2002 Supreme(SC) 600

2002(4) Supreme 330
SUPREME COURT OF INDIA
(From Patna High Court)
R.P. Sethi and Doraiswamy Raju, JJ.
Malhu Yadav & Ors. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1289 of 1999
Decided on 1-5-2002
Counsel for the Parties :
For the Appellants : Sushil Kumar, Sr. Advocate, Sanjay Jain and Anil Kumar Jha, Advocates.
For the Respondent : B.B. Singh and Kumar Rajesh Singh, Advocates.

IMPORTANT POINT
On carefully going through the findings recorded in the light of the materials on record the Apex Court held that the claim for total acquittal of 7 accused for causing death of one and assaults on two to save the thief of standing crops is not well founded. But the grievance to modify nature of offences to some extent cannot be said to be entirely devoid of merit. Appeal partly allowed as stated in last para of judgment.

Headnote:(i) Constitution of India-Article 136-Appeal by special leave-Concurrent findings of two courts as to manner of occurrence, plea of occurrence and method of inflicting injuries found substantiated against the accused by accepting the prosecution case-Whether needs interference within normal permissible limits of Article 136? (No)-Inferences drawn with reference to actual offences said to have been committed by 7 accused-Whether requires alteration, modification or interference? (Yes)-(See Paras 8 and 9).

       (ii) Indian Penal Code, 1860-Section 379-Punishment for theft-Accused No. 1 caught stealing standing crops by PW 10-PW 10 caught him and other accused and PWs came later-A1 was physically held by PW 10 till the end of occurrence and after occurrence was over, took away the uprooted crop-A1 is liable under Section 379 but for minimum and not the maximum sentence (Para 10)-Conviction and sentence of A1 under Section 37 IPC upheld. [Paras 18(a)].

       (iii) Indian Penal Code, 1860-Sections 302/149 or 304 Part I r/w 34-Nature of offence-A1 was caught stealing standing crop-On his cry A2 to A7 came-A1 was not released by deceased-On exhortion by A5, A4 and A3 gave blows with Bhala (a sharp weapon)-A2 and A5 gave lathi blows-Now A2 and A5 are dead-What offence A3 and A4 have committed? (Offence under Section 304 Part I r/w Section 34)-Their conviction under Section 302 r/w 149 modified with 10 years RI instead of life imprisonment [(Para 18(b)] (See Paras 13 and 14)-No case made out under Sections 147, 148, 149 IPC. [Paras 18(b) and (c)].

       Held : To the case on hand and facts found established, Section 304 Part-I only could be held to be attracted, since at best the case can be one where the accused might be said to have caused a bodily injury as is likely to cause death, with an intention to cause death. Therefore, there is every justification and necessity to alter the conviction recorded under Section 302/149, IPC, into one under Section 304 Part-I, read with Section 34 IPC, and that too so far as Accused Nos. 2, 3, 4 and 5 of whom A-2 and A-5 are already dead. In the absence of Section 149 there is no evidence to show that accused Nos. 6 and 7 shared any common intention to commit the offence of culpable homicide alongwith accused Nos. 2, 3, 4 and 5. To rope them in the commission of the offence, the prosecution attributed some overt acts to accused Nos. 6 and 7 which stand belied by the medical evidence. All the injuries found on the person of the deceased are attributable to accused Nos. 2, 3, 4 and 5 only. Accused Nos. 6 and 7 cannot be convicted even for the offence punishable under Section 304 Part I, I.P.C. So far as A-3 and A-4 are concerned, we are satisfied, on the facts and circumstances of the case, that the imposition of 10 years R.I. would sufficiently meet the requirements of justice and to this extent, the judgments of the courts below shall stand altered and modified. (Para 15)

       (iv) Indian Penal Code, 1860-Sections 324 and 323-Offences under-A6 convicted u/s 3 and 4 with sentence of RI 3 years and A7 convicted under Section 323 with RI for one year for assaulting father and father-in-law of deceased when they intervened in occurrence-Whether be upheld? (Yes).

       Held : The conviction under Section 324, IPC, of the A-2 and A-6 and of A-6 and A-7 under Section 323, IPC, alone remains to be considered. The conviction of A-2 under Section 324, IPC, was for the assault said to have been made by this accused on Laxmi Yadav, the father of the deceased, with Bhala on his right eye brow. Likewise, A-6 was also said to have attacked Laxmi Yadav with Farsa on his head as well as on both hands causing incised wounds. The conviction of A-5 and A-7 under Section 323 was for having assaulted Ram Kishan Yadav (PW-5), the father-in-law of the deceased, with lathi on his back. So far as this part of the conviction and sentence of one year R.I. under Section 323 is concerned, no interference is called for. A-5 also is no longer alive. Similarly, no infirmity in the conviction of A-2 and A-6 under Section 324, IPC, and the sentence of three years R.I. imposed therefor, could be substantiated before us, to call for our interference in this appeal. As noticed earlier, A-2 is not alive any longer. Consequently, the conviction of A-6 under Section 324 and A-7 under Section 323 and the sentence imposed therefor shall stand confirmed. (Para 17)

       (v) Indian Penal Code, 1860-Section 225-Resistance and obstruction to lawful apprehension of another person-A2 to A7 convicted under-Whether sustainable in law? (No).

       Held : The offence under Section 225, I.P.C, held proved against A-2 to A-7, cannot at all be said to have been substantiated. Though A-1 was found uprooting the crops in the land of the victim s family and caught in the action, the intention and resolve of those who detained him and the victim was not to release him till subjected to a Village Panchayat and it was not as though they were bent upon handing A-1 over to Police for further lawful custody or action. In the light of such evidence coming to light even from the prosecution case, a conviction under Section 225, merely because there was a demand to release him, is rendered impossible, all the more so when except a demand so made, nothing further was done in this direction to get him released. The conviction and sentence imposed under Section 225, IPC, therefore, shall stand set aside. (Para 16)

       Held finally regarding inference as to nature of offences committed by A1 to A7: The appeal shall stand partly allowed, with the resultant position as follows:

        (a) The conviction and sentence under Section 379 I.P.C. upon A-1 shall stand confirmed.

       (b) The conviction and sentence under Section 302 read with allied provisions stand modified into one under Section 304 Part-I, read with Section 34 IPC, with ten years R.I. in respect of A-3 and A-4, and they shall undergo the remaining part of the sentence, if any.

       (c) The conviction and sentence upon A-3, A-4, A-6 and A-7 under Section 147 or 148, as the case may be, shall stand set aside.

        (d) The conviction and sentence of three years R.I. imposed upon A-6 under Section 324 IPC, and of one year R.I. under Section 323, IPC, imposed upon A-7 shall stand confirmed.

        (e) The conviction and sentence under Section 225, IPC, of all the accused shall stand set aside

        (f) If any of the accused have already undergone the period of sentence, as modified under this judgment, they shall be immediately released unless required in any other case. The bail bond of A-3 (Shibu Yadav) shall stand cancelled and he be take into custody for undergoing the rest of the sentence, if any. (Para 18)