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SUPREME COURT OF INDIA
P.K. GOSWAMI AND V.D. TULZAPURKAR, JJ.
State of U.P., Appellant
Versus
Sughar Singh and others, Respondents.
Criminal appeal No. 273 of 1974
Decided on 8-12-1977.
Advocates appeared
Mr. D. P. Uniyal, Sr. Advocate (Mr. O. P. Rana, Advocate with him), for Appellant; Mr. S. N. Mulla, Sr. Advocate (M/s. K. Kapoor and Pramod Swarup Advocate with him), for Respondents.
Indian Penal Code – Section 147, 148, 379, 302 and 302 read with 149 – Offence of murder – Injury – First Information Report - Appeal preferred by accused was allowed by High Court and all of them were acquitted and Confirmation Reference was rejected - In allowing appeal and rejecting Confirmation Reference High Court came to conclusion that the prosecution had failed to establish its case against accused principally of three grounds that there was some delay in lodging First Information Report that two eye witnesses namely on whom learned trial Judge had relied were partisan witnesses and that version given by eye-witnesses did not tally with medical evidence - Having taken this view of prosecution evidence, High Court neither dealt with nor expressed its opinion on veracity or otherwise of plea of alibi put forward by accused evidence led in support thereof - State of U. P. has come up in appeal to this Court by special leave that was granted by this Court – Held, In view of above discussion we are clearly of the view that the Sessions Judge was right in coming to the conclusion that the prosecution had established its case against all the accused beyond reasonable doubt and the High Court was clearly in error in interfering with the convictions recorded by the learned Sessions Judge against each of accused-respondents. We accordingly allow the appeal, set aside the acquittal recorded by High Court and restore convictions recorded by Sessions Judge against each of the respondent-accused - As regard the sentence, however, we feel that having regard to considerable time that has elapsed since the date of occurrence and having regard to the fact that High Court’s decision of acquittal in their favor is being set aside by us extreme penalty of death ought not to be imposed upon respondents and instead, for the offence of murder of committed by them each one of them should be sentenced to life imprisonment. Subject to this modification in the sentence qua respondents 1 to 3 under S. 302, I.P.C. all other convictions recorded against all respondents-accused under various counts as well as the sentences imposed upon them by the learned Sessions Judge on those counts are restored – Then stated that in the absence of the above register he made an entry pertaining to the affidavit in question on loose papers and that even those loose paper had been misplaced. Lastly, the Sessions Judge has pointed out that even after the incident was over was possible for accused to reach Allahabad in four hours by on that day by a fast taxi. Having regard to these circumstances which emerged on record learned Sessions Judge, in our view, was right in rejecting defense case and in coming to the conclusion that the plea of alibi put forward by accused had not been established or rendered reasonably probable by him - High Court has not dealt with this plea at all - Appeal allowed
JUDGMENT
TULZAPURKAR, J.:— This appeal by special leave has been preferred by the State of Uttar Pradesh against the judgment and order of the Allahabad High Court dated October 31, 1973, in Confirmation Reference No. 25 of 1973 and Criminal Appeal No. 634 of 1973 and Criminal Appeal No. 634 of 1973, acquitting respondents 1 to 5 in respect of the offences said to have been committed by them under Ss. 147, 148, 379, 302 and 302 read with 149 of the I. P. C.
2. The prosecution case as revealed by the evidence led at the trial may briefly be stated as follows:
The deceased Uma Shanker and his father Mannu Lal (P. W. 1) as also all the five respondent-accused have been the residents of village Karmer, P. S. Orai. The deceased Uma Shanker, his father Mannu Lal (P. W. 1) and respondent-accused Ram Gopal (original accused No. 3) used to practise the profession of Purohit in villages Karmer, Bamhori and surrounding villages. It appears that there was professional rivalry between Uma Shanker and Mannu Lal on the one hand and Ram Gopal (A-3) on the other and for quite some time prior to the incident in question which took place on July 5, 1971, the villagers of Karmer had stopped engaging the services of Ram Gopal (A-3) for Purohiti work and entrusted the same to deceased Uma Shanker and his father Mannu Lal (P. W. 1) and, therefore, Ram Gopal (A-3) started bearing grudge and ill-will towards Uma Shanker and Mannu Lal. It further apears that there were two parties in the neighbouring village Bamhori, one of Moti Lal and the other of Om Prakash, the respondents-accused belonging to the party of Motilal while the deceased Uma Shanker to the party of Om Prakash. It may be stated that respondents Sughar Singh (original accused No. 1) and Man Singh (original accused No. 4) are real brothers while respondents Swami Din (original accused No. 2) and Dashrath Singh (original accused No. 5) are real brothers and these four in between themselves are cousin brothers. According to theprosecution on account of the professional rivalry as well as party factions the relations between the deceased Uma Shanker and his father Mannu Lal (P. W. 1) on the one hand and the respondents-accused on the other had become inimical. It appears that prior to the occurrence on July 5, 1971, there were proceedings underS. 107, Criminal P. C. between the two parties of Motilal and Om Prakash and Ram Gopal (A-3) had on December 2, 1970 lodged a complaint under S. 352, I. P. C. against Mannu Lal and others. According to the prosecution because of these incidents and the long-standing enmity between deceased Uma Shanker and the respondent-accused, the former always apprehended danger to his life and hence he used to carry with him a rifle, for which he held a licence, and a belt of cartridges. The incident giving rise to the prosecution of the respondents-accused occurred on July 5, 1971 at about 2.30 p.m. in village Karmer. On that day deceased Uma Shanker and his father Mannu Lal (P. W. 1) had gone to one Jagdish Lohar for reciting Satya Narain Katha at his place. After the function of reciting the Katha at Jagdish Lohars place was over both were returning home; Uma Shanker, who was carrying a Jholi (cloth bag) containing Sankh (Conch), Jhalar, Danda, Idol of Thakurjee with Singhasan, Kathabook, Coconut, Prasad etc. and also a rifle belt of cartridges on his shoulder, was walking ahead while Mannu Lal was walking 7 or 8 paces behind him; while they were proceeding from North to South by a lane, at about 2.30 p.m. Uma Shanker, who was walking ahead, reached a spot near Matan-ki Mathia (a temple). At that time, according to the prosecution, all the respondents-accused were lying in ambush, and Man Singh (A-4) and Dashrath Singh (A-5) suddenly appeared on the road from the temple side and exhorted the other accused to kill Uma Shanker by shouting "brothers, the enemy has come, kill him". Whereupon Sughar Singh (A-1), Swami Din (A-2) and Ram Gopal (A-3) stepped forward, the
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