Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1241 OF 2003
Sunil Kumar & Anr. .... Appellants
Versus
State of U.P. .... Respondent
WITH
CRIMINAL APPEAL NO. 1242 OF 2003
Ram Singh .... Appellant
Versus
State of U.P. .... Respondent
J U D G M E N T
V.S. SIRPURKAR, J.
1. This judgment will dispose of two appeals being Criminal
Appeal No.1241 of 2003 and Criminal Appeal No. 1242 of 2003. The
High Court’s judgment dismissing the appeal and confirming the
conviction and sentence is in challenge in these appeals at the
instance of the three accused persons, namely, accused Sunil
Kumar, accused Tilak Singh and accused Ram Singh. Originally,
five accused persons came to be tried for committing offences
under Section 304 Part II read with Sections 147, 504 and 302 read
with Sections 149, 147 and 504, IPC. They were accused Sunil
Kumar, accused Jageshwar, accused Tilak Singh, accused Ram Singh
and accused Munna. All the accused persons were charged and
convicted for the offence under Section 304 Part II read with
Section 149 and Section 147, IPC and were sentenced to suffer
rigorous imprisonment for four years. All of them filed appeal
before the High Court. However, the High Court convicted all the
accused persons.
2. Before us only three accused persons have come up in
appeal, they being accused Sunil Kumar and accused Tilak Singh (in
Criminal Appeal No. 1241 of 2003) and accused Ram Singh (in
Criminal Appeal No. 1242 of 2003). It is reported that accused
Jageshwar and accused Munna are no more. That is how we have to
consider the case only of three appellants. They shall be
referred to as appellant Nos. 1, 2 and 3 respectively.
3. The prosecution case was that all the accused persons had
on 23.02.1982 at about 5 p.m. in Mohalla Shivapuri within the
limits of Police Station Orai, District Jalaun formed an unlawful
assembly with the common object to commit the murder of Salim and
inflict injuries on the person of Salim causing his death. The
matter was reported by Hamid Khan, father of the deceased
immediately at 5.30 p.m. It was contended therein that when Salim
was working in his shop at about 5 p.m., the accused persons came
to his shop and started asking Salim whether he considered himself
to be a great gunda since he was showing off in the exhibition
ground and thereafter started abusing him in filthy language. On
being objected by Salim, all the accused started beating him with
lathis/dandas whereupon Salim fell down. The complainant raised
an alarm hearing which witnesses Naeem, Mohd. Ilyas @ Naushe and
several other persons reached the spot. Seeing them, accused
persons fled away from the scene.
4. Usual investigations followed and the accused came to be
arrested barely within 2 or 3 days. The injured Salim was sent
for Medical examination of the injuries where as many as six
contused wounds were found on his body. Salim had become
unconscious and, therefore, all the injuries could not be noted.
Salim was thereafter transferred to the Medical College, Kanpur
for treatment where next day i.e. on 24.02.1982 at 7.55 a.m. he
breathed his last. The information of death was sent to the Police
Station, Swarup Nagar, Kanpur and an inquest was prepared of his
body. Photographs were taken and the body was sent for post
mortem examination. Salim was hardly 22 years old. In the post
mortem examination, three injuries were found on his head and it
was found that he had suffered a linear fracture of parietal bone
on both sides extending from left ear to right ear. Haemetoma was
found in the brain and according to the doctors, death was due to
coma as a result of the head injuries caused by blunt weapons.
The accused were charged for the offences under Sections 147, 304,
323 and 504 IPC. They abjured the guilt. Hamid Khan (PW-1),
Mohd. Ilyas @ Naushe (PW-2) and Naeem (PW-3) were examined by the
prosecution as eye-witnesses along with others. Their evidence
was accepted and the accused persons came to be convicted as
stated above. Their appeal also failed and that is how the
accused persons are before us.
5. Mr. Amarendra Sharan, learned Senior Counsel who appeared
in both the appeals attacked the judgment of the High Court and
the Trial Court firstly, contending that there was absolutely no
reason for the accused persons to assault the deceased and no
motive has been attributed to all these accused persons. Learned
Counsel suggested that basically the story of the prosecution in
the absence of any apparent motive became extremely doubtful.
6. We are not impressed by this submission since motive in a
criminal case is irrelevant where evidence of the eye-witnesses is
available. In this case, there were as many as three eye-
witnesses one of whom was the father of the deceased. Therefore,
the question of absence of motive would have no importance
whatsoever.
7. Learned Senior Counsel then took us extensively through
the evidence of three eye-witnesses and pointed out that the
evidence of the father would be that of an interested witness and
there was no possibility of the two other witnesses, namely, Mohd.
Ilyas @ Naushe (PW-2) and Naeem (PW-3) being the eye-witnesses as
according to the Counsel, they were busy in their own shops. But
it has clearly come in the evidence that the father was very much
present at the shop while the shop of Mohd. Ilyas @ Naushe (PW-2)
is just by the side of the shop of the deceased. It has also come
in the evidence that the shop of Naeem (PW-3) is about 20 yards
from the shop of the deceased which is a tractor repairing
workshop. Considering this position and also considering that it
was 5 O’clock in the evening, there is no possibility of the shop
remaining closed and under these circumstances, the presence of
the eye-witnesses would be most natural. Therefore, on that
count, the evidence cannot be discarded. It was also suggested
that the day on which the occurrence took place was Tuesday and as
such the market remained closed. The shops of the deceased as also
the eye-witnesses were not big shops and they were in the nature
of small workshops where welding and electric work etc. was going
on. Under such circumstances, it is not possible to hold that
such small shops also remained closed on Tuesday. Again, in the
wake of the direct evidence of the witnesses, we cannot accept the
contention that the shops were not there. All the three witnesses
have very specifically deposed about the presence of the accused
persons. They have also deposed about the individual acts in
assaulting the deceased Salim on his head. There is very little
cross-examination on the actual occurrence. We have seen the
evidence and found that the evidence given by these witnesses
could not be shaken even in the cross-examination.
8. It was suggested further that PW-1, Hamid Khan had in his
evidence admitted that he did not pay any tax to the municipality
and there was no permit which would mean that there was no shop as
such. Now, merely because the permit was not there, it does not
mean that the deceased was not doing the gas welding work in his
shop. In fact, all the witnesses have unanimously stated about
the shop being there and the deceased being assaulted. Much of
the cross-examination was redundant of this witness as also the
other witnesses. Same is the story of evidence regarding Mohd.
Ilyas @ Naushe (PW-2). There appears to be some cross-examination
as regards the identification particularly of Mohd. Ilyas @
Naushe. However, this witness had actually identified all these
accused persons since they all knew the deceased as also the
accused persons.
9. The Trial Court as well as the High Court have considered
the evidence closely and we do not think that there is any error
in the appreciation.
10. Lastly, it was stated by the learned senior Counsel that
the offence would not be under Section 304 Part II, IPC. At the
most it could be under Section 325 or 326, IPC. We do not think
that we can accept this argument. In fact, seeing the seriousness
of the wounds, injuries on the head including the fracture on the
head, we wonder as to how the accused were charged of the offence
under Section 304, IPC. It was absolutely incorrect. They should
have been charged under Section 302, IPC. However, in the absence
of the appeal by the State, we would not be in a position to do
anything in that behalf. Learned Counsel also suggested that
considering that this incident had taken place in the year 1982
and sentence of four years would be harsh punishment. We do not
think so. In fact, the punishment is on the lenient side. After
all, one young life was lost at the young age of 22 years. While
considering the sentence, merely because the appeal pended and
merely because the incident had taken place long back would not by
itself justify any interference with the punishment, particularly,
when the punishment itself is a lenient one.
11. In that view, both the appeals are dismissed as being
without any merit. The accused persons, who are on bail, shall
immediately surrender within 15 days failing which immediate steps
including issuance of non-bailable warrant shall be taken.
……………………………..J.
(V.S. Sirpurkar)
……………………………..J.
(Dr. Mukundakam Sharma)
New Delhi;
January 6, 2010