1996 Supreme(SC) 869

1996(4) Supreme 108
SUPREME COURT OF INDIA
A.S. Anand and S.B. Majmudar, JJ.
Ram Sanjiwan Singh & Ors. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal Nos. 387-88 of 1985
Decided on 26-4-1996

IMPORTANT POINT
1. In an appeal by special leave against orders of conviction, the concurrent findings reached by courts below on evidence cannot be lightly brushed aside and unless it is shown that the findings are against the weight of evidence or are vitiated by any legal error, the Supreme Court does not interfere with them as a matter of course, especially when they are based on appreciation of evidence of eye witnesses found to be acceptable by both the courts below.
2. Imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence.

Headnote:(i) Constitution of India-Article 136-Special Leave to appeal-Scope-Concurrent findings-Power of Court to interfere.

       Held : The concurrent findings reached by both the courts below on evidence cannot be lightly brushed aside and unless it is shown that the findings are against the weight of evidence or are vitiated by any legal error, this Court does not interfere with them as a matter of course, especially when they are based on appreciation of evidence of eye witnesses found to be acceptable by both the courts below. (Para 7)

       (ii) Indian Penal Code, 1860-Sections 302/34 and 148-Arms Act -Sections 25(a) & 27-Convictions under-Appeals-Prosecution case rested on fardbeyan -Prompt recording of FIR-Eye witnesses-FIR fully corroborated eye-witness account-FIR indicated that an assault was mounted on deceased by accused-PW1 and PW3 were body guards of deceased-Their presence on spot was natural and probable-Presence of PW4 and PW5 nephew and grandson of deceased on spot established-Evidence of PW4 and PW5 fully corroborated eye witness account of PW1 and PW3-Prosecution had proved to the hilt its case against appellant Nos. 2, 5, 7-Their conviction legally sustainable-Accused 10 convicted under Section 304, Part I.

       Held : That the First Information Report was promptly registered at the police station hot on the heels of the happening of the incident on the evening of 24th may at Sakchi Bazar and that FIR reflected almost a contemporaneous account of what had taken place on spot. The recitals in this FIR clearly indicate that an assault was mounted on deceased Ramchandra Singh by accused including the present appellants Nos. 2 and 5 in Criminal Appeal No. 388 of 1985. It had also indicated one involvement of appellants in Criminal Appeal No. 387 of 1985 original accused No. 10 Ram Sanjiwan Singh who is said to have fired pistol shot in air to scare away the public. It is true that FIR did not mention presence of accused No. 6 Ganesh Gwala. But this circumstance which was heavily relied upon by the learned senior counsel for the appellants cannot advance the case of the accused any further for the simple reason that the FIR itself mentioned that there were two other persons whose names the first informant Sunil Singh did not know. This version of his in the fardbeyan was fully supported by him at the stage of trial and nothing substantial could be brought out in his cross examination to shake this version. Consequently it must he held that the FIR fully corroborated the eye-witness account deposed to by first informant Sunil Singh P.W.5 and other eye-witnesses. (Para 9)

       Further held : That P.W.1 Rameshwar Prasad and P.W.3 Gazraj Singh were the body guards of the deceased. Their presence on the spot was, therefore, quite natural and probable. It is unfortunate that though being body guards they could not save the deceased. (Para 10)

       Presence of P.W.5 Sunil Singh and P.W.4 Shankar Singh was also quite natural as the evidence shows that they were helping the deceased in looking after the shop. In fact nothing was alleged in the cross examination of these two witnesses to indicate that their presence on spot was unexpected or could not have been there. The evidence of P.W.4 Shankar Singh and P.W.5 Sunil Singh has also fully corroborated the eye-witness account of P.W.1 Rameshwar Prasad and P.W.3 Gazraj Singh and their evidence in turn has stood corroborated by the recitals in the FIR which has been found to reflect a prompt and almost contemporaneous recording of what had happened on spot on that fateful evening. We, therefore, find that on the aforesaid evidence of eye-witnesses the prosecution had proved to the hilt its case against the appellant No. 2 Moti Lal Tiwary accused No.1, appellant No. 5 Malkit Singh accused No. 4 and appellant No. 7 Ganesh Gwala accused No. 6. So far as appellant No. 1 accused No. 10 Ram Sanjiwan Singh is concerned on the eye-witness account which is found acceptable and reliable the prosecution had also established its case that the said accused had shared the common intention to do away with the deceased as he had shot in the air so that the people in the vicinity would be scared and may not come to the rescue of the deceased and he also could have been legitimately convicted under Section 302 read Section 34 along with his companions. However the learned Trial Judge thought it fit to convict him under Section 304, Part-I, IPC and the State appeal against acquittal of appellant No. 1 accused No. 10 Ram Sanjiwan Singh came to be dismissed by the High Court and against that part of the decision of the High Court there is no appeal before this Court by special leave. Therefore accused Ram Sanjiwan Singh s acquittal under Section 302 read with Section 34, IPC has come to stay and cannot be interfered with. (Para 11)

       (iii) Indian Penal Code, 1860-Sections 302/34 and 148-Convictions under-Appeals-Prompt FIR-Eye witnesses-Assault-Pre-planned -Victim was traced out and identified-Accused came armed with pistols and suddenly mounted an attack-Victim was sitting on chair, getting himself shaved-Deceased on account of attack died on spot-Convictions recorded legally sustainable. (Paras 12 & 18)

       (iv) Indian Penal Code, 1860-Sections 302/34 and 304-I-Acquittal for offence under Section 302/34-Conviction under Section 304-I-Sentence of RI for 7 years-Notice of enhancement of sentence-High Court enhanced his sentence to life imprisonment-Appeal against- Appellate Court not justified in interfering with discretionary order of sentence-Sentence of life imprisonment set aside-Sentence of 7 years RI restored.

       Held : So far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned as we have noted earlier his acquittal under Section 302, IPC read Section 34, IPC has stood confirmed. The learned Sessions Judge had imposed on him for that offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304, Part-I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the Trial Court was grossly inadequate. (Para 19)