PETITIONER: JAMNA Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT21/09/1993 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 AIR 79 1994 SCC Supl. (1) 185 JT 1993 (5) 334 1993 SCALE (3)824 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J.- This is an appeal under Section
379 CrPC read with Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act. There
are eight appellants. They along with eight others were
tried for offenses punishable under Sections 147, 148,
302/149, 324/149 and 323/149 IPC. The trial court acquitted
all of them. The State preferred an appeal and the High
Court while confirming the acquittal of the other accused,
convicted the appellants. Appellants 1 to 4 are convicted
under Sections 302 read with 149 IPC and each of them is
sentenced to undergo imprisonment for life. The remaining
four appellants are convicted under Sections 326/149 IPC and
each of them is sentenced to undergo two years’ RI.
Ghanshyam, appellant 4 and Shyam Lal, appellant 5 are
further convicted under Section 147 IPC and sentenced to
undergo six months’ RI and the remaining six appellants are
convicted under Section 148 IPC and sentenced to undergo one
year’s RI. All the eight appellants are further convicted
under Sections 324/149 and 323/149 IPC and each of them is
sentenced to undergo one year and six months’ RI
respectively. Appellant 1, Jamna is reported to be dead and
a death certificate is filed. Permanand, appellant 3 is
also reported to be dead as per the office report dated July
21, 1988. Therefore the appeal stands abated in respect of
these two appellants.
2. The prosecution case is as follows: One Shakoor, a
nephew of PW 6 is the deceased in the case. PW 6 is the
wife of PW 4. Roshan Khan, PW 1 is the informant. These
three witnesses and two other women, members of PW 6’s
family received injuries in the occurrence. 20 or 25 days
prior to the present occurrence, Kallu, a member of PW 6’s
family attempted to outrage the modesty of the wife of Shyam
Lal (appellant 5), who lodged a report to the police. Kallu
was arrested and released on bail about one week prior to
the present occurrence. On account of this incident, all
the 16 accused bore grudge and were inimical towards Kallu
and other members of the family. The feelings got further
strained because of initiation of proceedings under Section
107 CrPC. On February 7, 1974, it is alleged that the 16
accused went to the house of PW 6 at about 1 p.m. armed with
spears, guptis, sangs and lathis. Shyam Lal exhorted others
and thereafter all the 16 accused started assaulting PW 4.
who happened to be present outside his house at that time.
Hearing the noise, the deceased, PW 6 and the other two
ladies came out of the house. Thereupon they were also
assaulted by the accused. Shakoor, the deceased, who had a
lathi, started wielding it in defence of members of his
family. Thereupon Kanhiya, appellant 2 said that Shakoor
should be dead. Thereupon he himself, Jamna, appellant 1,
Permanand, appellant 3 and Ghanshyam, appellant 4 attacked
the deceased. Ghanshyam inflicted some blows with lathis
and the others who were armed with guptis and spears
attacked the deceased and inflicted a number of incised
injuries and killed him on the spot. Thereafter they ran
away. The occurrence was also witnessed by PW 9 and some
others who arrived at the scene of occurrence on hearing the
noise. PW 1 went to the police station, seven miles away,
and lodged an FIR at 3.50 p.m. on the same day. The
investigation
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commenced and S.I. reached the scene of occurrence. He sent
the injured for medical examination who were examined by
Doctor, PW 2 on the same night. The dead body of the
deceased was sent for postmortem and PW 2 conducted the
postmortem. He found a number of incised and punctured
wounds, four contusions and some abrasions. On internal
examination he found that several ribs had been cut,
occipital (sic) was cut and lungs were also injured. The
Doctor opined that the deceased died due to shock and
haemorrhage due to these punctured and incised wounds. All
the accused pleaded not guilty. The learned Sessions Judge
discarded the evidence of the eyewitnesses including the
injured witnesses on the ground that the time and place of
occurrence are in doubt. According to the learned Sessions
Judge, in view of the medical evidence that there was semi-
digested food in the stomach of the deceased, the occurrence
must have taken place earlier some time in the morning and
not in the midday. The place of occurrence was doubted
because the blood stains were not found. Then the learned
Sessions Judge proceeded to consider the omissions and
discrepancies and ultimately held that the witnesses cannot
be relied upon particularly when they are all interested.
The High Court, on the other hand, held that the injured
witnesses are reliable to the extent that specific overt
acts were attributed to the accused. The High Court further
held that the common object of the unlawful assembly was not
to commit murder but was only to cause grievous hurt. But
the first four appellants who attacked the deceased, I could
be held guilty under Sections 302/34 IPC. The High Court
also convicted all of them for causing injuries to the
witnesses. Since no overt acts were attributed to the
remaining eight accused, the High Court confirmed their
acquittal.
3.Shri R.K Garg, learned senior counsel appearing for the
appellants submitted that the learned Sessions Judge has
given a number of reasons for not relying upon the evidence
of the injured witnesses and the view taken by him is quite
reasonable and therefore the High Court erred in interfering
with the findings of the trial court. He also submitted
that PW 1, who is the author of the earlier report, was a
highly interested witness and the version given by him was
repeated by the other witnesses and having regard to many
discrepancies and omissions, the evidence of all the
witnesses has to be rejected. Learned counsel also pointed
out that the High Court has not examined all the reasons
given by the Sessions Court and therefore the judgment of
the High Court is liable to be set aside.
4.From the above-stated facts, it can be seen that PWs 1, 4
and 6 are the injured witnesses. The learned counsel,
however, tried to show that the injury on PW 1 was only a
traumatic swelling. But the Doctor says that the same could
have been caused by a blunt weapon and that is the version
of PW 1. PWs 4 and 6 received quite a few injuries and their
presence at the scene of occurrence cannot be doubted. The
evidence of PWs 5 and 9 was not treated to be very material.
Therefore we have to proceed on the footing that PWs 1, 4
and 6 were present at the scene of occurrence and had
witnessed the same. When once their presence is
established, even assuming that there are some discrepancies
regarding the actual time of occurrence, that is not at all
material. Learned counsel, however, submitted that if the
occurrence had taken place in the morning then having regard
to the fact that the FIR was given only at 3.50 p.m. then it
must be presumed that there was lot of time for
consultations and
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therefore it must be held that the FIR was a result of such
consultations. It is needless to say that the delay by
itself is not a circumstance to doubt the prosecution case.
Further, in the instant case, the presence of semi-digested
food in the stomach by itself is not an indication that the
occurrence must have taken place in the early hours. On the
other hand, it stands to reason that the deceased might have
taken his food some time in the morning at about 9 or 9.30
a.m. In any event, in our view, this is not at all a
significant factor. PW 1 in his chief-examination has given
all the details about the relationship of the deceased and
other witnesses and the relationship of the accused among
themselves. He has also given details about the earlier
incident where Kallu was said to have misbehaved with a lady
and the consequent ill-feelings. Coming to the occurrence,
he has mentioned the names of all the 16 accused who came in
a group. Then he deposed that among the accused Kanhiya,
appellant 2, Jamna, appellant 1 and Permanand, appellant 3
were armed with ballams and Ghanshyam, appellant 4 was armed
with a lathi and all the four of them attacked Shakoor, the
deceased. He has also mentioned about the presence of PWs 4
and 6 and that they received injuries. He further deposed
that on the same day, he went to the police station and gave
a report at about 4 p.m. He was crossexamined at length.
The first part of the cross-examination was with reference
to the motive to which we need not advert. The next part of
the crossexamination was about Section 107 CrPC proceedings.
Then coming to the occurrence, the cross-examination
proceeded to elicit about the nature of the weapons and as
to who attacked first etc. This witness specifically stated
that these four accused attacked the deceased as instigated
by Kanhiya. Some of the discrepancies elicited are that in
the earlier statement, he failed to state about Shyam Lal
being incited in the first incident and that he has not
stated that the deceased was also beaten after he fell down.
Then he was cross-examined with reference to the injuries
found on him. The witness denied the suggestion that some
strangers had attacked the witnesses and the deceased in the
earlier part of the day. Having gone through the evidence
in general as well as the crossexamination, we are not able
to find any material discrepancy or infirmity in the
evidence of PW 1. He has stated almost all these particulars
in the FIR also. Learned counsel, however, submitted that
some of the details given in respect of the attack have not
been mentioned. Further, with regard to the attack on the
deceased, it is specifically mentioned in the FIR that the
four appellants attacked the deceased and inflicted the
injuries.
5. PW 4 is the next important witness. He had a number of
injuries on him and his presence at the scene of occurrence
is not in dispute. This witness also has given the details
and descriptions of the accused. Now, coming to the
occurrence, PW 4 deposed that all the 16 accused came in a
body and stated that his family members are insulting them
and the accused started beating him. On his shouting, his
wife PW 6, the deceased and the two other ladies came out
from the house. Thereafter he gave the details of the
attack on the deceased. Then, he further stated that Kamla,
appellant 6 hit him on the head with a pharsa and somebody
also hit him with a ballam and he also received some lathi
injuries. In the cross-examination, this witness stated
that he had no personal knowledge about Kallu having
insulted the wife of Shyam Lal. He was also cross-examined
at length with reference to the earlier incident. Then he
was cross-examined with reference to his statement under
Section 161 CrPC. It
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appears that in that statement he stated that first Dullan
had tried to rescue him and then the deceased Shakoor
wielded his lathi whereas in the present version he has
stated that Shakoor, the deceased wielded his lathi and
tried to save them. Then the other discrepancy is whether
Kallu was at the door and ran away after seeing the people.
We think these two discrepancies are not at all material.
Then he was cross-examined with reference to the proceedings
under Section 107 CrPC. Thereafter he was cross-examined
with reference to the injuries and when he became
unconscious. This witness clearly stated that he had no
enmity as such with Shyam Lal. PW 6 is the next injured
witness, who is none other than the wife of PW 4. She also
had fairly serious injuries. She deposed in the chief-
examination that accused Kanhiya, Permanand, Jamna, Mavnu
and Shyam Lal were holding ballams and some others were
holding guptis and the rest were holding sticks. She has
given a detailed account of the occurrence. She also stated
that she pleaded with the accused not to beat them. She
specifically stated that the accused Kanhiya, Jamna,
Permanand and Ghanshyam attacked and inflicted injuries on
the deceased. She further stated that Shyam Lal hit her
with a ballam and other accused also hit her. She was also
cross-examined at length with reference to the misbehaviour
of Kallu. As far as the occurrence is concerned, she also
asserted in the cross-examination that the accused
surrounded them and beat them. She was cross-examined with
reference to her earlier statement under Section 161 CrPC.
She stated that the next day her statement was recorded by
the police officer at 2 p.m. She denied the suggestion that
some unknown persons entered their house in the darkness and
attacked them.
6. The evidence of these three injured witnesses is simple
and straightforward at least with reference to the attack on
the deceased and on themselves. The reasons given by the
learned Sessions Judge for doubting their evidence are very
much strained. We have gone through the judgment of the
learned Sessions Judge carefully and he is right to the
extent that the witnesses are all interested. But that by
itself is not a ground to reject their evidence. Much of
the criticism of the prosecution case was about Kallu having
not been attacked. But it is the prosecution case that
Kallu was not there and he managed to go away. Learned
Sessions Judge has commented much about the motive aspect.
But when once there are direct witnesses, the motive assumes
less or little importance. The other discrepancies and
omissions pointed out are not at all material. The omission
which was very much highlighted was that the deceased
starting wielding his lathi and on this question the earlier
statement and the present version are compared so
meticulously, which, in our view, is not at all such an
important thing. In the evidence of PW 1, the discrepancies
in his statement about the presence of interconnecting door
in between the two houses is also commented upon very much.
We are only pointing out some of these discrepancies just to
show that the appreciation of the evidence by the learned
Sessions Judge was wholly unsound and we think it is not
necessary to examine every such finding in respect of these
discrepancies. The High Court has rightly come to a
different conclusion.
7. The High Court has further held that the common object
of the unlawful assembly was not to commit murder and that
the deceased was not killed in prosecution of such a common
object. On the other hand, the finding was that the common
object of the unlawful assembly was only to cause grievous
hurt
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and in fixing the membership of the unlawful assembly, the
High Court applied overt acts test namely that only such of
those accused to whom specific overt acts in respect of the
attack on the deceased and the witnesses were attributed,
can be taken to be the members of the unlawful assembly, the
common object of which was only to cause grievous hurt. The
High Court, however, convicted appellants 1 to 4 under
Sections 302/149 IPC on the ground that they alone had the
common intention to kill the deceased and the same was not
shared by the other accused, who did not participate in the
attack on the deceased. Therefore the High Court confirmed
the acquittal of the eight accused to whom specific overt
acts were not attributed. The High Court convicted all the
eight appellants under Sections 326, 323 and 324 read with
Section 149 IPC having held that the common object of the
unlawful assembly was to cause grievous hurt. So far as the
first four\appellants are concerned, they are convicted for
their specific overt acts of attacking the deceased.
Appellants 1 to 4 are held to share the common intention and
in the result Section 34 IPC was applied. Learned counsel,
however, submitted that the first four appellants can be
convicted under Sections 326/149 IPC since against them also
there is an omnibus allegation.
8. The evidence of PWs 1, 4 and 6, the three injured
witnesses whose evidence has been accepted by the High
Court, is to the effect that appellants 1, 2 and 3 were
armed with ballams and the medical evidence establishes that
a number of punctured wounds, many of which proved fatal,
should have been inflicted only with ballams. To that
extent, appellants 1 to 3 can even be convicted under
Section 302 simpliciter also. However, so far as Ghanshyam,
appellant 4 is concerned, he was no doubt a member of the
unlawful assembly, again the common object of which was to
cause grievous hurt only and he was armed only with a lathi
and according to the medical evidence, there were some
contusions on the deceased which were simple injuries.
Therefore his case also would be the same as appellants 5 to
8 who are made constructively liable under Sections 326/149
IPC even in respect of the attack on the deceased. The case
of appellant 4 is in no way different from these accused.
It is only appellants 1 to 3 who attacked the deceased with
ballams and caused a number of fatal injuries.
9. When the finding is that the common object of the
unlawful assembly in general was only to cause grievous
hurt, if anybody has exceeded the same, he or they would be
liable for their individual acts. In this view of the
matter, Ghanshyam, appellant 4 cannot be said to have shared
the common intention along with appellants 1 to 3 who
instantly killed the deceased by inflicting injuries with
ballams. Therefore he would also be liable under Sections
326/149 IPC.
10.As already noted appellants 1 and 3 have died but the
conviction of appellants 1 to 3 under Sections 302/149 is
correct and in that view of the matter, the conviction and
sentence of Kanhiya, appellant 2 have to be confirmed under
Sections 302/149 IPC.
11.In the result, the appeal against appellant 1, Jamna and
appellant 3 Permanand, though their convictions are
confirmed, stands abated. The appeal against appellant 2,
Kanhiya is dismissed and all the convictions and sentences
awarded to him are confirmed. So far as appellant 4,
Ghanshyam is concerned, his conviction under Sections
302/149 IPC and the sentence of imprisonment of life awarded
thereunder are set aside. Instead he is convicted under
Sections 326/149 IPC and sentenced to undergo two years’ RI.
All other convictions and
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sentences awarded in respect of all the appellants namely 2,
4, 5, 6, 7 and 8 are confirmed. The appeal is allowed
partly in respect of appellant 4, Ghanshyam and dismissed
against the remaining appellants namely 2, 5, 6, 7 and 8. If
they are on bail they shall surrender and serve out the
remaining sentence.
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