{"id":125493,"date":"2002-08-01T00:00:00","date_gmt":"2002-07-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/babu-ram-and-anr-vs-state-of-u-p-and-ors-on-1-august-2002"},"modified":"2015-06-07T09:53:52","modified_gmt":"2015-06-07T04:23:52","slug":"babu-ram-and-anr-vs-state-of-u-p-and-ors-on-1-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/babu-ram-and-anr-vs-state-of-u-p-and-ors-on-1-august-2002","title":{"rendered":"Babu Ram And Anr vs State Of U.P. And Ors on 1 August, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Babu Ram And Anr vs State Of U.P. And Ors on 1 August, 2002<\/div>\n
Bench: R.C. Lahoti, Brijesh Kumar<\/div>\n
           CASE NO.:\nAppeal (crl.)  255 of 2001\n\nPETITIONER:\nBABU RAM AND ANR.\n\nRESPONDENT:\nSTATE OF U.P. AND ORS.\n\nDATE OF JUDGMENT: 01\/08\/2002\n\nBENCH:\nR.C. LAHOTI & BRIJESH KUMAR\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
2002 Supp(1) SCR 366<\/p>\n
The Judgment of the Court was delivered<\/p>\n
R.C. LAHOTI, J. Ram Swarup, Raja Ram, Babu Ram, Deshraj and Dularey Prasad,
\nthe five accused persons were tried on charges under Section 302\/149, 148
\nand 147 IPC. The Court convicted Ram Swarup and Raja Ram for the offences
\nunder Sections 148 and 302\/149 IPC and sentenced them to suffer two years’
\nrigorous imprisonment and imprisonment for live respectively. Babu Ram,
\nDeshraj and Dularey were convicted under Section 147 and 302\/149 of IPC and
\nsentenced respectively to one year’s rigorous imprisonment and imprisonment
\nfor life. All the accused persons preferred an appeal before the high
\nCourt. The High Court has held the accused Dularey not to have participated
\nin the incident at all and therefore there was no unlawful assembly of the
\naccused persons. Accordingly, Dularey Prasad has been completely exonerated
\nand acquitted. The conviction of all other accused persons in so far as
\nreferable to Section 147, 148 and 302\/149 IPC has been set aside. Instead
\nRam Swarup, Raja Ram, Babu Ram, Deshraj have been held guilty of an offence
\npunishable under Section 302\/34 of IPC and sentenced to imprisonment for
\nlife each. Feeling aggrieved by their conviction as ordered by the High
\nCourt, the accused Babu Ram and Deshraj have preferred Criminal Appeal No.
\n255\/2001 and Ram Swarup and Raja Ram have preferred Criminal Appeal No.
\n256\/2001, both by special leave.\n<\/p>\n
The occurrence took place on 14.3.1980 at a both 12.30 p.m. on the
\noutskirts of village Baburahi, P.S. Shahabad, District Hardoi of Utter
\nPradesh. Shri Krishna, PW1 is the brother of late Mangali who died in the
\noccurrence. It appears that tubewell operator Ram Autar (not examined) and
\nAsharfi Lal, Tubewell Amin, PW3, accompanied by villagers Ram Pal, Shri
\nKrishna and Mangali were taking a round of the village fields for making a
\nsurvey of such fields as were irrigated from the tubewell in that season so
\nas to make record of the same and levy irrigation charges. When they
\nreached the field of accused Ram swarup. Mangali said that Ram Swarup’s
\nfields have been irrigated by tubewell whereas Ram swarup denied the same.
\nOther accused-appellants were present. Accused Deshraj and Babu Ram were
\narmed with lathis. The deceased Mangali also had a lathi with him. The
\naccused Ram Swarup and Raja Ram had licensed guns with them. On Ram Swarup
\naccused vehemently denying his fields having been irrigated, a verbal
\nexchange followed by hot words ensued between late Mangali and accused Ram
\nSwarup. Dularey exhorted the accused persons whereupon appellant Deshraj
\nand Babu Ram dealt lathi blows on Mangali. Mangali too wielded his lathi in
\nhis defence. Ram Autar and Asharfi Lal, PW3 being public servants and
\nobviously not interested in involving themselves in the feud between the
\nprivate parties thought it better to slip away from the scene and did so.
\nShri Krishna, PW1 tried to intervene and pacify the parties engaged in
\naltercation. At this point of time appellants Ram Swarup and Raja Ram
\nopened fire with their respective guns aiming at Mangali. Mangali sustained
\na fire arm injury and fell down. He died on the spot. The dead body was
\nthen removed by the villagers to the village.\n<\/p>\n
Shri Krishna, PW1 lodged first information report of the incident at about
\n2.30 p.m. at police station, Shahabad situated at a distance of little more
\nthan two miles from the village. The report was registered by Om Hari
\nSharma, Sub- Inspector present at the police station. He registered a
\ncognizable offence and commenced investigation. The dead body of the
\ndeceased was referred for post-mortem examination which was performed by
\nDr. U.D. Kapoor, PW5 on 15.3.1980 at 1 p.m. The following injuries were
\nfound on the body of the deceased:\n<\/p>\n
1.     Firearm wound of entry:- of the size of 2.5cm x 2.5. cm x cranial
\ncavity deep, on the left side of forehead, 2 cm above the outer end of left
\neyebrow, margins of the wound are lacerated and inverted. Blackening
\ncharring present.\n<\/p>\n
2.     One firearm wound of exit 4.5 x 3.5. cm x margin are irregular and
\neverted. This wound is communicating with the wound of entry no. (1). The
\nskull bone broken into pieces are visible both form entry and exit wounds.\n<\/p>\n
3.       Contusion, 6 cm x 2 cm on the Rt. side of face middle part, just
\nin front of Rt. ear.\n<\/p>\n
4.     Abrasion, 3 cm x 2 cm on left cheek<\/p>\n
5.     Contusion 3 cm x 2 cm on right cheek below right eye<\/p>\n
6.     Lacerated wound:- 3 cm x 1 cm x bone deep being right eye.\n<\/p>\n
7.     Lacerated wound:- 1 cm x 0.5 cm x bone deep on left eye.\n<\/p>\n
8.     Lacerated wound:- 1 cm x 0.5 cm x bone deep in the middle of front
\nof Nose. Underlying nasal bone is fractured.\n<\/p>\n
9.     Lacerated wound:- 5 cm x 2 cm x bone deep on left side of chin.
\nUnderlying bone is fractured.\n<\/p>\n
10.    Lacerated wound:- 3 cm x 2 cm x bone deep on Rt. side of chin 6 cm
\nbelow Rt. angle of mouth Rt. side mandible bone is fractured<\/p>\n
11.   Lacerated wound:- 2 cm x 1 cm x muscle deep, in the middle of lower
\nlip.\n<\/p>\n
12.   Lacerated wound:- 6 cm x 1 cm x bone deep, on Rt. side of head, 10 cm
\nabove the Rt. ear. right parietal bone of skull is fractured.\n<\/p>\n
All the injuries were ante-mortem. On internal examination, frontal bone
\nunder injury nos. 1 and 2 was found to have fractured. Undigested food and
\npieces of rice were found in the intestine. The cause of death was shock
\nand haermorrhage as a result of the ante-mortem injuries. Dr. Kapoor when
\nexamined in the Court stated that after sustaining four to five injuries
\nout of injury nos. 3 to 12 injured would not have remained in standing
\nposition and would have fallen down. Injury nos. 3 to 12 were not enough
\neven cumulatively to cause death. So far as injury nos. 1 and 2 are
\nconcerned they were caused by one gun shot.\n<\/p>\n
The ocular evidence adduced on behalf of the prosecution proves beyond
\nreasonable doubt the prosecution story including the role assigned to each
\nof the accused persons excepting Dularey who has been acquitted by the High
\nCourt and there is no challenge laid to Dularey’s acquittal before us. Shri
\nKrishna, PW1 is the brother of the deceased. His testimony has been
\ncriticized by the learned senior counsel for the appellants on two counts
\nmainly. Firstly, it is submitted that Shri Krishna is the brother of the
\ndeceased and therefore a witness interested’ in prosecution and at the same
\ntime there is a background of strained relationship available between the
\naccused and the deceased. Secondly, it is submitted that according to Shri
\nKrishna his brother Mangali, the deceased and he had taken the breakfast
\nwhich consisted of Dal-Roti but according to post-mortem report the semi
\ndigested food in the intestine of the deceased consisted of rice and that
\nshows that Shri Krishna, PW1 was not with the deceased . We have noted this
\nsubmission but we cannot go that far as the learned counsel for the
\nappellants proposes us to carry inasmuch as we are of the opinion that none
\nof the grounds can be enough for discarding over board the testimony of
\nShri Krishna. His being a relation of the deceased and having strained
\nrelationship with the accused persons since before the incident can
\npersuade the Court of facts to be on its guard and be cautious while
\nevaluating the worth of his testimony. So far as the other submission is
\nconcerned that has only to be rejected. The post-mortem report states the
\ncontents in the stomach of the deceases to be semi-digested food and pieces
\nof rice. The post-mortem report does not say that the contents consisted
\nexclusively of rice only. The doctor conducting the autopsy was not asked
\nany question in this regard by the defence. According to Shri Krishna, PW1
\nthe breakfast consisted of Dal-roti but he has not specifically denied any
\nrice having been served as a part of the breakfast in the morning. It is
\ncommon knowledge that in Central India rice install quantity is generally
\ncooked and served along with Dal-roti and rice is not the principal meal or
\neaten exclusively. We could have appreciated and assigned some weight to
\nthe submission of the learned counsel for the appellant if the doctor
\nconducting the autopsy would have been emphatic in saying that the stomach
\ncontents of the deceased were rice only while Shri Krishna, Pwl would have
\nbeen specific in saying or admitting that the breakfast did not have any
\nrice.\n<\/p>\n
The evidence of Shri Krishna finds corroboration from the promptly lodged
\nFIR and the medical evidence. He is also supported with all force by
\nRampal, PW2, who is a villager and an independent witness and as to whom it
\nis not even suggested why he would tell a lie and implicate the accused
\npersons falsely. Asharfi Lal, PW3, the tubewell Amin has turned hostile. He
\nwas declared so and cross-examined by the public prosecutor. However, even
\nAsharfi Lal PW3 has admitted the presence of Mangali, the deceased and a
\ndispute having taken place with him during the inspection visit of the
\nwitness and the use of lathis and gun by the assailants of Mangali though
\nhe did not identify or describe the assailants. He admitted during cross-
\nexamination that on the date of incident he had left the place of the
\nincident for fear of his life. He further admitted that he has to perform
\nfield duties and he has a fear from the accused persons and therefore he
\nwas not inclined to give full statement of the incident which had occurred.\n<\/p>\n
It was submitted by the learned counsel for the appellants that Ram Autar,
\nan independent eye witness present at the scene of occurrence according to
\nprosecution case and a government servant has not been examined, and
\ntherefore, an adverse inference should be drawn against the prosecution. It
\nis settled law that non-examination of an eye-witness cannot be pressed
\ninto service like a ritualistic formula for discarding the prosecution case
\nwith a stroke of pen. An effort should be made at appreciating the worth of
\nsuch evidence as has been adduced. If the evidence coming from the mouth of
\nthe eye-witnesses examined in the case is found to be trust worthy and
\nworth being relied on so as to form safe basis for recording a finding of
\nguilt of the accused persons than non examination of yet another witness
\nwho would have merely repeated the same story as has already been narrated
\nby other reliable witnesses would not cause any dent or infirmity in the
\nprosecution case. In the case at hand we additionally find from the
\ntestimony of Asharfi Lal that in spite of being a government servant and
\nnot involved in local village disputes he is afraid of deposing against the
\naccused persons and there is substance in the submission of the learned
\ncounsel for the State that Ram Autar if tendered in the witness box would
\nhave followed the same track as was chosen by Asharfi Lal, PW3.\n<\/p>\n
The Sessions Court as also the High Court have dealt with the testimony of
\neach of the witnesses examined in the case and chosen to place reliance on
\neye witness account of Shri Krishna and Ram pal holding that their
\ntestimony could safely be relied on for founding the verdict of guilt. We
\nfind no reason to take a different view. Thus, we agree with the High Court
\nand the Sessions Court in holding that in the occurrence Babu Ram and
\nDeshraj caused injuries on the person of deceased Mangali by lathis. We
\nalso agree with the finding arrived at that Ram Swamp and Raja Ram were
\narmed with guns and both of them fired shots at the deceased Mangali. One
\nof the shots hit Mangali causing a wound of entry and a wound of exit.\n<\/p>\n
It was submitted by the learned counsel for the appellants that the guns
\nseized from Ram Swamp and Raja Ram should have been sent for forensic
\nexamination by ballistic experts and the failure of the prosecution to do
\nso is another infirmity in the prosecution case. In this case the
\noccurrence had taken place on 14.3.1980. Accused Ram Swarup and Raja Ram
\nvoluntarily surrendered in the Court and were arrested on 25.3.1980 i.e.
\nafter a lapse of about 11 days. The guns are licensed guns of the two
\naccused persons Examination of guns by the ballistic expert after a lapse
\nof 11 days would not have made any material difference. It would have been
\ndifferent if any bullet or pellet would have been found and recovered
\neither from the body of Mangali or from the scene of occurrence in which
\ncase the ballistic expert would have been expected to conduct test-fires
\nand determine whether the bullet or pellet was fired from the seized guns
\nor any one of them. But that is not the case before us.\n<\/p>\n
We do not find the prosecution case suffering from any infirmity in so far
\nas the accuse appellants before us are concerned.\n<\/p>\n
What remains to be examined is the nature of offence committed by the
\naccused persons. The High Court has rejected the prosecution case to the
\nextent of participation of Dularey, the fifth accused. Thus, there was no
\nunlawful assembly and the question of holding any of the accused persons
\nguilty with the aid of Section 149 IPC does not arise. The High Court has
\nheld all the accused- appellants guilty of offence punishable under Section
\n302 read with Section 34 of the IPC. It has to be seen whether all the
\naccused persons can be attributed with common intention to cause the death
\nof Mangali.\n<\/p>\n
The prosecution case itself is that there was no prior meeting of the minds
\nof all the four accused- appellants. The villagers including the
\nprosecution witness and some of the accused persons were accompanying the
\nofficials of tubewell irrigation department for the purpose of surveying
\nthe irrigated fields and in this process they reached the field of accused
\nRam Swarup. Feelings mounted and verbal exchange got heated resulting in
\nwilding of weapons like lathis and guns at the spur of the moment.
\nVillagers in our country are routinely accompanied by lathis. The guns were
\nlicensed guns and it cannot be said that Ram Swarup and Raja Ram had
\ndeliberately taken the guns with them with the previous idea of utilizing
\nthe weapons in the unfortunate incident which was certainly not pre-
\nconceived and pre-meditated. The wielding of lathis by Babu Ram and Deshraj
\nis the earlier part of the incident. While Babu Ram and Deshraj inflicted
\nlathi blows. Mangali, the deceased also wielded his lathi though in his
\ndefence as stated by Shri Krishna, PW1 Mangali fell down. It was at a point
\nof time when Mangali was about to fall down or was falling down or had
\nalready fallen when Ram Swarup and Raja Ram fired. The exact position in
\nwhich the victim was when the guns were fired has not come in prosecution
\nevidence. However, what is certain is that Babu Ram and Deshraj have not
\ndealt any blow on the person of the deceased nor they are attributed with
\nany overt act after the guns were fired. According to PW1 and PW2 guns were
\nfired at a point of time when assault by lathis was over. The two guns by
\nthe two accused persons are said to have been fired almost simultaneously.
\nIn short so far as the assault by Babu Ram and Deshraj is concerned it had
\ncome to an end before the guns were fired; howsoever negligible may be the
\nintervening gap. There is no direct or circumstantial evidence available on
\nrecord for drawing an inference that Babu Ram and Deshraj could have, while
\nassaulting Mangali with lathis, anticipated that Ram Swarup and Raja Ram or
\nany one of them would fire at Mangali and fatally injure him. We cannot
\nhold Babu Ram and Deshraj accused-appellants sharing common intention with
\nRam Swarup and Raja Ram to cause the death of Mangali. They can be
\nattributed only with the intention of causing grievous hurt to Mangali. The
\ninjuries caused by them have results in fractures on the body of the
\ndeceased. The medical evidence is clear and specific. None of the lathi
\ninjuries either individually or collectively were enough to cause the death
\nof the victim.\n<\/p>\n
In Mahbub Shah v. Emperor, AIR (1945) PC 118, Sir Madhavan Nair so stated
\nthe law as to common intention, speaking for their Lordship of the Privy
\nCouncil:-\n<\/p>\n
“………the essence of that liability is to be found in the existence of
\na common intention animating the accuse leading to the doing of a criminal
\nact in furtherance of such intention. To invoke the aid of S.34
\nsuccessfully, it must be shown that the criminal act complained against was
\ndone by one of the accused persons in the furtherance of the common
\nintention of all, if this is shown, then liability for the crime may be
\nimposed on any one of the persons in the same manner as if the act were
\ndone by him alone. This being the principle, it is clear to their Lordships
\nthat common intention within the meaning of the section implies a
\nprearranged plan, and to convict the accused of an offence applying the
\nsection it should be proved that the criminal act was done in concert
\npursuant to the pre-arrange plan. As has been often observed, it is
\ndifficult if not impossible to procure direct evidence to prove the
\nintention of an individual, in most cases it has to be inferred from his
\nact or conduct or other relevant circumstances of the case.”\n<\/p>\n
Following the above said statement of law, this court held in Shankar Lal
\nv. State of Gujarat, [1965]1 SCR 287:-\n<\/p>\n
“The criminal act mentioned in S. 34 of the Indian Penal Code is the result
\nof the concerted action of more than one person, if the said result was
\nreached in furtherance of the common intention, each person is liable for
\nthe result as if he had done it himself.”\n<\/p>\n
Thus, it is clear that in order to hold an accused guilty of criminal act
\nby reference of Section 34 of the IPC the Court should be able to draw an
\ninference that the result reached was the consequence of the concerted
\naction of the person said to be held liable, recently, this Court has held
\nin Mithu Singh v. State of Punjab,<\/a> [2001] 4 SCC 193:-\n<\/p>\n
“Common intention has to be distinguished from same or similar intention.
\nIt is true that it is difficult, if not impossible, to collect and produce
\ndirect evidence in proof of the intention of the accuse and mostly an
\ninference as to intention shall have to be drawn from the acts or conduct
\nof the accused or other relevant circumstances, as available. An inference
\nas to common intention shall not be readily drawn, the culpable liability
\ncan arise only if such inference can drawn with a certain degree of
\nassurance.”\n<\/p>\n
Looking at the narration of incident by the eye witnesses it is difficult
\nto draw an inference that the act, which caused the death of the victim was
\nthe result of the concerted action of Babu Ram and Deshraj. They cannot be
\nattributed with sharing common intention to cause the death of Mangali with
\nRam Swarup and Raja Ram. Babu Ram and Deshraj can therefore be held liable
\nonly for offence punishable under Section 325 read with Section 34 of IPC.\n<\/p>\n
So far as Ram Swarup and Raja Ram are concerned both were there armed with
\nguns. Both have fired at the deceased Mangali and almost simultaneously.
\nShot by one of them has fatally hit the deceased. It is clear that both
\nshared the common intention of causing the death of Mangali. In Shankar
\nLal’ case (supra), it was held that if four accused with common intention
\nto kill someone were shooting at him they were certainly doing a criminal
\nact in furtherance of the common intention to kill him within the meaning
\nof Section 34. If such shooting results in the death of the persons aimed
\nat all are liable to be convicted under Section 302 read with Section 34 of
\nIPC. The trial Court and the High Court have not, therefore, erred in
\nholding the accused Ram Swarup and Raja Ram guilty under Section 302\/34
\nIPC.\n<\/p>\n
For the foregoing reasons, Criminal Appeal No. 256\/2001 filled by Ram
\nSwarup and Raja Ram is dismissed. Their conviction under Section 302 read
\nwith Section 34 IPC is maintained. They shall serve out the sentence as
\npassed by the Trial Court and upheld by the High Court.\n<\/p>\n
Criminal Appeal No. 255 of 2001 filed by Babu Ram and Deshraj is partly
\nallowed. The conviction of these accused\/appellants under Section 302\/34
\nIPC and the sentence of imprisonment for life passed on each of them is set
\naside. Instead they are held guilty of offence punishable under Section
\n325\/34 IPC. Each one of the accused is sentenced to undergo rigorous
\nimprisonment for a period of three years and also to pay a fine of Rs.
\n1,000 and in default of the payment of fine to undergo smile imprisonment
\nfor three months each. These two appellants were directed to be released on
\nbail .They shall surrender to their bail – bond to serve out the remaining
\npart of sentence subject to adjustment under Section 428 Cr. P.C.\n<\/p>\n
Criminal Appeal No. 255\/2001 partly allowed.\n<\/p>\n
Criminal Appeal No. 256\/2001 dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Babu Ram And Anr vs State Of U.P. And Ors on 1 August, 2002 Bench: R.C. Lahoti, Brijesh Kumar CASE NO.: Appeal (crl.) 255 of 2001 PETITIONER: BABU RAM AND ANR. RESPONDENT: STATE OF U.P. AND ORS. DATE OF JUDGMENT: 01\/08\/2002 BENCH: R.C. LAHOTI & BRIJESH KUMAR JUDGMENT: JUDGMENT 2002 Supp(1) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-125493","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBabu Ram And Anr vs State Of U.P. 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