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PETITIONER:

KAPILDEO SINGH AND ORS.

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT07/04/1993

BENCH:

ANAND, A.S. (J)

BENCH:

ANAND, A.S. (J)

SINGH N.P. (J)

CITATION:

1993 SCR (3) 1 1993 SCC Supl. (3) 372

JT 1993 (2) 646 1993 SCALE (2)500

ACT:

Indian Penal Code. 1860:

Sections 34, 148, 149, 302, 324 and 326-Murder- and causing

grievous injury-Common intention-Proof of--Conviction

altered to one u/s. 302 r/ws 34-Benefit of doubt-Acquittal

of certain accused.

HEADNOTE:

The appellants were charged with offences under Sections

302/ 149, 148,324 and 326 IPC-for causing the murder of one

IS' and for causing grievous Injury to one `R'. The Trial

Court acquitted them. On appeal by the State, the High

Court reversed the order of acquittal.. Aggrieved by the

High Court's judgment, the appellants preferred the present

appeal.

It was contended on behalf of the appellants that the

version of the occurrence given by PW II in his statement

recorded viz. Ex. P12 was materially different from the

statement of PW 13 recorded as FIR (Ex.7) and gave a lie to

the prosecution case rendering the prosecution case

doubtful; that the High Court erroneously ignored the

statement of PW 11 holding it inadmissible in evidence on

the ground that it had been recorded during the

investigation; and that due to the admitted enmity between

the parties and the hostility of the Mukhiya of the Gram

Panchayat towards Al and A2, it would not be safe to rely

upon the testimony of the prosecution witnesses without

looking for independent corroboration and in the absence of

which the conviction of the appellants was not justified.

Partly allowing the appeal, this Court,

HELD: 1. In view of the admitted enmity between the

parties and the close relationship of the witnesses inter-se

and the close relationship of the accused persons with one

another, the possibility that

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alongwith the actual assailants some others have also been

implicated cannot be ruled out. Prudence therefore requires

that this court should look for corroboration of the

testimony of PW 13 in respect of each of the accused before

finding them guilty. Since, the prosecution witnesses knew

each of the accused, the non-identification by any one of

them of A5, A6 and A7 renders the presence of these accused

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and their participation rather doubtful. It is not possible

to say with any amount of certainty that they were actually

involved in the commission of the crime along with the other

accused persons. Of course, PW 13 would not leave her own

assailants or the assailants of her father, but it is not

unknown that in view of the pronounced hostility between the

parties, the close relations of Al, A2, A3 and A4, namely,

accused A5, A6 and A7 may have also been roped in (8-H, 9-A-

C).

2. Though PW 10 and PW 12 did not recognize A4 as one of the

accused but the participation of A4, who according to PW 13

had given her the blow with the grass chopping off her two

ringers of the left hand, has been conclusively established.

The presence of A3, since deceased, is admitted by all the

prosecution witnesses. The testimony of PW 13, is

consistent a bout the participation of Al and A2 alongwith

A4 in the crime. Inspite of long thy cross-examination

nothing has been brought out to discredit her testimony in

so far as either the occurrence or the actual assault on her

and the deceased is concerned. The ocular testimony

regarding the participation of the accused in the crime as

well as the manner of assault and the nature of weapons used

by A 1, A2 and A4 for causing injuries has received ample

corroboration from the medical evidence and the recovery of

the blood stained clothes and earth from the place of

occurrence. The FIR lodged promptly by the injured

witnesses also lends enough assurance as regards the

participation of A 1, A2, A3 and A4 in the crime. Thus, the

prosecution has established the case against Al, A2, A3

(since dead) and A4, beyond any reasonable doubt (9-D-G)

3. Since, the presence of A5, A6 and A7 and their

participation in the crime is in doubt they are entitled to

the benefit of doubt and giving them the benefit of doubt,

their conviction and sentence are set aside and they are

acquitted. With their acquittal it is only the four

appellants Al, A2, A3 and A4 against whom the prosecution

can be said to have established its case beyond reasonable

doubt Section 148 IPC under the circumstances would have no

application. Similarly,

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Section 149 IPC would also not be attracted and A2, A3 and

A4 cannot be convicted under Section 302 with the aid of

Section 149 IPC. From the prosecution evidence, however, it

stands amply established that the three appellants, Al, A2

and A4 alongwith A3 (since dead) had come together armed

with deadly weapons to the house of the deceased and while A

I had fired pistol shot at the deceased resulting in his

death, A2 had fired from his gun at PW 13 causing her a

serious injury on her breast while A4 had caused her

grievous injuries with a grass resulting in the chopping off

two of her fingerson the left hand. The crime was committed

in the presence of A3. Therefore, while A2, A3 and A4

cannot he convicted for the offence under Section 302/149

IPC all of them can be said to have shared the common

intention with A 1 for committing the murder of the

deceased. The very fact that A 1, A2, A3 and A4 came

together armed with deadly weapons, at the night, to the

house of the deceased and caused deadly injuries to the

deceased and seriously wounded PW 13 and thereafter escaped

together would undoubtedly go to show that all of them

shared the common intention. They are, therefore, liable to

be convicted with the aid of section 34 IPC. (9-H, 10-A-F)

5. The evidence on record has established beyond any doubt

that A 1 committed the murder of the deceased by firing the

pistol shot. He has, therefore, rightly been convicted

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by the High Court for the offence under Section 302 IPC and

sentenced to suffer imprisonment for life. His conviction

for the offence under Section 27 of the Arms Act and the

sentence of two years R.I. is also justified. Hence, his

conviction and sentence on both counts is maintained.

However, the conviction of A2, A3. and A4, for the offence

under section 302/149 IPC is altered to the one under

Section 302/34 IPC. A2 and A4 are sentenced to suffer

imprisonment for life (A3 being already dead). The convic-

tion of Al, A2 and A4 for the offence under Section 148 is,

however, set aside. The conviction and sentence of the

appellants under S. 27 of the Arms Act and under Sections

324 and 326 IPC are maintained. The sentence of

imprisonment imposed on A 1, A2 and A4 on different counts

shall, however, run concurrently. (10-H, 11-A-C)

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JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 540 of

1985.

From the Judgment and Order dated 27.3.85 & 22.5.85 of the

Patna High Court in Govt. Appeal No. 28 of 1979.

Udai Narain Sinha and M.P. Jha for the Appellants.

D. Goburdhan for the Respondent.

The Judgment of the Court was delivered by

DR. ANAND, J. This appeal under Section 2(a) of the Supreme

Court (Enlargement of Criminal Appellate Jurisdiction) Act,

1970, is directed against the judgment and order of the High

Court of Patna dated 27th March, 1985 in Government Appeal

No. 28 of 1979, convicting and sentencing the appellants,

Shatrugan Singh (Al), Kapildeo Singh (A2), Rampriya Yadav

(A4), Brij Bihari Singh (A5), Ram Ekbal Singh (A6) and

Suresh Singh (A7), (Awadesh Singh (A3) died after the

judgment of the High Court) for offences under Sections 302,

302/149, 148, 324 and 326 IPC, by reversing an order of

acquittal recorded by the Additional Sessions Judge VI,

Patna dated 28th April 1979.

While Al and A2 are brothers, A3 is the son of A2, A4 is a

ploughman of A 1. A5 is the son-in-law of A2, A6 is the

brother-in-law of A3 and A7 is the son of A6.

The prosecution case in brief is that the deceased Shyamdeo

Singh was on enimical terms with A1 and A2 and litigation

was going on between the two parties. On the night

intervening 12/13 October 1977, at about mid-night at

village Malia Gaura, the appellants along with Awadesh Singh

A3, variously armed went to the house of the deceased and

knocked at the door of the room in which he was sleeping.

Rajmani Devi PW 13, the daughter of the deceased alongwith

her ailing child was also sleeping in the same room. On

hearing the knocking, she opened the door and found Al, A3

and A5 armed with pistols, A2 armed with a gun, A4 and A7

armed with a grasa each and A6 armed with a dagger present

there As soon as she opened the door

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Kapildeo Singh A2 fired from his gun at her causing an

injury to her person. Rampriya Yadav A4 hurled a grasa blow

as a result of which two of her fingers of the left hand

were chopped off. Ram Ekbal Singh A6, thereupon, told his

companions to spare her and to kill her father, Shyaindeo

Singh, for which purpose they had come there. Rajmani Devi

PW 1 3 was pushed aside by the accused who entered the room.

When her father moved towards her, A1 Shatrugan Singh opened

fire at him with his pistol aiming it at his chest.

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Shyamdeo Singh on receipt of the pistol shot fell down in

the room and died. Ram Ekabal Singh A6 hurled a dagger

below on the deceased. After committing the crime, the

accused party opened the entrance door and fled away. While

they were retreating, some villagers who were coming towards

the house of the deceased on hearing the noise were also

attacked and in the process a gun shot injury was caused to

Basant Sao PW II. The villagers, thereafter, made

arrangements for a cot to carry Rajmani Devi PW 1 3 to the

Police Station and while going to the Police Station, they

stopped at the house of the local Mukhiya, Ram Nandan Singh

PW 8, who also accompanied her to the Police Station

Naubatpur. Basant Sao PW 11 was also brought to Naubatpur

Police Station on a cot by his relations and villagers. On

the basis of the statement of Rajmani Devi PW13, FIR Ex. 7

was drawn up at the Police Station Naubatpur and a case was

registered in the early hours of the morning of 13.10.1977.

Investigation was immediately taken up by Pameshwar Parshad

Singh PW 15 and both the injured Rajmani Devi PW 13 and

Basant Sao PW 11 were sent for treatment to Naubatpur

Hospital where their injuries, were examined by Dr. Ramesh

Kumar Ran PW14. Considering the serious nature of the

injuries of Basant Sao PW II, he was referred to Patna

Medical College Hospital' The investigating officer

Parmeshwar Prasad Singh PW 15 visited the place of

occurrence and prepared the inquest report of the dead body

of Shyamdeo Singh and sent the body forpost-mortem

examination. During the investigation, the investigating

officer PW 1.5 seized blood stained earth from the place of

occurrence. An empty cartridge was produced before the

investigating officer by one Ram Rekha Singh. After Basant

Sao PW11 reached PMCH for treatment, information was sent by

the doctor to the local police of Pirbahore Police Station.

ASI Ram Lakhan Jha of Pirbahore Police Station went to the

hospital and recorded the statement of Basant Sao PW 11, Ex.

12 on 14.10.1977 at about 8 P.M., after Basant Sao PWI 1 had

regained consciousness. He sent the same to the officer-

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in-charge of Naubatpur Police Station.

Mr. Udai Sinha, learned senior advocate, appearing for the

appellants submitted that the version of the occurrence

given by Basant Sao PW 11 in his statement recorded at PMCH

by Ram Lakhan Jha DW1 (Ex. 12) was materially different from

the statement of Rajmani Devi PW 1 3 recorded as FIR Ex. 7

at Police Station Naubatpur and gave a lie to the

prosecution case rendering the prosecution case doubtful.

Learned counsel submitted that the High Court erroneously

ignored the statement of Basant Sao PW 11 holding it

inadmissible in evidence on the ground that it had been

recorded after the investigation in the instant case had

started on the FIR being lodged by Rajmani Devi PW 13.

According to the learned counsel, statement of Basant Sao,

Ex. 12 could not be said to have been recorded during the

investigation of the case and should not have been ruled out

of consideration. We cannot agree. In our opinion, the

High Court was justified in ignoring the statement of Basant

Sao, Ex. 12, as it admittedly was recorded during the

investigation of the case registered on the basis of FIR Ex.

7 and had been sent to the investigating officer PW 15 by

Ram Lakhan Jha DW 1. The statement was, therefore, hit by

Section 162Cr. P.C. and could not be read in evidence.

Even if be assumed for the sake of argument, though without

accepting it, that Ex. 12 was in the nature of an FIR lodged

by Basant Sao PWI 1, the same could not have been brought on

record as not only Basant Sao PW11 denied making any such

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statement, he was not even confronted with the alleged

statement Ex. 12 nor his signatures got proved on it. Ex.

12 could not, therefore, be read at all in evidence. The

trial court not only committed an error in bringing on

record Ex. 12 and reading it in evidence but also going

further and comparing it with FIR Ex. 7 lodged by Rajamani

Devi and finding discrepancies in the two documents.

Learned counsel then submitted that due to the admitted

enmity between the parties and the hostility of the Mukhiya

of the Gram Panchayat, PW8 towards A1 and A2, it would not

be safe to rely upon the testimony of the prosecution

witnesses without looking for independent corroboration and

since none was forth coming in the case, the conviction of

the appellants was not justified.

In view of the hostile relations between the parties and the

fact that all the accused are closely related to each other

and the prosecution

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witnesses are also closely related or connected with each

other, we have scrutinised the evidence on the record with

care.

Our independent and careful appraisal of the evidence on the

record has convinced us that the version given by the first

informant, PW13, about the occurrence in the first FIR Ex.

7, lodged almost within three hours of the occurrence, is a

truthful version of the manner in which she had received the

injuries as also how her father had been shot at and as to

who the assailants were. Rajmani Devi PW 13, is the.

injured person and as such she would be the last person to

spare her real assailants or the assailants of her father

and substitute the real assailants by innocent persons. She

was the first victim of the assault. Her statement in court

corroborates FIR Ex. 7 and the medical evidence and the

testimony of other witnesses lends sufficient corroboration

to her testimony. From the evidence on the record it is

established that Rajmani Devi PWI 3 was sleeping along with

her child in the same room as her father, deceased Shyamdeo

Singh, at the time of the occurrence. She knew all the

appellants and she had enough time to see them in the light

of the burning lantern. It is the consistent case of

prosecution witnesses PW9, PW 1 0 and PW 1 2 that a lantern

was burning in the room and the mere fact that the

investigating officer failed to take the lantern into

possession cannot render the testimony of these witnesses

doubtful.

Rajmani Devi PW13 attributed specific acts to Kapildeo Singh

A 1 and Rampriya Yadav A4 in so far as the injuries on her

own person were concerned and to Shatrugan Singh A1 in so

far as the fatal pistol shot on her father was concerned.

She, of course, deposed that the other accused persons

variously armed were also present at the time of occurrence.

Kunti Devi PW10, the sister of Rajmani Devi PWI 3, stated

that after hearing the sound of gun shot she woke up and

went into the room where her sister was sleeping with the

child. She then went on to say " I saw that the accused

Kapildeo Singh, Shatrugan Singh and Awadesh Singh were

coming out from the room of my father. Besides these other

people were also there but I could not recognize them due to

darkness. A lantern was hitting up in the room of my

father. I had recognised the aforesaid three accused

persons in the lantern light". This witness,

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therefore, recognized only Al, A2 and A3. though she knew

all the accused persons. Varat Devi PW 1 2, the sister-in-

law of the deceased, Shyamdeo Singh, who was also present in

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the house on the night of the occurrence and was sleeping in

another room with Kunti PW 1 0 and the wife of the deceased

deposed that at mid night she heard the shot of a gun and as

she got up and opened the door to go out, she saw some

persons coming out from Shyamdeo Singh's room. She went on

to say that "out of them, I recognized Kapildeo Singh,

Shatrugan Singh and Awadesh Singh. All the three accused

persons are present in the court". This witness also thus

recognized only three accused Al, A2 and A4, even though

according to the prosecution case, all the accused were

known to her.

Ram Nandan Singh PW8, who according to the prosecution case,

being the Mukhiya of the village went to the police station,

stated in his examination that he had told the police that

seven persons had their hand in the killing of the deceased

but admitted in the cross-examination that before the

police, he had named only two accused persons, namely,

Kapildeo Singh A2 and Shatrugan Singh A1 as the assailants.

Rajeshwar Singh PW5, a neighbour of the deceased, who woke

up on hearing the firing of the gun and went to the house of

the deceased stated that he had seen the deceased Shyamdeo

Singh lying an Rajmani Devi PWI3 sitting near the dead body

with injuries on her breast and fingers and that on his

inquiry from Rajmani Devi PW 1 3 as to what had happened was

told by her that Kapildeo Singh had caused her the injury by

his gun and that Rampriya Yadav had cut her fingers with a

grasa and that Shatrugan Singh had killed her father by the

shot of pistol. This witness has also, therefore, supported

PW13 about the manner of assault and the nomination of the

actual assailants.

From an analysis of the evidence referred to above, it is

clear that while Rajmani Devi PW 1 3 had named all the seven

accused, she had attributed specific acts only.to Kapildeo

Singh A2, Rampriya Yadav A4 and Shatrugan Singh A 1. Kunti

Devi PW10 and Varat Devi PW 12, on I their own showing had"

recognized only Kapildeo Singh A2, Shatrugan Singh Al and

Awadesh Singh Al. They did not recognize and other accused

persons even though they were known to them. PW5 also did

not state that Rajmani Devi PW13 had given to him the names

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of any other accused, when he had reached her house soon

after the occurrence. In view of the admitted enmity-

between the parties and the close relationship of the

witnesses inter-se and the close relationship of the accused

persons with one another, the possibility that alongwith the

actual assailants some other have also been implicated

cannot be ruled out. Prudence therefore requires that this

court should look for corroboration of the testimony of PWI3

in respect of each of the accused before finding them

guilty. Since, the prosecution witnesses referred to above

knew each of the accused, the non-identification by any one

of them of A5, A6 and A7 renders the presence of these

accused and their participation rather doubtful. It is not

possible to say with any amount of certainty that they were

actually involved in the commission of crime with the other

accused persons. Of course, PW 1 3 would not leave her own

assailants or the assailants of her father, but it is not

unknown that in view of the pronounced hostility between the

parties, the close relations of A 1, A2, A3 and A4, namely,

accused A5, A6 and A7 may have also been roped in.

Though PW 1 0 and PW 12 did not recognize Rampriya Yadav A4

as one of the accused but the participation of Rampriya

Yadav A4, who according to Rajmani Devi PWI3 had given her

the blow with the grasa chopping off her two fingers of the

left hand, in our opinion has been conclusively established.

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The presence of Awadesh Singh A3, since deceased, is

admitted by all the prosecution witnesses. The testimony of

Rajmani Devi PW 1 3, is consistent about the participation

of Shatrugan Singh Al and Kapildeo Singh A2 alongwith

Rampriya Yadav A4 in the crime. Inspite of lengthy cross-

examination nothing has been brought out to discredit her

testimony in so far as either the occurrence or the actual

assault on her and the deceased is concerned. The ocular

testimony regarding the participation of the accused in the

crime as well as the manner of assault and the nature of

weapons used by A1, A2 and A4 for causing injuries has

received ample corroboration from the medical evidence and

the recovery of the blood stained clothes and earth from the

place of occurrence. The FIR lodged by the injured

witnesses promptly also lends enough assurance as regards

the participation of A 1, A2, A3 and A4 in the crime. We

have, therefore, no hesitation to hold that the prosecution

has established the case against Shatrugan Singh A1,

Kapildeo Singh A2, Awadesh Singh A3 (since dead) and

Rampriya Yadav A4, beyond any reasonable doubt.

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This now takes us to the question of the nature of the

offence committed by the aforesaid four appellants. Since,

we have doubted the presence of A5, A6 and A7 and their

participation in the crime,they are entitled to the benefit

of doubt and giving them the benefit of doubt, we allow

their appeal and setting aside their conviction and sentence

acquit them.

With the acquittal of A5, A6 and A7, it is only the four

appellants Al, A2, A3 and A4 against whom the prosecution

can be said to have established its case beyond a reasonable

doubt. Section 148 IPC under the circumstances would have

no application. Similarly, Section 149 IPC would also not

be attracted and A2, A3 and A4 cannot be convicted under

Section 302 with the aid of Section 149 IPC. From the

prosecution evidence, however, it stands amply established

that the three appellants, Al, A2 and A4 alongwith A3 (since

dead) had come together armed with deadly weapons to the

house of the deceased Shyamdeo Singh and while Al Shatrugan

Singh had fired pistol shot at Shyamdeo Singh resulting in

his death, Kapildeo Singh A2 had fired from his gun at

Rajmani Devi PW 13, causing her a serious injury on her

breast while Rampriya Yadav A4 had caused her grievous

injuries with a grasa resulting in the chopping off two of

her fingers of the left hand. The crime was committed in

the presence of Awadesh Singh A3. Therefore, while A2, A3

and A4 cannot be convicted for the offence under Section

302/149 IPC all of them can be said to have shared the

common intention, with Shatrugan Singh Al, for committing

the murder of Shyamdeo Singh deceased. The very fact of Al,

A2, A3 and A4 came together armed with deadly weapons, at

the night, to the house of the deceased and cause deadly

injuries to the deceased and seriously wounded Rajmani Devi

PW 13 and thereafter escaped together would undoubtedly go

to show that all of them shared the common intention to

murder Shyamdeo Singh. They are, therefore, liable to be

convicted with the aid of Section 34 IPC and learned counsel

was unable to point out any impediment in the way of

convicting them with the aid of Section 34 IPC instead of

Section 149 IPC.

The evidence on the record has established beyond any doubt

that Shatrugan Singh A 1 committed the murder of Shyamdeo

Singh deceased by firing the pistol shot. He has,

therefore, rightly been

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convicted by the High Court for the offence under Section

302 IPC and sentenced to suffer imprisonment for life. His

conviction for the offence under Section 27 of the Arms Act

and the sentence of two years R. 1. is also justified. We,

maintain his conviction and sentence on both counts. We,

however, alter the conviction of Kapildeo Singh A2, Awadesh

Singh A3 and Rampriya Yadav A4, for the offence under

Section 302/149 lPC to the one under Section 302/34 IPC and

sentence A2 and A4 each to suffer imprisonment for life (A3

being already dead). We maintain the conviction of Kapildeo

Singh A2 for the offence under Section 27 of the Arms Act as

also the sentence of two years R.I. imposed on him for the

said offence. His conviction and sentence for an offence

under Section 324 IPC as recorded by the High Court is also

maintained. Rampriya Yadav A4 has also been convicted for

the offence under Section 326 IPC and sentenced to three

years R.I. We maintain his conviction and sentence for the

said offence. The conviction of A1, A2 and A4 for the

offence under Section 148 is, however, set aside. The

sentence of imprisonment imposed on Al, A2 and A4 on

different counts shall, however, run concurrently.

As a result of the above discussion, the appeal of Brij

Bihari Singh A5, Ram Ekbal Singh A6 and Suresh Singh A7 is

accepted and allowed. Their conviction and sentence, as

recorded by the High Court, are set aside. They are given

the benefit of the doubt and acquitted. They are on bail.

Their bail bonds shall stand discharged.

The appeal of Al. A2 and A4 except to the extent of the

modification of the judgment under appeal, as indicated

above, is dismissed. All the three appellants Shatrugan

Singh A1, Kapildeo Singh A2 and Rampriya Yadav A4 are on

bail. Their bail bonds shall stand cancelled. They shall

be taken into custody to under go the remaining period of

their sentence.

G.N. Appeal partly allowed.

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