Jharkhand High Court
Sohrai Yadav vs The State Of Bihar (Now Jharkhand) on 14 February, 2023
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.
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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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)
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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)
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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)
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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)
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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)
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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)
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(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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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)
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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.
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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
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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
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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
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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
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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
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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
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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
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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)
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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)
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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)
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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)
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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 [email protected] esa jgrs gSaA eSa Hkh ogha jgrk gw¡A jksM+ ua0 [email protected] esa
esjk iDdk edku gSA fd"kksjh ;kno rFkk Qsdw ;kno dk Hkh jksM ua0
[email protected] 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 [email protected] 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 [email protected] 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 [email protected] 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 [email protected] 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
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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&[email protected] 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)
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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)
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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)
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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)
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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)
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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)
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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)
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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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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)
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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
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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)
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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)
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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)
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‗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
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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)
With
- 60 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
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)
With
- 62 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
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
- 65 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
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)
With
- 66 - Cr. Appeal (D.B.) No. 141 of 1994 (R)
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)
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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)
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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.
