadav and Romani Devi came out of the house and saw that these accused persons had daggers in their hands and had caught hold of Thegu Yadav. They raised hulla. He further stated that accused Dilip Yadav gave a dagger blow on the left side abdomen, accused Pradeep Yadav also gave a dagger blow and accused Ram Naresh Yadev also gave a dagger blow and thereafter all the accused fled away. Thegu Yadav, as a result of injuries, fell down. After about an hour four persons came to whom he narrated the story. The Sub-Inspector of police also came who seized blood-stained earth from the place of occurrence and there was inquest on the dead body. This witness put his L.T. I. on both these papers as a witness. In Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 16 - Cr. Appeal (D.B.) No. 141 of 1994 (R) para 4 he has stated that one Banyan tree is the bone of contention and the murder has been committed for the same. He has identified four accused persons present in dock. In the cross-examination he has denied to have stated before the police that he always lives in Sonari and he and Kishori Yadav sometimes come to Bhatia Basti. The witness has stated that since last seven months he is residing in Sonari and the wife of Bharat Yadav is now residing in Bhatia Basti. He has denied the defence suggestion that he has no house in Bhatia Basti and he never lives in Bhatia Basti. He has stated that the dead body of Thegu Yadav was about 50 yards away from the house where the informant and the witness along with Kishori Yadav was present. The khatal of Sonari Road No. B/20 is three miles away from that place. The police station Kadma is about one mile away from the place of occurrence. In para 8 he stated that there are 10-15 hutments in between the place of occurrence and the house in which the witness was present. Those hutments are of labourers who work in brick-kiln and none of them was present at the time of occurrence because all had gone to work in the brick-kiln.
P.W.6 Dr. Yogendra Nath is the doctor who had conducted postmortem on the dead body of the deceased. He deposed that on 14.07.1992 at about 12:15 P.M. he conducted postmortem, examination on the dead body of Thegu Yadav.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
- 17 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
He found the following injuries on the person of the deceased :-
(A) (1) Stab wound no.1 - 6 cm x 3 cm x chest cavity over left chest in line with the left nipple and 8 cm downward from the nipple. The weapon cut the fifth rib entered into chest cavity through 4th intercoastal space then entered into the left lung, pericardium and terminated into the apex of heart cutting the heart.
(2) Stab wound no. 2 - Perforating type 3 cm x 1 cm over left upper arm lower lateral part. The weapon after cutting the skin and soft tissues passed towards right and slightly upward and made exit through the skin of left upper arm linear site making an exit wound of dimension 1 cm x 1 cm.
(3) Stab sound No.3 - 4 cm x 2 cm x chest cavity over left scapula. The weapon entered into the chest cavity through scapula bone (cutting the bone) terminated into left lung through posterior surface of the left lung.
(B) Incised wound - (1) 3 cm x 2.5 cm x soft tissue 6 cm lateral to left nipple. There was blood and blood clot in the chest cavity (C) Postmortem injury- abrasion over back of right hand, right elbow.
The Doctor has opined that the injuries except 'C' were ante-mortem caused by sharp-cutting-cum-pointed weapon. Death was due to shock and hemorrhage caused by the above noted ante-mortem injuries. Time since death within 3 to 12 hours. He has proved the postmortem report marked as Ext.1. He has agreed with the suggestion of the learned Additional Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 18 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Public Prosecutor that the injuries 'A' and 'B' may be caused by dagger.
P.W.7 Mukutdhari Mahato, is the investigating officer. He has stated that in 1992 he was officer-incharge of Kadma Police Station. On 14.07.1992 at 8:30 a.m. he got information that in Bhatia Basti someone has been killed by dagger. He entered this information in Station Diary and proceeded for verifying the news. At 9.30 A.M. he reached Bipul Bhatta near Bhatia Basti. There he found dead body of a person lying on kacha road and the dead body was in the pool of blood and there were few persons. The witness has stated that he recorded the fardbeyan of Romani Devi, read over to her and she put her L.T.I., finding it to be correct. Two witnesses Kishori Yadav end Butan Yadav were present there who also put their L.T.I, as witness on the fardbeyan. Thereafter, he took up investigation. He prepared inquest report of the dead body on which Butan Yadav and Kishori Yadav put their L.T.I., as witnesses. He seized blood stained earth from the place of occurrence and prepared seizure list on which also Butan Yadav and Kishori Yadav put their L.T.I., as witnesses. He sent the dead body to hospital for postmortem. He inspected the place of occurrence. He has stated that the place of occurrence is the southern portion of a kacha road in Bipul Mukherjee Bhatta within Bhatia Basti where the dead body of Thegu Yadav was found in a pool of blood. He found one cycle lying Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 19 - Cr. Appeal (D.B.) No. 141 of 1994 (R) at a distance of about fifty feet from the dead body towards east. He further stated that the house of the deceased was at a distance of about 70 yards towards west from the place of occurrence. He has stated that there are several hutments in the same line east west. Towards east at a distance of about 300 yards there are E.C.C. flats. Towards west there is road and open land. In para 4 he has stated that he took statements of witnesses and returned to Police Station at 1:15 p.m., and drew formal F.I.R. on the basis of the fardbeyan. On 15.07.1992 he received postmortem report. He searched for the accused persons but they were absconding. After completing investigation he submitted charge-sheet. In cross- examination he has stated that the Police Station is about three kilometers away from the place of occurrence. He deposed that he got the news of murder through rumour. He proceeded for verification of this rumour on his motor cycle along with another police officer on the same motorcycle accompanying this witness. From the Police Station he started at 8:30 a.m. and he recorded the fardbeyan at 9.30 a.m. In para 9 he stated that the kacha road at the place of occurrence is lonely place. In the hutments which located near the place of occurrence nobody was residing. In para 10 he has stated that he had not gone in the house of the victim Thegu Yadav so he cannot say if cattles were there or not and if khatal is being run there or not. He deposed that when he Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 20 - Cr. Appeal (D.B.) No. 141 of 1994 (R) reached at the place of occurrence he found informant Romani Devi besides two witnesses Kishori Yadav and Butan Yadav and besides them also there were four persons, namely, Kameshwar Yadav, Bachu Yadav, Ram Ayodhya Yadav and Mahendra Yadav and others. These all people are relations of the deceased or not he does not know. He has deposed that Sonari Gowala Patti is four kilometers away from the place of occurrence. Near the place of occurrence nobody resides. He stated that Bhatia Basti has about ten thousand population. In para 13 he has stated that he had not seized the cycle lying on the place of occurrence at a distance of about fifty feet and he did not enquire about the school where the deceased was said to have gone for dropping his son. He has denied the suggestion that he did not investigate the case properly and impartially.
9. This Court, before appreciating the argument, deems it fit and proper to refer the judicial pronouncement regarding admissibility of the evidence of interested witnesses. The Hon'ble Apex Court in the case of Mallanna and Others v. State of Karnataka reported in (2007) 8 SCC 523 has been pleased to hold that the evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility then the Court can disbelieve the same.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
- 21 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
In Kulesh Mondal v. State of West Bengal reported in (2007) 8 SCC 578, the Hon'ble Apex Court has held at paragrqaph 10 which read hereunder as :-
11. ―10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab [AIR 1953 SC 364] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) ‗25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan [1951 SCC 1213]. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.'
11. Again in Masalti v. State of U.P. [AIR 1965 SC 202] this Court observed :
‗14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
- 22 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.'
12. To the same effect is the decision in State of Punjab v. Jagir Singh [(1974) 3 SCC 277], Lehna v. State of Haryana [(2002) 3 SCC 76] .... As observed by this Court in State of Rajasthan v. Kalki [(1981) 2 SCC 752] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar [(2002) 6 SCC 81] .‖ [Bhargavan v. State of Kerala, (2004) 12 SCC 414].‖ In Masalti & Others v. State of Uttar Pradesh reported in AIR 1965 SC 202, the Hon'ble Apex Court has held as under paragraph 14 which reads hereunder as:-
"14. Mr Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prove to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 23 - Cr. Appeal (D.B.) No. 141 of 1994 (R) strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.‖ The Hon'ble Apex Court in the case of Dalip Singh & Others v. State of Punjab reported in AIR 1953 SC 364 has held at paragraph 26 which reads hereunder as :-
―26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 24 - Cr. Appeal (D.B.) No. 141 of 1994 (R) us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.‖ In Guli Chand and Others v. State of Rajasthan reported in (1974) 3 SCC 698 wherein Vadivelu Thevar v.
State of Madras reported in 1957 SCR 98 has also been relied upon wherein it has been held that mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. For ready reference, paragraph 11 of the aforesaid judgment is quoted hereunder as:-
―11. The High Court had certainly given sufficiently good reasons for distrusting the evidence of witnesses who did not belong to village Timava although, even out of these, Shri Das, PW 1, and Basantilal, PW 2, are mentioned in the FIR, Courts have held that the testimony of a chance witness, although not necessarily fake, is proverbially unsafe. In the case before us, however, there is the evidence of Banwarilal, PW 7, son of the deceased, and of Lohde PW 6, who seems to belong to the party of Brijmohan, as well as of Champoli, PW 5, who are residents of village Timava. It has been held by this Court that the mere fact that a witness is a relation or a victim is not sufficient to discard his testimony. In Dalip Singh v. State of Punjab, [AIR 1953 SC 364] this Court said:
―A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 25 - Cr. Appeal (D.B.) No. 141 of 1994 (R) high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.‖ This is not to say that in a given case, a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.‖ It is, thus, evident that mechanical rejection of testimony of witnesses who are related to deceased is not permissible.
However, the evidence of such witnesses should be examined minutely and this Court is now proceeding to examine the testimony of P.W.1, P.W. 3 and P.W.4 as to whether they are highly interested witnesses by taking into consideration the testimony of these witnesses.
10. It is evident that the P.W.1 Kishori Yadav has fully supported the prosecution version by stating that while he was in his house, he heard the cries of his uncle Thegu Yadav for Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 26 - Cr. Appeal (D.B.) No. 141 of 1994 (R) safety and he saw that accused Dilip Yadav, Sohrai Yadav, Pradeep Yadav, Ram Naresh Yadav and Sheoji Yadav had surrounded Thegu Yadav with dagger. He has also deposed that accused Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav gave dagger blows on his uncle and then the accused persons fled away towards north. He further deposed that his uncle, died after about five to seven minutes. He has identified all the five accused in the dock. He deposed that this murder has been committed for a Banyan tree. In the cross- examination he stated that a proceeding under section 107 of the Criminal Procedure Code is going on against appellant Sohrai Yadav for this incident of murder and in that case he has appeared as a witness and gave his deposition on 21.08.1993. He has also deposed that Ram Naresh Yadav had no concern with Thegu Yadav and there was no case between Ram Naresh Yadav and deceased Thegu Yadav. He has stated that before the police also he stated that Ram Naresh Yadav assaulted Thegu Yadav by dagger.
It is evident that P.W.2 Bachu Yadav and P.W.5 Ram Ayodhya Yadav have also supported the prosecution version. In the evidence both these witnesses have supported the fardbeyan version and they have stated that they went at the place of occurrence after coming to know the news of murder of Thegu Yadav. Both have stated that when they reached at the place of occurrence they found Remni Devi, Kishori Yadav Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 27 - Cr. Appeal (D.B.) No. 141 of 1994 (R) and Butan Yadav present there who all told that accused Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav had given dagger blows on Thegu Yadav and accused Sohrai Yadav and Sheoji Yadav had caught hold of the deceased Thegu Yadav at the time of assault. The motive of the occurrence was disclosed as land dispute.
P.W.-3 Romani Devi, the informant, who happens to be the wife of the deceased, has also fully supported the prosecution version by deposing that when she was in her house at about 8:00 a.m., Kishori Yadav and Butan Yadav were also in that house. Her husband had gone to drop his son to the school and from there he was returning when he raised hulla for safety. On this hulla of safety of her husband, she along with Kishori Yadav and Butan Yadav, all the three came out of the house. She saw that Dilip Yadav, Sheoji Yadav, Pradeep Yadav, Sohrai Yadav and Ram Naresh Yadav, all five were assaulting her husband. Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav gave dagger blows on her husband on the left side of abdomen. Sohrai Yadav and Sheoji Yedav had caught hold of her husband. They were also armed with daggers. When she, Kishori Yadav and Butan Yadav went there the accused persons fled away. Her husband fell down due to the injuries. She raised hulla and after sometime Mahendra Yadav, Bachu Yadav, Kameshwar Yadav and Ram Ayodhya Yadav reached there. Her husband died after about Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 28 - Cr. Appeal (D.B.) No. 141 of 1994 (R) five minutes. Police came after about an hour or two. She gave the details of the occurrence which the police recorded and read over to her and she put her L.T.I. after finding it correct. She has stated that her husband had planted a Banyan tree in Sonari and appellant Dilip Yadav was claiming that Banyan tree as his own. There was quarrel between her husband and Dilip Yadav for that Banyan tree. She has stated that for that very motive her husband was killed by the five accused persons. She has stated that her khatal is not in Sonari rather it is in Bhatia Basti. She has deposed that she has no enmity with accused Ram Naresh Yadav or Sohrai Yadav. She has stated that police had reached without any information lodged by them and immediately recorded her fardbeyan.
P.W.4 Butan Yadav has been considered to be an eye witness and as per his testimony, it is evident that he had also seen the occurrence since he was along with the informant at Bhatia Basti. This witness has deposed in his evidence that the occurrence took place on 14.07.1992 at about 8:00 a.m., in the morning. He was in the house and his brother Thegu Yadav had gone to drop his son in the school and from there Thegu Yadav was returning when in the way he raised cries for safety. He has stated that he, Kishori Yadav and Romani Devi came out of the house and saw that these accused persons had daggers in their hands and had caught hold of Thegu Yadav. He has further stated that accused Dilip Yadav gave a Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 29 - Cr. Appeal (D.B.) No. 141 of 1994 (R) dagger blow on the left side of the abdomen of the deceased, accused Pradeep Yadav and accused Ram Naresh Yadev also gave a dagger blow and thereafter all the accused fled away. The Sub-Inspector of police came there who seized blood- stained earth from the place of occurrence and there was inquest on the dead body. This witness put his L.T. I. on both these papers as a witness. This witness has stated that one Banyan tree is the bone of contention and the murder has been committed for the same. He also has identified four accused persons present in dock. He has stated that the dead body of Thegu Yadav was about 50 yards away from the house where the informant and the witness along with Kishori Yadav were present. The police station Kadma is about one mile away from the place of occurrence.
11. The prosecution has considered P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav to be the eye witnesses basis upon which the impugned judgment has been passed.
12. This Court, on the basis of consideration of testimonies of P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav, has found that these three witnesses have supported the prosecution version since they, in specific term, have stated that the deceased Thegu Yadav when cried, then they came out from their house and saw that Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav, having knife in their hands, Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 30 - Cr. Appeal (D.B.) No. 141 of 1994 (R) had surrounded the deceased. It also transpires from their testimony that Dilip Yadav, Pradeep Yadav and Ram Naresh Yadav had assaulted the deceased with knife.
It has also come that when the P.W.1 Kishori Yadav had rushed to the place of occurrence, all the accused persons fled away and immediately five minutes thereafter, his uncle had died. He has also corroborated the preparation of the inquest report.
13. This Court, in order to reach to the conclusion as to whether these witnesses are eye witnesses or not is now proceeding to examine the ground as has been agitated on behalf of the appellants basis upon which these witnesses cannot be construed to be eye witnesses.
14. Learned senior counsel appearing for the appellants has tried to impress upon the Curt that these witnesses cannot be considered to be eye witnesses since the reference of the house as has been given by these witnesses is not the same as has been described in the F.I.R. According to the learned senior counsel, the reference of the house in the F.I.R. is one khatal situated at Bhatia Basti but it has come in the testimony that the aforesaid khatal is at Sonari area which is at the distance of about 4 k.m. from the place of occurrence.
15. This Court, in order to appreciate the aforesaid argument, has again scrutinized the testimony of P.W.1 Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 31 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav as also the testimony of P.W.7 the Investigating Officer.
It appears from the testimony of P.W.1 Kishori Yadav, who happens to be nephew of the deceased, has stated that he was sitting in the house in Bhatia Basti near Bipul Mukherjee Bhatta. It appears from his testimony at paragraph 5 that he is also having one another khatal at Sonari New Khatal Patti. He has stated that he used to feed the cattle. He has stated that the place of occurrence is at the distance of 50 feet from his khatal.
It further appears from the testimony of P.W.3 Romani Devi that the reference of two khatals have been made therein. It has been stated in specific term that for last six months Kiushori and Butan are residing in Sonari but on the date of occurrence, they were in the Bhatia Basti, for ready reference, the aforesaid testimony is being referred hereunder as :-
5- fd"kksjh esjs ifr dk xk¡o ds ukrs Hkrhtk gSA cqVu esjs HkSalqj gSaA eSa lksukjh esa dHkh ugha jghA eSa HkfV;k cLrh esa jgrh gw¡A fd"kksjh rFkk cqVu xr Ng eghus ls lksukjh esa jgrk gSA ?kVuk ds le; os nksuks Hkh HkfV;k cLrh esa jgrs FksA esjk [kVky lksukjh esa ugha gSA cfYd HkfV;k cLrh esa gSA eq>s nks cPps gSaA fd"kksjh rFkk cqVu Hkh ?kVuk ds le; esjs lkFk jgrs Fks rFkk mudk [kVky Hkh HkfV;k cLrh esa FkkA cqVu dk ifjokj ugha FkkA fd"kksjh Hkh vdsyk gh jgrk gSA She has further stated at paragraph 6 that she has a khaprapos (thatched) house in the Bhatia Basti having two rooms therein. She has further stated that her husband, Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 32 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Butan and Kishori were having house in Sonari also. For ready reference, the testimony made at paragraph 6 is being referred hereunder as :-
6- HkfV;k cLrh esa eq>s [kiM+k iks"k edku gSA mlesa nks dksBjh gSA lksukjh esa essjs ifr cqVu rFkk fd"kksjh dk edku igys ls cuk gqvk gSA esjs [kiMk&iks"k edku ds vklikl iphl&rhl vkneh >ksiM+h cukdj jgrs FksA eSa ugha dg ldrh fd os iphl&rhl yksx vHkh Hkh ogk¡ jgrs gSa ;k ughaA eq>s muesa ls fdlh dk uke ekywe ugha gSA eSa ogk¡ Ng&lkr lky ls jg jgh gw¡A eq>s HkfV;k cLrh ds vM+ksl&iM+ksl okyksa ls dksbZ >xM+k&nq"keuh ugha gSA It has been stated by her in her cross-examination at paragraph 13 that one year after solemnization of marriage, she along with her husband had shifted to Bhatia Basti and started living therein.
She has further stated that her husband, deceased, has given the khatal situated in Sonari Basti to one Bharat Yadav, the younger brother of the deceased.
It has also been stated that Butan Yadav and Kishori Yadav, P.W.4 and P.W.1 respectively, used to live along with her. For ready reference, the aforesaid testimony is being referred hereunder as:-
13- eSa vius llqj dk uke ugha tkurhA Lor% esjh "kknh muds ejus ds ckn gqbZA esjs ifr ds xkao dk uke dY;k.kiqj gSA esjh "kknh X;kjg o'kZ iwoZ gqbZA ml le; esjs ifr lksukjh XokykiÍh esa jgrs FksA es js ifr HkSal dk [kVky j[ks gq, FksA ejus ds fnu rd os ogh dkjckj djrs FksA "kknh ds lky Hkj ckn esjs ifr HkfV;k cLrh pys x, vkSj ogha [kVky pykrs FksA os rc ls cjkcj HkfV;k cLrh esa jgrs FksA esjs Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 33 - Cr. Appeal (D.B.) No. 141 of 1994 (R) ifr us lksukjh okyk [kVky vius vkneh esjs nsoj Hkjr ;kno dks ns fn;kA mlesa HkSalqj dk yM+dk rFkk esjk nsoj jgus yxkA cqVu ;kno rFkk fd"kksjh ;kno HkfV;k cLrh esa gh jgrk gSA mudk [kVky Hkh ogha Fkk ij vHkhxr Ng&lkr eghus ls os lksukjh pys x, gSaA ?kVuk ds le; mudk [kVky esjs [kVky ls nks ch?kk nl xt ij FkkA lHkh dkjksckj vyx&vyx djrs FksA rhuks dk [kVky lM+d ls dqN nwj ?kj ds ckn FkkA It further appears from the testimony of P.W.4, namely, Butan Yadav, wherein he has stated about a house in the Bhatia Basti situated nearby the place of occurrence. For ready reference, the same is being quoted hereunder as :-
6- cjxkaN dk >xM+k esa jkeujs"k ;kno lfEefyr ugha gSA jkeujs"k ;kno 10 ua0 cLrh flnxksM+k esa jgrs gSaA vU; vfHk;qäx.k lksukjh jksM ua0 B@20 esa jgrs gSaA eSa Hkh ogha jgrk gw¡A jksM+ ua0 B@20 esa esjk iDdk edku gSA fd"kksjh ;kno rFkk Qsdw ;kno dk Hkh jksM ua0 B@20 esa iDdk edku gSA geyksxksa dk ogha [kVky Hkh gSA ge yksx HkSal ikyrs gSa rFkk [kVky dk dkjksckj djrs gSaA eq>s 10&12 HkSals gSa] fd"kksjh dks 5&6 HkSals gSa rFkk Bsxw dks 6 HkSals gSaA B@20 jksM esa geyksxksa us edku cuk;k gS og geyksxksa dk tehu ugha gS] fVLdks dh tehu gS ij geyksxksa dk djhc 20 o'kZ ls dCtk gSA ¼Lor%½ esjk edku HkfV;k cLrh esa Hkh gSA jksM ua0 B@20 okyk esjk edku gh iqjkuk gS] HkfV;k cLrh okyk edku u;k gSA HkfV;k cLrh okyk gekjk edku 6 o'kZ ls gS & mles 2 dksBjh gS & ,d esjk nwljk Bsxw dk HkfV;k cLrh esa tks gekjk edku gS ogk¡ Hkh HkSals gSa tks vk¡xu esa ck¡/kh tkrh gS] [kVky ugha gSA lksukjh jksM ua0 B@20 esa esjk edku esa xr N% o'kZ ls esjk HkkbZ Hkjr jgrk gS] eSa HkfBgk cLrh esa jgrk gw¡A eSaus iqfyl esa ,slk ugha dgk Fkk fd eSa cjkcj lksukjh esa jgrk gw¡ rFkk fd"kksjh ;kno rFkk eSa ;nk&dnk HkfBgk cLrh esa Bgjrs gSaA ¼iqu%½ b/kj 9 eghuk ls eSa lksukjh esa jgrk gw¡ vkSj Hkjr dh L=h HkfBgk okyk edku esa jg jgh gSA ;g lR; ugha gS fd eSa xyr dj Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 34 - Cr. Appeal (D.B.) No. 141 of 1994 (R) jgk gw¡ fd HkfBgk cLrh esa edku cuk;k gw¡ rFkk jgrk gw¡A 7- Bsxw ;kno dh yk"k gekjs HkfBgk okyk ?kj ls 50 xt nwjh ij FkkA ogka ls jksM+ ua0 B@20 lksukjh okyk ?kj 3 ehy nwj iM+sxkA ;g ?kVuk 8 cts lqcg dh gSA gekjs ?kj ls dnek Fkkuk 1 ehy nwj gSA gYyk tc gqvk rks eSa ?kj esa FkkA fd"kksjh ;kno Hkh esjs lkFk ?kj esa FkkA ?kj ls fudyk rks ns[kk fd lksgjkbZ] jkeujs"k oxSjg lHkh ik¡pksa vfHk;qDr Nwjk ls yS"k Qsadw dks ?ksjs gSaA ge nksuksa gYyk djrs nkSM+ dj x,A ik¡pksa eqnky; pkjksa vksj ls Qsadw dks ?ksjs FksA f"koth mÙkj eqag Fkk] lksgjkbZ if"pe eqag FkkA Bsxw ;kno if"pe esa FkkA Qsadw dks fnyhi] jkeujs"k rFkk iznhi nf{k.k eqag ?ksjs FksA Bsxw ;kno ds fdl Hkkx dkSu eqnkyg Fkk ;g [;ky ugha fd;k fdUrq ;g [;ky gS fd eqnkyg fd eqag [kM+s FksA ge yksx Mjs ugha FksA eSaus iqfyl esa ,slk ugha dgk Fkk fd ge yksx Mj ls ml le; ogk¡ ugha x,A ;g Hkh ugha dgk Fkk fd eqnkyg ds Hkkxus ds ckn geyksx ogk¡ x,A P.W.7, the Investigating Officer, has prepared the map of the place of occurrence and has also corroborated the aforesaid fact about the house in the Bhatia Basti where the dead body was found, as would appear from the testimony made at paragraphs 3 and 8 which are being referred hereunder as :-
3- ?kVukLFky dk fujh{k.k fd;kA ?kVukLFky dnek FkkukUrxZr HkfV;k cLrh esa vofLFkr foiqy eq[kthZ HkÎk okyh dPph lM+d dk nf{k.kh Hkkx gS tgk¡ e`rd Bsxq ;kno dk "ko ik;k x;kA "ko ds ikl djhc 2 QhV oxkZdkj tehu ij [kwu fxjk ik;kA ;gka lM+d iwjc HkfV;k cLrh dh vksj ls if"pe foiqy eq[kthZ dk HkÎk dh vksj pyh xbZ gSA "ko ds djhc 50 QhV iwjc lM+d ij ,d lkbfdy fxjh gqbZ ikbZ xbZA "ko ls e`rd dk ?kj djhc 30 xt if"pe esa gSA ?kVukLFky ls mÙkj [kkyh LFkku rFkk djhc 400 xt nwjh ij xaxks=h ¶ySV gSa ;gka ls cxy esa bZV ls tksM+kbZ fd;k gqvk Qwluwek >ksiM+h nf{k.k rjQ gSA blh ykbu esa iwjc ls if"pe vusd >ksifM;ka blh rjg dh gSaA iwjc Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 35 - Cr. Appeal (D.B.) No. 141 of 1994 (R) djhc 300 xt dh nwjh ij bZ0lh0lh0 ¶ySV gSA ;gka ls if"pe lM+d ,oa [kqyk LFkku gSA 8- jkeujs"k ;kno dh vksj ls ?kVukLFky ls Fkkuk dk nwjh djhc 3 fdyksehVj eSa vuqeku ls nwjh crk jgk gw¡A vkSipkfjd izkFkfedh esa eSaus nwjh 2 fd0eh0 vafdr dh gS ij Lej.k esa Hkwy gSA ?kVuk ds fo'k; esa vQokg lwpuk feyhA dkSu [kkl vkneh lwpuk fn;k ;g ugha ekywe gS] vQokg lquk FkkA eSaus lugk rS;kj fd;k FkkA lugk dks iqu% nqckjs ugha ns[kkA lk{kj vkj{kh us lugk ntZ fd;k esjs crkus ij eSa eksVj lkbfdy ij x;k] geyksx nks inkf/kdkjh ,d gh eksVjlkbfdy ls x, FksA Fkkuk ls izLFkku 8-30 cts fd;kA yk"k ds ikl igqapus dk lgh le; ugha vafdr fd;k gw¡A ¼Lor%½ QnZ c;ku 9-30 cts vafdr fd;kA nks fd0eh0 eksVjlkbfdy ls tkus esa 5&6 feuV yxsxkA ¼Lor%½ pqafd vQokg lwpuk Fkh vksj txg fu"fpr ugha Fkh vr% igq¡pus esa ,d ?k.Vk le; yxkA HkfV;k cLrh cgqr cM+h cLrh gSA foiqy HkÎk Hkh cgqr cM+k {ks= esa gSA eq>s ?kVukLFky ij igqapus esa cgqr le; yxkA tgk¡ ls iwNrkN dj ?kVukLFky ij igq¡pus dk iz;kl fd;k ogk¡ ls ?kVukLFky 1&1@2 fd0 eh0 gSA eSusa Mk;jh esa ugha fy[kk gS fd iwNrs&iwNrs ?kVukLFky cgqr nsj esa igqapkA ,slk dksbZ O;fDr jkLrk esa ugha feyk tks ?kVuk ns[kus dk ;k ?kVukLFky ns[kus dk nkok djsA ;g lR; ugha gS fd eSa xyr dg jgk gw¡ fd iwNrs&iwNrs cgqr nsj esa igqapkA
16. The reason for giving the reference of the deposition made by the witnesses P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav along with P.W.7, the Investigating Officer, as quoted hereinabove, is to scrutinize the argument advanced on behalf of learned senior counsel who has argued vehemently that P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav cannot be construed to be the eye witnesses since they live in Sonari which is at a Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 36 - Cr. Appeal (D.B.) No. 141 of 1994 (R) distance of 4 km from the place of occurrence but the aforesaid ground of living place of the P.W.1 and P.W.4 along with P.W.3 the informant/wife of the deceased at Sonari cannot be said to be corroborated from their testimony in order to establish that the deceased along with his wife and P.W.1 and P.W.4 were living in Sonari, rather, it would be evident from perusal of the testimony of P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav coupled with the testimony of Investigating Officer, P.W.7, that the deceased was having one khatal at Sonari where he used to live prior to his marriage and after marriage with P.W.3 Romani Devi, he had shifted to Bhatia Basti khatal and started living there. The aforesaid testimony is being corroborated from the testimony of P.W.1 and P.W.4 as also the Investigating Officer.
17. This Court, therefore, is of the view that the argument which has been advanced on behalf of the appellants that P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav were living in Sonari is not being supported from the testimony of P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav coupled with the testimony of the Investigating Officer P.W.7. Therefore, the ground which has been raised that P.W.1 Kishori Yadav, P.W.3 Romani Devi and P.W.4 Butan Yadav cannot be construed to be eye witnesses, according to our considered view is having no substance and accordingly the same is hereby rejected.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
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18. Another argument is that no independent witness has been examined by the prosecution. It has been contended that Mahendra Yadav, Kameshwar Yadav, Bachu Yaday and Ayodhya Yadav had come to the place of occurrence but reason best known to the Investigating Officer, they have not been examined in order to take corroboration of the occurrence.
The position of law is well settled as has been held by Hon'ble Apex Court in Sarwan Singh and Others v. State of Punjab reported in (1976) 4 SCC 369 wherein it has been laid down that non-examination of independent witness when said to be fatal and what is necessary for proving the prosecution case is not quantity but quality of evidence. For ready reference paragraph 13 of the said judgment is quoted hereunder as:-
"13. Another circumstance which appears to have weighed heavily with the Additional Sessions Judge was that no independent witness of Salabatpura had been examined by the prosecution to prove the prosecution case of assault on the deceased, although the evidence shows that there were some persons living in that locality like the ―pakodewalla‖, hotelwalla, shopkeeper and some of the passengers who had alighted at Salabatpura with the deceased. The Additional Sessions Judge has drawn an adverse inference against the prosecution for its failure to examine any of those witnesses. Mr Hardy has adopted this argument. In our opinion the comments of the Additional Sessions Judge are based on serious misconception Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 38 - Cr. Appeal (D.B.) No. 141 of 1994 (R) of the correct legal position. The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witnesses if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well-settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point; it is the quality rather than the quantity of the evidence that matters. In the instant case, the evidence of the eyewitnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 39 - Cr. Appeal (D.B.) No. 141 of 1994 (R) searching cross-examination which they have to face before the courts. Therefore nobody wants to be a witness in a murder or in any serious offence if he can avoid it. Although the evidence does show that four or five persons had alighted from the bus at the time when the deceased and his companions got down from the bus, yet there is no suggestion that any of those persons stayed on to witness the occurrence. They may have proceeded to their village homes. So far as ―pakodewalla‖ and hotelwalla etc. are concerned there is positive evidence to show that they were interrogated by the police but they expressed ignorance about the occurrence. In this connection the evidence of PW 5 Harnek Singh clearly shows that the Investigating Officer interrogated the hotelwalla and the ―pakodewalla‖ but they stated before him that they had not witnessed the occurrence. In these circumstances, therefore, there was no obligation on the prosecution to examine such witnesses who were not at all material. It is not a case where some persons were cited as eyewitnesses by the prosecution on material points and were deliberately withheld from the court. For these reasons, therefore, the learned Additional Sessions Judge was not at all justified in raising an adverse inference against the prosecution case from this fact and the High Court was right in rejecting this part of the reasoning adopted by the learned Additional Sessions Judge.‖ The Hon'ble Apex Court has been pleased to observe therein that due to non-examination of independent witness, the prosecution case will not be vitiated if the other testimonies are there in corroboration to the prosecution story with no inconsistency and nothing has been pointed out to Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 40 - Cr. Appeal (D.B.) No. 141 of 1994 (R) discredit their testimonies.
Here, in the facts of the given case, it is evident from the testimonies of P.W.1, P.W.3 and P.W.4 taken together with the testimonies of P.W.6 (Doctor) and P.W.7 Investigating officer, that the prosecution version has been corroborated and, as such, even though the independent witnesses have not been examined, the testimonies of P.W.1, P.W.3 and P.W.4 corroborated by the Investigating Officer, P.W.7, cannot be discarded.
19. Therefore, the ground as has been agitated that due to non-examination of independent witnesses the prosecution has failed to prove the prosecution story, according to our considered view, is having no substance and the same is accordingly rejected.
20. Learned senior counsel for the appellants have raised the issue that due to grudge, P.W.1, P.W.3 and P.W.4 have implicated the appellants falsely in the instant case.
The Hon'ble Apex Court in the case of Matibar Singh v. State of Uttar Pradesh reported in (2015) 16 SCC 168 has held as under paragraph 14 which reads hereunder as :-
14. That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment [State of U.P. v. Indrasen, Criminal Appeal No. 902 of 1979, decided on 26-9-2001 (All)]. We must, at the outset, say that the High Court's judgment, which Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 41 - Cr. Appeal (D.B.) No. 141 of 1994 (R) has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court.
The fact that there was previous enmity between the complainant's party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution. Enmity is a double- edged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons.
21. This Court is now proceeding to examine the ground which has been agitated on behalf of the appellants that due to enmity the appellants have been falsely implicated in the instant case. Such ground has been taken on the basis of the deposition of P.W.1, P.W.2, P.W.3 and P.W.4.
P.W.1 has deposed in his statement as would appear from paragraph 4 thereof that it is due to the issue of Banyan tree the murder has been committed.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
With
- 42 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
It has been deposed by P.W.2, as would appear from paragraph 5 of his deposition that prior to the occurrence one Moti Yadav, father of the appellant Nos. 1, 2 and 3 in Cr. Appeal No.141 of 1994, had instituted a case of assault in which Sohrai Yadav had given evidence against him.
It would also be evident from the testimony of P.W.3 who has stated at paragraph 17 that there was land dispute in between her husband and the appellant Dilip Yadav.
Learned senior counsel, on the aforesaid pretext, has submitted that since these witnesses themselves have admitted that the dispute was there in between both the parties and, as such, there is false implication.
The Hon'ble Apex Court in the case of Sushil and Others v. State of U.P. reported in 1995 Supp (1) SCC 363 has held that enmity is a double-edged weapon which cuts both ways. It may constitute a motive for the commission of the crime and at the same time it may also provide a motive for false implication. The reliability of the witnesses is to be seen on the basis of the fact as to whether there is inconsistency in the testimony or not. If it would transpire by taking the testimony together that the testimonies are inconsistent to each other than certainly the reliability of the witnesses has to be discarded by the court otherwise not.
22. This Court is now proceeding to scrutinize as to whether there is any inconsistency in the testimony of P.W.1, P.W.3 Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 43 - Cr. Appeal (D.B.) No. 141 of 1994 (R) and P.W.4.
As has been referred hereinabove, P.W.1, P.W.3 and P.W.4 in specific term have supported the prosecution version about commission of murder having been seen by them, as would appear from their testimonies, as quoted and referred hereinabove.
Further, the testimonies have been corroborated by the Investigating Officer including the certification of the place of occurrence. Even the Doctor, P.W.6, has found anti-mortem injury which is the cause of death of the deceased. The time shown of causing injury as per the postmortem report is in between 3 to 12 hours is also being corroborated from the prosecution version. Therefore, it is evident that the testimony of P.W.1, P.W.3 and P.W.4 being consistent as also being corroborated by the Investigating Officer and the Doctor, as such, the testimonies of P.W.1, P.W.3 and P.W.4 cannot be discarded merely because some inimical relationship has been pointed out by these witnesses.
23. This Court, therefore, is of the view that the argument which has been advanced for discarding the testimony of P.W.1, P.W.3 and P.W.4 for false implication of the appellants on the ground of grudge is having no substance and, as such, the same is hereby rejected.
The reference in the context that it is the onus upon the prosecution to prove the charge beyond all reasonable doubt.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
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- 44 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
The reasonable doubt means that the prosecution story as per the informant's version if corroborated by the ocular evidence in course of trial having been corroborated by the Investigating Officer and the Doctor who has conducted the postmortem.
Herein, P.W.1, P.W.3 and P.W.4, as has been held by this Court as above to be eye witnesses who have seen the occurrence and even the Investigating Officer has corroborated the same having also been corroborated by the Doctor so far as the reason of death and the nature of injury having been found while conducting the autopsy.
The learned trial court, therefore, has convicted the appellants for commission of offence under Section 302 read with Section 34 of the Indian Penal Code.
24. This Court, having discussed the legal and factual issue as above, is now proceeding to appreciate the alternative argument as has been advanced on behalf of the appellants.
The submission has been made that even accepting the allegation as per the prosecution story to be correct then specific allegation is against Dilip Yadav and Ram Naresh Yadav who were having knife in their hands and had assaulted the deceased due to which he succumbed to injury and therefore, the ingredients of Section 302 of the Indian Penal Code is only attracted against Dilip Yadav and Ram Naresh Yadav but the learned trial court has convicted the appellants Pradeep Yadav, Sohrai Yadav and Sheoji Yadav also for Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 45 - Cr. Appeal (D.B.) No. 141 of 1994 (R) commission of offence under Section 302 of the Indian Penal Code by applying the ingredients of Section 34 of the Indian Penal Code.
Learned senior counsel has submitted that to invoke Section 34 of the Indian Penal Code it must be established that a criminal act was done by more than one person in furtherance of the common intention of all. In order to strengthen his argument, he has relied upon the judgments rendered by Hon'ble Apex Court in the case of Balu alias Bala Subramaniam and Another v. State (UT of Pondicherry) reported in (2016) 15 SCC 471, Virender v. State of Haryana reported in (2020) 2 SCC 700 and Shishpal alias Shishu v. State (NCT of Delhi) reported in (2022) 9 SCC 782.
This Court, before proceeding to examine the issue of vicarious liability so far making Section 34 of the Indian Penal Code applicable, deems it fit and proper to refer certain authority of the Hon'ble Apex Court on applicability of the ingredients of Section 34 of the Indian Penal Code. The Hon'ble Apex Court in the case of Virender v. State of Haryana (Supra) has been pleased to hold that to attract Section 34 of the Indian Penal Code it has to be established that there was plan or meeting of mind of all the accused persons to commit the offence.
In Maqsoodan and Others v. State of Uttar Pradesh Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 46 - Cr. Appeal (D.B.) No. 141 of 1994 (R) reported in (1983) 1 SCC 218, it has been held that the proof of common intention is a question of fact which is subjective. It can also be inferred from the facts and circumstances of the case which includes the conduct of the accused persons acting in concert to commit the offence.
In the case of Kirpal and Bhopal v. State of Uttar Pradesh reported in AIR 1954 SC 706, it has been held that the common intention to bring about a particular result may well develop on the spot itself and, as such, the ingredients of Section 34 of the Indian Penal Code will be applicable. The relevant paragraph of the aforesaid judgment is referred and quoted hereunder as :-
"6. The question, however, remains as to which of these three appellants are guilty and what offence has been committed by each. The learned Sessions Judge while holding all the three appellants responsible for causing the death of Jiraj was of the opinion that they could be guilty only under Section 304 IPC taken with Section 34 IPC on the ground that there is no evidence of any preconcerted or predetermined plan to kill the deceased Jiraj and that the blows were inflicted by the appellants in the course of a sudden fight in the passion without having taken undue advantage or acted in a cruel or unusual manner. The learned Judges of the High Court quite rightly pointed out that a preconcert in the sense of a distinct previous plan is not necessary to proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 47 - Cr. Appeal (D.B.) No. 141 of 1994 (R) the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. In the present case, therefore, it is necessary to scrutinise what the exact evidence in this behalf is which has been accepted by the courts below. The evidence of all the eyewitnesses relating to this incident has been summarised by the High Court in its judgment as follows:
―The three appellants were working the well (Milakwala well) that morning. When they saw Man Singh and Sher Singh going past the well they were asked them where they were going. On being told that they were going to harvest Jiraj's sugarcane field they abused them and told that not to go there but to work for them. Man Singh and Sher Singh did not listen to them and walked on. When they had gone 30-40 paces the three appellants rushed at them and began to beat them with the handles of spears which were in the hands of Bhopal and Kripal and with a lathi which was in Sheoraj's hand. Jiraj arrived at the spot and asked the appellants why they were beating his labourers and stopped them from beating them. Sheoraj hit him on the legs with his lathi and he fell down. Kripal stabbed him with his spear near the ear. Bhopal then stabbed him with his spear on the left jaw, put his legs on his chest and extracted the spear blade from his jaw. Just as the blade came off, Jiraj died.‖ It is, thus, evident that for proving the case of common intention the same is to be considered on the basis of the Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 48 - Cr. Appeal (D.B.) No. 141 of 1994 (R) material of each and every case as also depending upon the testimony of the prosecution witnesses.
So far as the judgment rendered by Hon'ble Apex Court in Balu alias Bala Subramaniam and Another v. State (UT of Pondicherry) (Supra), the Hon'ble Apex Court has been pleased to hold as under paragraph 11 to 13 that to invoke Section 34 of the Indian Penal Code, it must be established that the criminal act was done by more than one person in furtherance of common intention of all, for ready reference, paragraphs 11, 12 and 13 are being quoted hereunder as:-
"11. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that: (i) there was common intention on the part of several persons to commit a particular crime, and
(ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention.
12. The classic case on the subject is the judgment of the Privy Council in Mahbub Shah v. King-Emperor [Mahbub Shah v. King-Emperor, 1945 SCC OnLine PC] wherein it was held as under:
―... Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 49 - Cr. Appeal (D.B.) No. 141 of 1994 (R) ‗the common intentions of all', nor does it say ‗an intention common to all'. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to Their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult, if not impossible, to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.‖ (emphasis supplied) Reiterating the above principles laid down by the Privy Council in Mahbub Shah case [Mahbub Shah v. King- Emperor, 1945 SCC OnLine PC 5] , in Shankarlal Kacharabhai v. State of Gujarat [Shankarlal Kacharabhai v. State of Gujarat, AIR 1965 SC 1260] this Court held that the criminal act mentioned in Section 34 IPC is the result of the concerted action of more than one person and if the said result was reached in furtherance of the common intention, each person is liable for the result as if he had done it himself.
13. In Ramesh Singh v. State of A.P. [Ramesh Singh v. State of A.P., (2004) 11 SCC 305] this Court held as under:
Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 50 - Cr. Appeal (D.B.) No. 141 of 1994 (R) ―12. ... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 51 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Maharashtra [Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra, (1970) 1 SCC 696])‖ (emphasis supplied) It has further been held at para 14 that common intention is seldom capable of direct proof, it is almost invariably to be inferred from proved circumstances relating to the entire conduct of all the persons and not only from the individual act actually performed. The inference to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor.
In paragraph 15 it has been held that under Section 34 of the Indian Penal Code, preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons.
In the case of Virender v. State of Haryana (Supra), the Hon'ble Apex Court has laid down as under paragraphs 11 and 12 that in order to invoke the principle of joint liability in commission of criminal act as laid down under Section 34 of the Indian Penal Code, the prosecution should show that the criminal act in question was done by one or more accused Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 52 - Cr. Appeal (D.B.) No. 141 of 1994 (R) persons in furtherance of the common intention, for ready reference paragraphs 11 and 12 are being quoted hereunder as :-
―11. Proceeding on the basis that the appellant was present on the spot of the offence, we do not find that the commission of the offence of murder stands proved as against the appellant with the help of Section 34 IPC, either. In order to invoke the principle of joint liability in the commission of a criminal act as laid down in Section 34, the prosecution should show that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all. If this is shown, the liability for the offence may be imposed on any one of the persons in the same manner as if the act was done by him alone. It may be difficult to procure direct evidence to prove the intention of an individual, and in most cases it has to be inferred from the facts and relevant circumstances of the case. The common intention may be through a pre- arranged plan, or it may be generated just prior to the incident. Just as a combination of persons sharing the same common object is one of the features of an unlawful assembly, so is the existence of a combination of persons sharing the same common intention one of the features of Section 34.
12. As held by the Constitution Bench of this Court in Mohan Singh v. State of Punjab [AIR 1963 SC 174] , common intention denotes action in concert, and a prior meeting of minds--the acts may be different, and may vary in their character, but they are all actuated by the same common intention.
However, prior concert in the sense of a distinct previous plan is not necessary to be proved. As mentioned supra, the common intention to bring about a particular result may well develop on the Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 53 - Cr. Appeal (D.B.) No. 141 of 1994 (R) spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted.‖ In the case of Shishpal alias Shishu v. State (NCT of Delhi) (Supra), it has been held by Hon'ble Apex Court as under paragraph 14 by taking into consideration Section 33 of the Indian Penal Code for better understanding about applicability of the ingredients of Section 34 I.P.C. Section 33 of the Indian Penal Code brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 of the Indian Penal Code, a series of acts done by several persons would be related to a single act which constitutes a criminal offence. Similar meaning is also given to the word ―omission‖, meaning thereby a series of omissions would also mean a single omission. This provision would thus make it clear that an ―act‖ would mean and include other acts along with it.
Section 34 of the Indian Penal Code creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 54 - Cr. Appeal (D.B.) No. 141 of 1994 (R) of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution. For ready reference, paragraph 14 of the aforesaid judgment is required to be referred herein which reads hereunder as :-
"14. Both the appellants have been charged only based upon the rule of evidence available under Section 34IPC. Section 34 does not constitute an offence by itself, but creates a constructive liability. The foundational facts will have to be proved by the prosecution. Not only the occurrence, but the common intention, has to be proved beyond reasonable doubt. In Jasdeep Singh v. State of Punjab [(2022) 2 SCC 545] this Court considered the scope of Section 34IPC as follows :
―17. We shall first go back into the history to understand Section 34IPC as it stood at the inception and as it exists now.
Old Section 34 IPC New Section 34 IPC ‗34. Each of several ‗34. Acts done by persons liable for an act several persons in done by all, in like manner furtherance of as if done by him alone.-- common When a criminal act is done intention.--When a by several persons, each of criminal act is done such persons is liable for by several persons, that act in the same manner in furtherance of the as if the act were done by common intention of him alone' all, each of such persons is liable for that act in the same manner as if it were done by him alone.'
18. On a comparison, one could decipher that the phrase ―in furtherance of the common intention‖ was added into the statute book subsequently. It was first coined by Barnes Peacock, C.J. presiding over a Bench of Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 55 - Cr. Appeal (D.B.) No. 141 of 1994 (R) the Calcutta High Court, while delivering its decision in R. v. Gorachand Gope [1866 SCC OnLine Cal 16] which would have probably inspired and hastened the amendment to Section 34IPC, made in 1870. The following passage may lend credence to the aforesaid possible view :
‗It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals.'
19. Before we deal further with Section 34IPC, a peep at Section 33IPC may give a better understanding. Section 33IPC brings into its fold a series of acts as that of a single Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 56 - Cr. Appeal (D.B.) No. 141 of 1994 (R) one. Therefore, in order to attract Sections 34 to 39IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offence. A similar meaning is also given to the word ―omission‖, meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
20. Section 34IPC creates a deeming fiction by infusing and importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him on a par with the one who actually committed the offence.
21. What is required is the proof of common intention.
Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
22. It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid-fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34IPC which creates shared liability on those who shared the common intention to commit the crime.
23. The intendment of Section 34IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 57 - Cr. Appeal (D.B.) No. 141 of 1994 (R) bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act ―in furtherance of the said intention‖. One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative assessment. It is only a rule of evidence and thus does not create any substantive offence.
24. Normally, in an offence committed physically, the presence of an accused charged under Section 34IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offence consists of diverse acts done at different times and places. Therefore, it has to be seen on a case-to-case basis.
25. The word ―furtherance‖ indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
26. There may be cases where all acts, in general, would not come under the purview of Section 34IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offence. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
27. The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34IPC. A mere common intention per se may not attract Section 34IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 58 - Cr. Appeal (D.B.) No. 141 of 1994 (R) proved. Once again, this is an aspect which is required to be looked into by the court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.‖
25. This Court is now proceeding to examine the contention raised on behalf of the appellants that save and except appellants Dilip Yadav and Ram Naresh Yadav, the named accused persons in the F.I.R., as per the version of the informant, the other appellants, namely, Pradeep Yadav, Sohrai Yadav and Sheoji Yadav cannot be convicted under Section 302 of the Indian Penal Code since no specific attributability of commission of crime of murder of the deceased has been leveled against them. However, the learned trial court has convicted these appellants by framing charge against them under Section 34 along with Section 302 of the Indian Penal Code but, as has been laid down by the Hon'ble Apex Court in the judgments referred hereinabove that the prosecution is to establish that the criminal act in question was done by one of the accused persons in furtherance of the common intention of all.
26. It appears from the F.I.R. that the informant has taken the name of all the accused persons by making specific allegation against them to the effect that she saw Dilip Yadav, Sheoji Yadav, Pradeep Yadav, all sons of Moti Yadav, Sohrai Yadav, son of Uchal Yadav and Ram Naresh Yadav, son of Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 59 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Chulai Yadav having knife in their hands had surrounded her husband.
It has been alleged in the F.I.R. that Dilip Yadav and Ram Naresh Yadav had assaulted the deceased by knife in the left side of the chest due to which her husband fell down and immediately died.
Therefore, specific allegations have been leveled against appellants Dilip Yadav and Ram Naresh Yadav for commission of crime of murder of the deceased. However, it has been alleged that Dilip Yadav and Ram Naresh Yadav were having knife in their hands and they had assaulted by knife which ultimately led to death of the deceased. But, along with said allegation, the allegations are also against Sheoji Yadav, Pradeep Yadav and Sohrai Yadav who were also having knife in their hands and had been seen by the informant surrounding the deceased. Therefore, it cannot be said to be in dispute that all the accused persons were at the place of occurrence armed with knife, surrounded the deceased which does show the common intention of all the accused persons who had assembled in a place for the purpose of commission of crime of murder.
The aforesaid version has fully been supported by the testimony of P.W.1, P.W.3 and P.W.4, wherein they have stated about the conduct of the appellants of commission of crime.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
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The Hon'ble Apex Court has held in the judgment rendered in the case of Maqsoodan and Others v. State of Uttar Pradesh (Supra) that the common intention is to be seen on the basis of the facts of the given case that will be subjective satisfaction, therefore, the learned trial court, after taking into consideration the conduct of the appellants who had assembled at the place of occurrence, surrounded the deceased and two of them, namely, Dilip Yadav and Ram Naresh Yadav had assaulted the deceased by knife resulting into his death, has convicted all the appellants. The aforesaid facts complete the test of availability of ingredients of Section 34 of the Indian Penal Code as has been held by Hon'ble Apex Court in the judgment rendered hereinabove.
Learned counsel for the appellants, however, has relied upon the judgment rendered in the case of Harjit Singh & Others v. State of Punjab reported in (2002) 6 SCC 739 wherefrom also it is evident that it is up to the Court to reach to the subjective satisfaction about availability of ingredients of Section 34 of the Indian Penal Code in order to see that the conduct of the appellants is for furtherance of common intention to commit the murder.
27. This Court, on the basis of the scrutiny of the testimony of the prosecution witnesses, as per the discussion made hereinabove, is of the considered view that the argument which has been advanced that appellants Sheoji Yadav, Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 61 - Cr. Appeal (D.B.) No. 141 of 1994 (R) Pradeep Yadav and Sohrai Yadav have wrongly been charged under Section 34 of the Indian Penal Code and accordingly, wrongly been convicted under Section 302 of the Indian Penal Code by taking aid of Section 34 of the Indian Penal Code, is having no substance and, as such, the aforesaid argument is hereby rejected.
28. It has further been argued in alternative to the argument which has already been made hereinabove with respect to Dilip Yadav and Ram Naresh Yadav that at best the offence attracted against them is under Section 304 Part-I of the Indian Penal Code since there is allegation of grievous assault by knife and, as such, it will be just and proper to convict these two accused persons, namely, Dilip Yadav and Ram Naresh Yadav for commission of offence under Section 325 of the Indian Penal Code.
In order to strengthen his argument, learned senior counsel has relied upon the judgment rendered by Hon'ble Apex Court in Arun Nivalali More v. State of Maharashtra reported in (2006) 12 SCC 613 and Surain Singh v. State of Punjab reported in (2017) 5 SCC 796.
29. We have considered the aforesaid submission and before coming to the conclusion it requires to refer herein the scope and applicability of Part-I of Section 304 of the Indian Penal Code.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
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The Indian Penal Code, 1860 recognizes two kinds of culpable homicide. The first one is culpable homicide not amounting to Murder (Section 299 and 304 of the IPC) and another one is culpable homicide amounting to Murder (Section 300 and 302 of IPC). Section 304 of IPC provides punishment for culpable homicide not amounting to Murder. Under it there are two kinds of punishments applying to two different circumstances:-
(i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description of a term which may extend to ten years and fine.
(ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both.
The Hon'ble Apex Court in the case of Jgriti Devi v State of Himachal Pradesh reported in (2009) 14 SCC 771, it was held that the expression intention and knowledge postulate the existence of positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 63 - Cr. Appeal (D.B.) No. 141 of 1994 (R) and if it is only case of knowledge and not intention to cause death by bodily injury, then the same would be a case of second part of Section 304.
It further appears from Part-I of Section 304 of the Indian Penal Code that for a case to fall under the first part of Section 304, the element of intention is mandatory. By intention it meant the expectation of the consequences in question and intention does not therefore necessarily involve premeditation or thinking out the killing beforehand. If a person performing some act either (1) expects death to be consequences thereof; or (2) expects a dangerous bodily injury likely to cause death; or (3) knows that death is likely consequence thereof, and in each case death ensues, his intention in the first two cases and knowledge in the third mentioned circumstance.
In the case of Balwinder Singh v State of Punjab reported in 1989 Cr.L.J. 718 Punjab, has held that for absence of intention to cause death or knowledge that it might cause death, the accused cannot be held guilty for murder or culpable homicide not amounting to murder. He was convicted under section 448 (trespass) and 325 (grievous hurt by blunt weapon) of IPC.
It further appears that the first and second clause of section 299 of the Indian Penal Code requires intention. Where the intention is to cause death the offence is murder unless Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 64 - Cr. Appeal (D.B.) No. 141 of 1994 (R) the case falls under one of the exceptions mentioned in Section 300. If the exception does not apply, the first part of Section 304 will regulate the punishment. In the case of Purna Padhi v State of Orissa reported in 1992 Cr.L.J. 687 Orissa the deceased by the two accused person sustained multiple injuries by sharp cutting weapons. The injury on the right foot of the victim led to the amputation of the right foot from the level of the ankle. The victim was moved to hospital where 18 days after the occurrence the deceased died due to Uremia. As to the injury on the foot the High Court held that the offence committed could not be said to be murder. But no doubt by causing the foot injury along with others with sharp weapons, the accused must have intended to cause such bodily injury as was likely to cause death and the offence thus attracts the mischief of Part-I of Section 304 of IPC and the accused were convicted under Section 304 Part-I of IPC.
It further appears from the fact of the case of Matal Kisku v State of Jharkhand reported in 2006 Cr.L.J. 2517 Jharkhand that after the quarrel between the accused and the deceased, the deceased was hit by an iron rod by the accused. Thus injuries to the deceased were caused by the accused without premeditation and allegation of acting in a cruel or unusual manner was baseless. Conviction of accused was altered from 302 to one under section 304 Part-I. Cr. Appeal (D.B.) No. 137 of 1994 (R) With
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30. It is, thus, evident that for attracting the ingredients of Section 304 Part-I of the Indian Penal Code the first and foremost condition to be fulfilled as stipulated in first and second Clause of Section 299 of the Indian Penal Code requiring intention. Where the intention is to cause death the offence is murder unless the case falls under one of the exceptions mentioned in Section 300 of the Indian Penal Code.
31. This Court, having discussed the statutory provision and the judgment referred hereinabove and considering the given facts of the case that it is not the case herein that Dilip Yadav and Ram Naresh Yadav had assaulted the deceased for giving bodily injury, rather it is the specific allegation as has been found from the fardbeyan of the informant P.W.3 Romani Devi, corroborated by P.W.1 and P.W.4 that these accused persons, namely, Dilip Yadav and Ram Naresh Yadav had surrounded the deceased along with other appellants having knife in their hands. The aforesaid fact clearly stipulates that all the accused persons including the appellants Sohrai Yadav, Pradeep Yadav and Sheoji Yadav had knife in their hands and had surrounded the deceased which clarifies that there was an intention to commit murder and, as such, it will come under the fold of culpable homicide amounting to murder taking together the stipulation made under Section 300 and Section 302 of the Indian Penal Code.
Cr. Appeal (D.B.) No. 137 of 1994 (R)
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32. This Court, therefore, is of the view that as has been argued on behalf of the appellants pertaining to the conversion of conviction from Section 302 to Section 325 of the Indian Penal Code, cannot be said to be proper in the facts of the given case.
Herein, the conduct of these appellants along with other appellants very much clarifies that they had surrounded the deceased with the intention to kill and they had assaulted from the knife resulting into the death of the deceased at the spot.
As we have considered the fact of the case of Purna Padhi v State of Orissa (Supra) wherein the deceased had sustained multiple injuries by sharp cutting weapons due to which the victim was moved to hospital where after 18 days he died due to Uremia which can be considered to be a case as it was not the intention to commit murder. But herein the is quite different since the deceased had died at the spot due to the knife blow given by these two accused persons. Therefore, it is not the case where the offence will be said to have been committed to come under the fold of Part-I of Section 304 of the Indian Penal Code. Accordingly, the aforesaid argument is hereby rejected.
33. It further requires to refer herein that although P.W.2 and P.W.5 are not the eye witnesses of the occurrence but they Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 67 - Cr. Appeal (D.B.) No. 141 of 1994 (R) had reached just after the occurrence and they were told by P.W.1, P.W.3 and P.W.4 that these five accused persons have killed Thegu Yadav and the same has been found to be in corroboration with the testimony of P.W.1, P.W.3 and P.W.4 as also they have supported the prosecution version before the Investigating Officer also.
34. It is evident from the discussion made hereinabove that taking into consideration the testimony of the prosecution witnesses in entirety, corroborated by the testimony of the Doctor wherein the cause of death has been shown to be haemorrhage and shock and even the time of death with the time of conducting autopsy has also matched. Therefore, the learned trial court, after taking into consideration the entirety of facts and circumstances, if convicted the appellants, which according to our considered view, cannot be faulted with.
35. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 18.08.1994, passed by the Sessions Judge, Singhbhum East, Jamshedpur in S.T. No.229 of 1993, convicting the appellants, for the offence under Section 302/34 of the Indian Penal Code, which, we hereby, affirm.
36. This Court, after having passed the order as aforesaid has considered the sentence and found therefrom that the order of sentence to undergo rigorous imprisonment for life the Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 68 - Cr. Appeal (D.B.) No. 141 of 1994 (R) offence committed under Section 302/34 of the Indian Penal Code suffers from infirmity, reason being that Section 302 provides that along with the sentence of rigorous imprisonment of life, the fine is also mandatory to be inflicted as would appear from Section 302 of the Indian Penal Code, which reads as under:-
"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."
37. The trial Court, while imposing the sentence, has not considered the mandatory provision as contained under Section 302 of the Indian Penal Code and passed the order of sentence without inflicting any fine, therefore, the order of sentence is modified to the extent that apart from the sentence to undergo rigorous imprisonment for life, a fine of Rs.5,000/- (Rupees Five Thousand) each to the appellants, is hereby imposed.
38. With the aforesaid modification in the order of sentence, both these appeals stand dismissed.
39. The appellant Dilip Yadav is already in custody undergoing the sentence. The appellants Sheoji Yadav, Pradeep Yadav, Ram Naresh Yadav and Sohrai Yadav are on bail. Their bail is hereby, cancelled and they are directed to surrender in the Court below forthwith, for undergoing the Cr. Appeal (D.B.) No. 137 of 1994 (R) With
- 69 - Cr. Appeal (D.B.) No. 141 of 1994 (R) sentence imposed by the Trial Court. The Trial Court is also directed to issue process forthwith, compelling the surrender / production of the appellants Sheoji Yadav, Pradeep Yadav, Ram Naresh Yadav and Sohrai Yadav for undergoing the sentence.
40. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(Sujit Narayan Prasad, J.)
I agree
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated, the 14th day of February, 2023.
Birendra /A.F.R.