{"id":196213,"date":"2010-01-06T00:00:00","date_gmt":"2010-01-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-anr-vs-state-of-u-p-on-6-january-2010"},"modified":"2016-07-23T23:06:28","modified_gmt":"2016-07-23T17:36:28","slug":"sunil-kumar-anr-vs-state-of-u-p-on-6-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-anr-vs-state-of-u-p-on-6-january-2010","title":{"rendered":"Sunil Kumar & Anr vs State Of U.P on 6 January, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sunil Kumar & Anr vs State Of U.P on 6 January, 2010<\/div>\n
Author: V Sirpurkar<\/div>\n
Bench: V.S. Sirpurkar*, Mukundakam Sharma<\/div>\n
                                                  Reportable\n\n                       IN THE SUPREME COURT OF INDIA\n\n                      CRIMINAL APPELLATE JURISDICTION\n\n                     CRIMINAL APPEAL NO. 1241 OF 2003\n\n\n\nSunil Kumar & Anr.                                             .... Appellants\n\n         Versus\n\nState of U.P.                                                  .... Respondent\n\n\n\n                                      WITH\n\n\n\n                     CRIMINAL APPEAL NO. 1242 OF 2003\n\n\n\nRam Singh                                                      .... Appellant\n\n         Versus\n\nState of U.P.                                                  .... Respondent\n\n\n\n                                J U D G M E N T\n<\/pre>\n
V.S. SIRPURKAR, J.\n<\/p>\n<\/p>\n
1.       This   judgment   will   dispose   of   two   appeals   being   Criminal <\/p>\n
Appeal No.1241 of 2003 and Criminal Appeal No. 1242 of 2003.  The <\/p>\n
High   Court’s   judgment   dismissing   the   appeal   and   confirming   the <\/p>\n
conviction   and   sentence   is   in   challenge   in   these   appeals   at   the <\/p>\n
instance   of   the   three   accused   persons,   namely,   accused   Sunil <\/p>\n
Kumar,   accused   Tilak   Singh   and   accused   Ram   Singh.     Originally, <\/p>\n
five   accused   persons   came   to   be   tried   for   committing   offences <\/p>\n
under Section 304 Part II read with Sections 147, 504 and 302 read <\/p>\n
with   Sections   149,   147   and   504,   IPC.     They   were   accused   Sunil <\/p>\n
Kumar,   accused  Jageshwar,   accused  Tilak   Singh,  accused   Ram  Singh <\/p>\n
and   accused   Munna.     All   the   accused   persons   were   charged   and <\/p>\n
convicted   for   the   offence   under   Section   304   Part   II   read   with <\/p>\n
Section   149   and   Section   147,   IPC   and   were   sentenced   to   suffer <\/p>\n
rigorous   imprisonment   for   four   years.     All   of   them   filed   appeal <\/p>\n
before the High Court.  However, the High Court convicted all the <\/p>\n
accused persons.\n<\/p>\n<\/p>\n
2.       Before   us   only   three   accused   persons   have   come   up   in <\/p>\n
appeal, they being accused Sunil Kumar and accused Tilak Singh (in <\/p>\n
Criminal   Appeal   No.   1241   of   2003)   and   accused   Ram   Singh   (in <\/p>\n
Criminal   Appeal   No.   1242   of   2003).     It   is   reported   that   accused <\/p>\n
Jageshwar and accused Munna are no more.   That is how we have to <\/p>\n
consider   the   case   only   of   three   appellants.     They   shall   be <\/p>\n
referred to as appellant Nos. 1, 2 and 3 respectively. <\/p>\n
3.       The prosecution case was that all the accused persons had <\/p>\n
on   23.02.1982   at   about   5   p.m.   in   Mohalla   Shivapuri   within   the <\/p>\n
limits of Police Station Orai, District Jalaun formed an unlawful <\/p>\n
assembly with the common object to commit the murder of Salim and <\/p>\n
inflict   injuries   on   the   person   of   Salim   causing   his   death.     The <\/p>\n
matter   was   reported   by   Hamid   Khan,   father   of   the   deceased <\/p>\n
immediately at 5.30 p.m.  It was contended therein that when Salim <\/p>\n
was working in his shop at about 5 p.m., the accused persons came <\/p>\n
to his shop and started asking Salim whether he considered himself <\/p>\n
to   be   a   great  gunda  since   he   was   showing   off   in   the   exhibition <\/p>\n
ground and thereafter started abusing him in filthy language.  On <\/p>\n
being objected by Salim, all the accused started beating him with <\/p>\n
lathis\/dandas  whereupon  Salim   fell  down.     The   complainant  raised <\/p>\n
an alarm hearing which witnesses Naeem, Mohd. Ilyas @ Naushe and <\/p>\n
several   other   persons   reached   the   spot.     Seeing   them,   accused <\/p>\n
persons fled away from the scene.\n<\/p>\n<\/p>\n
4.       Usual   investigations   followed   and   the   accused   came   to   be <\/p>\n
arrested  barely  within  2  or  3  days.    The  injured  Salim  was  sent <\/p>\n
for   Medical   examination   of   the   injuries   where   as   many   as   six <\/p>\n
contused   wounds   were   found   on   his   body.     Salim   had   become <\/p>\n
unconscious and, therefore, all the injuries could not be noted. <\/p>\n
Salim   was   thereafter   transferred   to   the   Medical   College,   Kanpur <\/p>\n
for   treatment   where   next   day   i.e.   on   24.02.1982   at   7.55   a.m.   he <\/p>\n
breathed his last. The information of death was sent to the Police <\/p>\n
Station, Swarup Nagar, Kanpur and an inquest was prepared of his <\/p>\n
body.     Photographs   were   taken   and   the   body   was   sent   for   post <\/p>\n
mortem examination.   Salim was hardly 22 years old.   In the post <\/p>\n
mortem examination, three injuries were found on his head and it <\/p>\n
was found that he had suffered a linear fracture of parietal bone <\/p>\n
on both sides extending from left ear to right ear.  Haemetoma was <\/p>\n
found in the brain and according to the doctors, death was due to <\/p>\n
coma   as   a   result   of   the   head   injuries   caused   by   blunt   weapons. <\/p>\n
The accused were charged for the offences under Sections 147, 304, <\/p>\n
323   and   504   IPC.     They   abjured   the   guilt.     Hamid   Khan   (PW-1), <\/p>\n
Mohd. Ilyas @ Naushe (PW-2) and Naeem (PW-3) were examined by the <\/p>\n
prosecution   as   eye-witnesses   along   with   others.     Their   evidence <\/p>\n
was   accepted   and   the   accused   persons   came   to   be   convicted   as <\/p>\n
stated   above.     Their   appeal   also   failed   and   that   is   how   the <\/p>\n
accused persons are before us.\n<\/p>\n<\/p>\n
5.       Mr.  Amarendra  Sharan,  learned  Senior  Counsel  who  appeared <\/p>\n
in   both   the   appeals   attacked   the   judgment   of   the   High   Court   and <\/p>\n
the Trial Court firstly, contending that there was absolutely no <\/p>\n
reason   for   the   accused   persons   to   assault   the   deceased   and   no <\/p>\n
motive has been attributed to all these accused persons.  Learned <\/p>\n
Counsel suggested that basically the story of the prosecution in <\/p>\n
the absence of any apparent motive became extremely doubtful.<\/p>\n
6.       We are not impressed by this submission since motive in a <\/p>\n
criminal case is irrelevant where evidence of the eye-witnesses is <\/p>\n
available.     In   this   case,   there   were   as   many   as   three   eye-<\/p>\n
witnesses one of whom was the father of the deceased.  Therefore, <\/p>\n
the   question   of   absence   of   motive   would   have   no   importance <\/p>\n
whatsoever.\n<\/p>\n<\/p>\n
7.       Learned   Senior   Counsel   then   took   us   extensively   through <\/p>\n
the   evidence   of   three   eye-witnesses   and   pointed   out   that   the <\/p>\n
evidence of the father would be that of an interested witness and <\/p>\n
there was no possibility of the two other witnesses, namely, Mohd. <\/p>\n
Ilyas @ Naushe (PW-2) and Naeem (PW-3) being the eye-witnesses as <\/p>\n
according to the Counsel, they were busy in their own shops.  But <\/p>\n
it has clearly come in the evidence that the father was very much <\/p>\n
present at the shop while the shop of Mohd. Ilyas @ Naushe (PW-2) <\/p>\n
is just by the side of the shop of the deceased.  It has also come <\/p>\n
in  the  evidence  that  the  shop  of  Naeem  (PW-3)  is  about  20  yards <\/p>\n
from   the   shop   of   the   deceased   which   is   a   tractor   repairing <\/p>\n
workshop.   Considering  this   position  and   also  considering   that  it <\/p>\n
was 5 O’clock in the evening, there is no possibility of the shop <\/p>\n
remaining   closed   and   under   these   circumstances,   the   presence   of <\/p>\n
the   eye-witnesses   would   be   most   natural.     Therefore,   on   that <\/p>\n
count,   the   evidence   cannot   be   discarded.     It   was   also   suggested <\/p>\n
that the day on which the occurrence took place was Tuesday and as <\/p>\n
such the market remained closed. The shops of the deceased as also <\/p>\n
the eye-witnesses were not big shops and they were in the nature <\/p>\n
of small workshops where welding and electric work etc. was going <\/p>\n
on.     Under   such   circumstances,   it   is   not   possible   to   hold   that <\/p>\n
such small shops also remained closed on Tuesday.   Again, in the <\/p>\n
wake of the direct evidence of the witnesses, we cannot accept the <\/p>\n
contention that the shops were not there.  All the three witnesses <\/p>\n
have very specifically deposed about the presence of the accused <\/p>\n
persons.     They   have   also   deposed   about   the   individual   acts   in <\/p>\n
assaulting the deceased Salim on his head.   There is very little <\/p>\n
cross-examination   on   the   actual   occurrence.   We   have   seen   the <\/p>\n
evidence   and   found   that   the   evidence   given   by   these   witnesses <\/p>\n
could not be shaken even in the cross-examination.<\/p>\n
8.       It was suggested further that PW-1, Hamid Khan had in his <\/p>\n
evidence admitted that he did not pay any tax to the municipality <\/p>\n
and there was no permit which would mean that there was no shop as <\/p>\n
such.   Now, merely because the permit was not there, it does not <\/p>\n
mean that the deceased was not doing the gas welding work in his <\/p>\n
shop.     In   fact,   all   the   witnesses   have   unanimously   stated   about <\/p>\n
the   shop   being   there   and   the   deceased   being   assaulted.     Much   of <\/p>\n
the   cross-examination   was   redundant   of   this   witness   as   also   the <\/p>\n
other   witnesses.     Same   is   the   story   of   evidence   regarding   Mohd. <\/p>\n
Ilyas @ Naushe (PW-2). There appears to be some cross-examination <\/p>\n
as   regards   the   identification   particularly   of   Mohd.   Ilyas   @ <\/p>\n
Naushe.   However, this witness had actually identified all these <\/p>\n
accused   persons   since   they   all   knew   the   deceased   as   also   the <\/p>\n
accused persons.\n<\/p>\n<\/p>\n
9.       The Trial Court as well as the High Court have considered <\/p>\n
the evidence closely and we do not think that there is any error <\/p>\n
in the appreciation.\n<\/p>\n<\/p>\n
10.      Lastly,   it   was   stated   by   the   learned   senior   Counsel   that <\/p>\n
the offence would not be under Section 304 Part II, IPC.   At the <\/p>\n
most it could be under Section 325 or 326, IPC.   We do not think <\/p>\n
that we can accept this argument.  In fact, seeing the seriousness <\/p>\n
of the wounds, injuries on the head including the fracture on the <\/p>\n
head, we wonder as to how the accused were charged of the offence <\/p>\n
under Section 304, IPC.  It was absolutely incorrect.  They should <\/p>\n
have been charged under Section 302, IPC.  However, in the absence <\/p>\n
of the appeal by the State, we would not be in a position to do <\/p>\n
anything   in   that   behalf.     Learned   Counsel   also   suggested   that <\/p>\n
considering   that   this   incident   had   taken   place   in   the   year   1982 <\/p>\n
and   sentence   of   four   years   would   be   harsh   punishment.   We   do   not <\/p>\n
think so.  In fact, the punishment is on the lenient side.  After <\/p>\n
all, one young life was lost at the young age of 22 years.  While <\/p>\n
considering   the   sentence,   merely   because   the   appeal   pended   and <\/p>\n
merely because the incident had taken place long back would not by <\/p>\n
itself justify any interference with the punishment, particularly, <\/p>\n
when the punishment itself is a lenient one.\n<\/p>\n<\/p>\n
11.      In   that   view,   both   the   appeals   are   dismissed   as   being <\/p>\n
without   any   merit.     The   accused   persons,   who   are   on   bail,   shall <\/p>\n
immediately surrender within 15 days failing which immediate steps <\/p>\n
including issuance of non-bailable warrant shall be taken. <\/p>\n
                                                                 ……………………………..J.\n<\/p>\n
                                                           (V.S. Sirpurkar)<\/p>\n
                                                                 ……………………………..J.\n<\/p>\n
                                                    (Dr. Mukundakam Sharma)
\nNew Delhi;\n<\/p>\n
\nJanuary 6, 2010<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sunil Kumar & Anr vs State Of U.P on 6 January, 2010 Author: V Sirpurkar Bench: V.S. Sirpurkar*, Mukundakam Sharma 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 […]<\/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-196213","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSunil Kumar & Anr vs State Of U.P on 6 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sunil-kumar-anr-vs-state-of-u-p-on-6-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sunil Kumar & Anr vs State Of U.P on 6 January, 2010 - 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