2002 Supreme(SC) 938

2002(6) Supreme 496
SUPREME COURT OF INDIA
(From Allahabad High Court)
Doraiswamy Raju & H.K. Sema, JJ.
Mohar & Anr.  -Appellants
versus
State of U.P. -Respondent
Criminal Appeal No. 658 of 2000
With
Criminal Appeal No. 787 of 2000
Decided on 17-9-2002
Counsel for the Parties :
For the Appellants : Chandra Shekhar, Ashutosh Kumar, P.R. Chandra, Prabhat Pachuri, Advocate for Dr. S.K. Verma, Advocate.
For the Respondent : Praveen Swarup, Prashant Chaudhary, Advocate for Pramod Swarup, Advocate.

IMPORTANT POINT
The trial Court acquitted Mohar, Tikori (and Tapsi died later) on the benefit of doubt on tenuous ground. High Court was right in reversing their acquittal.

Headnote:Indian Penal Code, 1860-Sections 302 and 302/34 and 302, 323 read with 34-Murder of deceased Ram Awadh and Hansraj pursuant to a quarrel between children-Accused party of 4 attacked prosecution party with weapons-Prosecution party acting in self defence-Death of two-Complaint and counter complaint-Trial Court convicted one and acquitted others-High Court convicted all-One of them dying pending trial-Appeals by remaining 3-Whether on evidence and material on record Apex Court can take contrary view? (No)-Whether appellant Baljore s conviction needs alteration? (No)-Result-Both appeals dismissed.

       Held : FIR was lodged on 29.1.1977 itself and it is mentioned in the FIR that Tapsi attacked Jagarjit with lathi. It is noticed that FIR was lodged with no loss of time and, therefore, it cannot be said that since injured PW-4 was examined on 30.1.1977, it is manufactured by the prosecution subsequently. The High Court, on re-assessment of the entire evidence, has come to the conclusion that the presence of PW-4, at the place of incident is clearly established. The whole case, as already noticed, set up by the accused side, was rejected by the trial court as highly improbable and the said finding was confirmed by the High Court. Both the Trial Court and the High Court also found that the accused party was the aggressor. The High Court, also on re-appreciation of evidence, convicted Mohar and Tikori. It may be noticed that while acquitting the accused - Tikori, the Trial Court was of the view that P.W.1 - Ram Raj has not mentioned Tikori in his examination-in-chief, instead he mentioned one Kishori. However, P.W.-1, in his cross-examination denied the suggestion that he had not mentioned the name of Tikori in the FIR. He has also denied the suggestion that the name of the accused - Tikori was subsequently added. The other ocular evidence of P.Ws., namely, Vibhuti - PW-2, Balli - PW-3 and Jagdish - PW-4 have also specifically stated the name of accused - Tikori and they have not named any accused as Kishori. This apart, in the FIR, PW-1 - Ram Raj has specifically stated Tikori as one of the accused. So also the ocular evidence of PWs. 1, 2, 3 and 4 stated the presence of accused persons at the spot with arms and participation of accused Mohar in causing spear injuries to deceased - Hansraj. The benefit of doubt rendered by the Trial Court, in respect of accused - Mohar, Tikori and Tapsi (since deceased) runs straight to the teeth of ocular evidence. The High Court on appreciation of ocular evidence of PWs. 1, 2, 3 & 4 and materials on record has rightly come to the conclusion that the prosecution has been able to prove the presence and participation of the accused Mohar, Tikori and Tapsi (since deceased) beyond reasonable doubt. The Trial Court acquitted them on the benefit of doubt on tenuous ground. On perusal of the evidence and materials on record, we have no reason to take a contrary view than the view taken by the High Court. On right of private defence put up by the accused, as already noticed, the trial court on appreciation of the evidence particularly after considering Ext.K-17; FIR lodged on 29.1.1977; Ex. Kha-2 and FIR filed on 7.4.1977, has come to the conclusion that occurrence originated in front of the house of deceased Ram Awadh and found that the accused party was the aggressor and the prosecution witnesses acted in self defence. With regard to Criminal Appeal No. 787 of 2000, preferred by Baljore, learned counsel for the appellant fairly submits that there is concurrent finding of facts. The only contention of the counsel is that there is no intention on the part of the accused - Baljore to cause the death of the deceased and he submits that the conviction of the appellant under Section 302 IPC may be converted to the one under Section 304 Part I. On perusal of the evidence on record, we are of the view that this concession is not available to the appellant. For the aforestated reasons these appeals are devoid of merit and they are, accordingly, dismissed. (Paras 16 to 22)