2002 Supreme(SC) 971

2002(7) Supreme 105
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Doraiswamy Raju and Shivaraj V. Patil, JJ.
Sardul Singh -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 634 of 2001
With
Criminal Appeal No. 1191 of 2001
Decided on 27-9-2002
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar, K.B. Sinha, Sr. Advocate, Ajay Bhalla, Sanjay Jain, Adolf Mathew, Ashok Mathur, Ms. Kawaljit Kochar, S.C. Paul, C.L. Bashai, Ms. Kusum Chodhary, J.P. Dhanda, Ms. Raj Rani Dhanda and Sunder Khatri, Advocates.

IMPORTANT POINT
Although there is no alleged differential treatment or approach regarding appreciation of evidence of PW 8 (brother of deceased) regarding A1 and A3 s role in crime and both are found identified and fixed directly with reference to a positive and overt act viz. giving lathi blow on the head of deceased but they cannot be convicted for the offence u/s 302/34 IPC and instead, conviction of both the appellants is converted u/ss 325/34 IPC on the evidence of committing an assault and inflicting some injuries to cause hurt or grievous hurt but not to cause murder.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 148 and 149-Offences under-Five persons were charged for forming unlawful assembly for having caused the death of Naresh Kumar-Trial Court convicted A1 but acquitted others-In State s appeal, High Court reversed the acquittal of A3-Appeal against to Supreme Court-Whether identification of A3 and his overt act in the crime has been rightly judged by High Court on the evidence of PW 8 (brother of deceased)? (Yes)-Appreciation of evidence of PW 8.

       Held : It could be seen that the lathi blow said to have been given by A-3 also was before he ran to some distance and watched all the accused (referring to all of them generally) as they gave lathi blows and this identification claimed from their voices was really with reference to the general accusation against all in the later portion and not to be connected with reference to the blow said to have been given also by A3 on the head of the deceased, stated in positive and unmistakable words. There could be no differential treatment or approach in this regard between A1 and A3 in respect of their role and both are found identified and fixed directly with reference to a positive and overt act. So far as the High Court is concerned, it rightly took notice of the fact that PW-8 has mentioned the identity of A3 in the FIR as well as in court and that the evidence in this regard was consistent and inspired confidence of acceptance. Merely because the High Court proceeded to refer to some other material also, incorrect or irrelevant, it does not vitiate the positive finding otherwise justifiably recorded in the same manner and by adopting the same standard or process of reasoning as in respect of A1. The reasons assigned in the penultimate paragraph of the judgment of the High Court are relevant and vital, though wholly lost sight of by the Trial Court, and this omission not only necessitated but justified the approach and the conclusion arrived at by the High Court in respect of the guilt of A3. When the Trial Court was found to have wrongly read and thereby mis-appreciated the evidence and arrived at grossly unjust conclusions, the High Court was entitled to interfere in the appeal, to set right the manifest injustice resulting from the decision of the Trial Court and that is really what seem to have been done by the High Court in this case. Consequently, there is no scope for interfering with the finding recorded that A3 was also present on the spot and participated in the assault on the deceased on the fateful day along with A1. The medical opinion about the number and nature of injuries would lend further credence and corroboration to such participation by both A1 and A3. The High Court cannot be said to have committed any error or exceeded the parameters laid down for interfering with the verdict of acquittal recorded by the trial court in respect of A-3, having regard to the manifestly erroneous evaluation of the evidence in this regard by the trial court, resulting in grave injustice. (Paras 11 and 12)

       (ii) Indian Penal Code, 1860-Sections 302/34 or 325/34-Nature of offence-A1 and A3 causing death of deceased by lathi blows on his head-Common intention was to commit assault to take revenge-Conviction by Courts below under Sections 302/34 IPC-Whether needs modification? (Yes, under Sections 305/34 IPC)-Appeals allowed in part.

       Held : The next important question is as to what would be the nature of offence really committed, on the facts proved by the prosecution. The sticks said to have been used and recovered are of Popular tree , the wood of which was considered to be soft and light and stated to be usually used for manufacturing match sticks. While testifying on oath before Court, PW-8 has only stated that he and the deceased should not be allowed to go and not allowed to go alive or must be finished. This factor taken together with the nature of sticks used and the admitted rivalry on account of some elections would indicate that the accused meant at best, to give a sound thrashing to the victim. Since it was during night-time, some of the blows might have also landed on the vital portion of the head, even in the absence of any deliberate intention to kill and, therefore, be possibly inferred from the facts proved. The intention to cause death or cause such bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. Taken individually or even jointly together, if at all the common intention could have been merely to commit an assault and inflict some injuries but not to cause such injuries as would or is likely to cause or result in death. Therefore, A1 and A3 could not be condemned to have committed the murder, though that seems to have been the unintended ultimate result. On the facts proved, the accused could only be safely convicted under Section 325 IPC and not under Section 302 IPC. The plea that it would attract only punishment under Section 323 cannot be countenanced having regard to the grievous nature of the injuries sustained by the victim. These appeals, therefore, merit acceptance only in part, not for any clean acquittal, but for acquittal in respect of the offence under Section 302 IPC and instead, conviction of both the appellants under Section 325 IPC read with Section 34 IPC. Keeping in view the overall circumstances of the case, the age and lapse of time etc., a sentence of two years RI with a fine of Rs. 10,000/- each would be reasonable and sufficiently meet the ends of justice. Accordingly, the appellants (A1 and A3) shall stand convicted under Section 325 IPC read with Section 34 IPC and sentenced to undergo two years rigorous imprisonment and further pay a fine of Rs. 10,000/- each, in default whereof to undergo rigorous imprisonment for one year more. A1 shall undergo the remaining period of sentence if any and A3 shall be taken into custody to undergo the sentence imposed. The appeals shall stand partly allowed on the above terms. (Paras 13 and 14)