1. Armed attack resulting in murder and grievous injuries — Conviction under Sections 302, 302/149, 148, 324, and 326 IPC. (Para 1 , 3 )
Back
Next 
1993 Supreme(SC) 365
SUPREME COURT OF INDIA
A.S. Anand & N.P. Singh, JJ.
Kapildeo Singh & Ors.
Versus
State of Bihar
Criminal Appeal No. 540 of 1985
Decided on 7-4-1993.
Advocates appeared
Mr. Udai Narain Sinha, Sr. Adv. and M.P. Jha, Adv. with him for the Appellants.
Mr. D. Goburdhan, Adv. for the Respondent.
Appeal partly allowed.
Important Points
Statements recorded during investigation are inadmissible under Section 162 CrPC. Additionally, if the number of convicted persons is insufficient to constitute an unlawful assembly under Section 149 IPC, they may still be convicted for murder under Section 302 read with Section 34 IPC for common intention.
Subject
Criminal Law - Murder
Act Referred
Headnote
Criminal Procedure code - Section 162 - Arms Act - Section 27 – Indian Penal Code - Sections 302, 302/149, 148, 324 and 326 - Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 - Section 2 (a) – Offence of murder - Convicting and sentencing - Deceased was on enimical terms with Al and A2 and litigation was going on between the two parties. On the night intervening at about mid-night at village appellants along with A3, variously armed went to the house of the deceased and knocked at the door of the room in which he was sleeping - PW 13 the daughter of deceased along with her ailing child was also sleeping in same room - On hearing the knocking, she opened the door and found Al, A3 and A5 armed with pistols, A2 armed with a gun, A4 and A7 armed with a garasa each and A6 armed with a dagger present there As soon as she opened the door A2 fired from his gun at her causing an injury to her person - A4 hurled a grasa blow as a result of which two of her fingers of the left hand were chopped off - A6 - Held, conviction of A2, A3 and A4, for offence under Section 302/149 IPC to the one under Section 302/34 IPC and sentence A2 and A4 each to suffer imprisonment for life (A3 being already dead). We maintain the conviction of A2 for the offence under Section 27 of the Arms Act as also the sentence of two years R.I. imposed on him for the said offence - His conviction and sentence for an offence under Section 324 IPC as recorded by the High Court is also maintained - A4 has also been convicted for the offence under Section 326 IPC and sentenced to three years R.I. We maintain his conviction and sentence for the said offence. The conviction of Al, A2 and A4 for the offence under Section 148 is, however, set-aside. The sentence of imprisonment imposed on Al, A2 and A4 on different counts shall, however, run concurrently – Ordered Accordingly
Legal Category Hierarchy
Advocates:
D.GOVERDHAN CHARY, M.P.Jha, UDAI NARAIN SINHA
D.GOVERDHAN CHARY, M.P.Jha, UDAI NARAIN SINHA
Table of Contents
2. Admissibility of witness statements recorded during investigation — Reliability of prosecution witnesses given existing enmity and lack of independent corroboration. (Para 4 , 5 )
3. Reliability of injured witnesses — Necessity of corroboration for non-injured witnesses in cases of extreme enmity — Application of common intention over unlawful assembly. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 15 )
4. Statements recorded during investigation are inadmissible under Section 162 CrPC — Common intention under Section 34 IPC applies when unlawful assembly under Section 149 IPC is not established. (Para 4 , 15 )
5. Convictions of some appellants modified from Section 302/149 to Section 302/34 IPC; others acquitted due to lack of evidence. (Para 14 , 16 , 17 , 18 )
6. Is a statement recorded by a police officer during the investigation of a case admissible in evidence?
No, statements recorded during the investigation of a case are hit by Section 162 of the Code of Criminal Procedure and cannot be read in evidence. (Para 4 )
7. How does the court evaluate the testimony of an injured witness in criminal trials?
An injured witness is generally viewed as reliable because they are considered the last person to spare their real assailants or substitute them with innocent persons. (Para 7 )
8. When is Section 34 IPC applied instead of Section 149 IPC for a murder charge?
Section 34 IPC is applied when the requirements for an unlawful assembly under Section 149 are not met, but evidence establishes that the accused shared a common intention to commit the crime. (Para 15 )
Judgment
Anand, J.—This appeal under Section 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against the judgment and order of the High Court of Patna dated 27th March 1985 in Government Appeal No. 28 of 1979, convicting and senten-cing the appellants, Shatrugan Singh (Al), Kapildeo Singh (A2), Rampriya Yadav (A4), Brij Bihari Singh (A5), Ram Ekbal Singh (A 6) and Suresh Singh (A 7), (Awadesh Singh (A 3) died after the judgment of the High Court) for offences under Sections 302, 302/149, 148, 324 and 326 IPC, by reversing an order of acquittal recorded by the Additional Sessions Judge VI, Patna dated 28th April 1979.
2. While Al and A2 are brothers, A3 is the son of A2, A4 is a ploughman of Al, A5 is the son-in-law of A2, A 6 is the brother in-law of A3 and A7 is the son of A6.
3. The prosecution case in brief is that the deceased Shyamdeo Singh was on enimical terms with Al and A2 and litigation was going on between the two parties. On the night intervening 12/13 October 1977, at about mid-night at village Malia Gaura. the appellants along with Awadesh Singh A3, variously armed went to the house of the deceased and knocked at the door of the room in which he was sleeping. Rajmani Devi PW 13 the daughter of the deceased alongwith her ailing child was also sleeping in the same room. On hearing the knocking, she opened the door and found Al, A3 and A5 armed with pistols, A2 armed with a gun, A4 and A7 armed with a garasa each and A6 armed with a dagger present there As soon as she opened the door Kapildeo Singh A2 fired from his gun at her causing an injury to her person. Rampriya Yadav A4 hurled a grasa blow as a result of which two of her fingers of the left hand were chopped off. Ram Ekbal Singh A6, thereupon, told his companions to spare her and to kill her father, Shyamdec Singh, for which purpose they had come there. Rajmani Devi PW 13 was pushed aside by the accused who entered the room. When her father moved towards her, A 1 Shatrugan Singh opened fire at him with his pistol aiming it at his chest. Sbyamdeo Singh on receipt of the pistol shot fell down in the room and died. Ram Ekbal Singh A6 hurled a dagger blow on the deceased. After committing the crime, the accused party opened the entrance door and fied away. While they were retreating, some villagers who were coming towards the house of the deceased on hearing the noise were also attacked and in the process a gun shot injury was caused to Basant Sao PW 11. The villagers, thereafter, made arrangements for a cot to carry Rajmani Devi PW 13 to the Police Station and while going to the Police Station, they stopped at the house of the local Mukhia, Ram Nandan Singh PW 8, who also accompanied her to the Police Station Naubatpur. Basant Sao PW 11 was also brought to Naubatpur Police Station on a cot by his relations and villagers. On the basis of the statement of Rajmani Devi PW 13, FIR Ex. 7 was drawn up at the Police Station Naubatpur and a case was registered in the early hours of the morning of 13-10-1977. Investigation was immediately taken up by Parmeshwar Parshad Singh PW 15 and both the injured Rajmani Devi PW 13 and Basant Sao PW 11 were sent for treatment to Naubatpur Hospital where their injuries were examined by Dr. Ramesh Kumar Rai PW 14. Considering the serious nature of the injuries of Basant Sao PW 11, he was referred to Patna Medical College Hospital. The investigating officer Parmeshwar Prasad Singh PW 15 visited the place of occurrence and prepared the inquest report of the dead body of Shyamdeo Singh and sent the body for post-mortem examination. During the investigation, the investigating officer PW 15 seized blood stained earth from the place of occurrence. An empty cartridge was produced before the investigating officer by one Ram Rekha Singh. After Basant Sao PW 11 Teached PMCH for treatment, information was sent by the doctor to the local police of Pirbahore Police Station. ASI Ram Lakhan Jha of Pir
