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SUPREME COURT OF INDIA
P.N. BHAGWATI AND R.S. SARKARIA JJ.
Tameshwar Sahi and others, Appellants
Versus
State of U.P., Respondent
Crminal Appeal No. 125 of 1971
Decided on 1-10-1975
Indian Penal Code,1860 – Sections 148, 302/149, 307 – Offence of Murder - Imprisonment for life – Further convicted for the attempted murder – Started removing tiles from the roof of the said house accompanied by the nine co-accused, all armed with spears came there. Sita Saran asked the deceased to stop the demolition of the house, asserting that he was its owner by virtue of the purchase from Janki – heated altercation ensued between the deceased and the accused – Deceased came down from the roof. A sharp exchange of abuse between the parties followed. Exhorting his companions to deal with the deceased, with the spear, while struck his spear dealt a spear blow to Chandrabali, interceded and asked the assailants to desist from the assault – Thereupon, Harihar alias Harender appellant gave a spear blow followed by another blow by one of the accused – While the appellants were striking blows on the victim, their companions continued to instigate them saying – On receiving these injuries, all the three victims fell to the ground – Assailants then ran away taking their weapons with them –Held, Nor do we find any substance in the contention that the story at the trial was materially changed from. that narrated – In the F.I.R. the parts played by each of the accused were not "particularized – It was not stated with specificity as to who belaboured whom – It was stated in a some what consolidated manner that all the ten accused surrounded the deceased and were seen plying their spears at them – Informant was the son – Obviously he had seen the occurrence, if at all, from a distance, had he ventured to go to the rescue of the victim, he could not have escaped unscathed – Moreover, when a crowd of assailants closes on a victim then the witnesses who see the incident from varying distances are not expected to give more than a general account of the incident – Only, , who had actually interceded to stop the assault on the deceased persons, and while so doing himself received injuries, could give such details with specificity, and he has done so in a natural, unexaggerated and forthright manner – There is no hard and fast rule that the evidence of a partisan cannot be acted upon, without corroboration – If his presence at the scene of occurrence cannot be doubted and his evidence is consistent with the surrounding circumstances and the probabilities of the case and strikes the court as true, it can be a good foundation for a conviction, more so if some assurance for it is available from the medical evidence – Order accordingly.
JUDGMENT
SARKARIA, J.:— Tameshwar Sahi (55), Ram Naresh (60), Harihar alias Harendra Nath Sahi (23), Jagdish Sahi (45), Dudhai alias Dudhnath Sahi (70), Garib alias Lal Bahadur Sahi (22), Jagat Sahi (40) Arjun Sahi (25) and Bhandari Ahir (45), Sita Ram Sahi (40), were tried by the Additional Sessions Judge, Gorakhpur for the murders of Chandrabali and Ram Adhar, and for allied offences. All the ten were convicted under Sec. 302 read with S. 149, Penal Code on two counts, and sentenced to imprisonment for life, each. They were further convicted for the attempted murder of Raj Ballabh (P.W.3) - Harihar under Sec. 307 and the rest under Ss. 307/149 - and each sentenced to 5 years rigorous imprisonment. A sentence of 3 years rigorous imprisonment was also imposed on each of them under Sec. 148, Penal Code. The sentences were directed to run concurrently.
2. On appeal, the High Court of Allahabad altered the conviction of Tameshwar Sahi and Ram Naresh to one under S. 302 read with S, 34, Penal Code but maintained their sentences of life imprisonment. Their convictions on the other counts were set aside, The conviction of the other eight under Ss,148, 302/149, Penal Code was also set aside. The conviction of Harihar under Section 307, Penal Code was upheld.
3. Tameshwar, Ram Naresh and Harihar have come in appeal to this Court by special leave.
4. The prosecution case as unfolded at the trial by P. W. 3, Raj Ballabh, is as follows:
5. One Janki owned a house in village Bairia-Dih. He executed an unregistered sale deed (Kha 10) in the year 1954 in favour of Sita Saran, the acquitted co-accused. After Janki s death, his son, Kedar, (P. W. 17) sold the same house to Chandraba1i deceased by a registered deed (Ka 22) in the year 1964.
6. On October 6, 1964, at about 9.30 a.m., the deceased persons, Chandrabali, and his son, Ram Adhar, started removing tiles from the roof of the said house. Sita Saran accompanied by the nine co-accused, all armed with spears came there. Sita Saran asked the deceased to stop the demolition of the house, asserting that he was its owner by virtue of the purchase from Janki. A heated altercation ensued between the deceased and the accused. The deceased came down from the roof. A sharp exchange of abuse between the parties followed. Exhorting his companions to deal with the deceased, Tameshwar hit Chandrabali with the spear, while Ram Naresh struck his spear on Ram Adhar. Ram Naresh dealt a spear blow to Chandrabali, also. Raj Ballabh. PW, interceded and asked the assailants to desist from the assault. Thereupon, Harihar alias Harender appellant gave a spear blow to Raj Ballabh, followed by another blow by one of the accused. While the appellants were striking blows on the victim, their companions continued to instigate them saying "Maro, Maro" On receiving these injuries, all the three victims fell to the ground. The assailants then ran away taking their weapons with them.
7. Apart from PW3 the occurrence was witnessed by Hargovind (CW 1), Chaturgun, Sardar Sahi, Sheoshankar, Sheo Mangal Yadav, Uppu and others who had come to the spot on hearing the altercation.
8. Chandrabali and Ram Adhar died at the spot. Raj Ballabh injured was removed to Barhalganj Hospital where he was examined by Dr. Paresh Chandra Chaudhury (PW 5) on the same day at 2-30 P.M. The Doctor found one punctured wound on the left side of his chest and another punctured wound on the outerside of his right thigh. The chest wound was grievous while the other was simple.
The First Information Report of this case was laid by Sheo Shankar (P.W.12) son of Raj Ballabh 61 (P.W. 3), at the Police Station Barhalganj, 7 miles away, at 1.45 p.m. the same day. It was recorded by Head-constable Girjesh Dutt as the Sub-Inspector was away.
9. At 2.45 P.M. Jagdish, the acquitted co-accused, also, lodged a report ( Ex kha 18) in the Police Station, complaining that Chandrabali and Ram Adhar deceased along with P. Ws. Raj Ballabh. Sheo Shankar, Mangal, Laxmi Shankar, M
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