Important point
Prosecution evidence has to be weighed and not to be counted and it is just because any other resident of vicinity has not be cited as witness will be no ground to throw away the otherwise reliable testimony of witnesses which is natural and inspired confidence.

Headnote:Indian Penal Code, 1860—Section 302/34—Conviction of four accused for murder with help of Section 34 IPC—All four accused armed with single barred gun, double barrel gun and two others with country made pistol intercepted deceased who was coming from bus-stand with PW1, his father and PW2—A2 and A3 each then fired shots on deceased who died on spot—A2 and A3 died during pendency of appeal before High Court—Conviction of A1 and A4 was set aside by High Court—State Appeal—Testimony of two eye-witnesses despite long cross-examination was not discredited and it stood corroborated by medical evidence—Mere because that place of occurrence was pucca road and incident occurred at 5.15 p.m., no pedestrian or other witness was joined by police, testimony of PW1 a PW2 which was otherwise creditworthy could not be thrown—Findings recorded by High Court were contrary to evidence on record, based on surmises and conjectures—Common intention was to be inferred from acts and conduct of accused—Convicted accused could not be said to have accompanied other accused as an idle curiosity—Conviction recorded by trial Court was liable to be restored.
       Held : One of the grounds, on which the High Court, recorded acquittal of the accused was that the occurrence is stated to have taken place on a pucca road on which bullock-carts, buses and other vehicles also go. The time is also of 5.15 p.m. but no outsider or pedestrain or resident of the vicinity has been named in the FIR or in the statement of the witnesses but only P.W. 2-Hemraj has been examined as an independent witness. This ground, taken by the High Court, is far-fetched and contrary to the testimony of eyewitnesses. This can be hardly a ground to disbelieve the otherwise creditworthy testimony, which inspired confidence. It is now well-settled principle of law that whom to cite as a witness and whom not is within the domain of the prosecution. It is also well settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because any other pedestrian or resident of the vicinity has not been cited as witnesses will be no ground to throw away the otherwise reliable testimony of the eyewitnesses which is natural and inspires confidence. There is no evidence on record to show that there were other pedestrian or resident of the vicinity present at the relevant time, besides the prosecution witnesses. In our view, the aforesaid reason by the High Court is based on conjectures and surmises and is perverse. (Para 11)
       We notice with dismay the findings recorded by the High Court, which are contrary to the evidence on record, based on surmises and conjectures. The way the High Court appreciated the prosecution evidence is in the form of cross-examination of the prosecution witnesses. The evidence must be read and appreciated as it is. Nothing can be read to the evidence. The High Court has also recorded as under:-
       “All the two witnesses examined in the case are chance witnesses. They are inimical and interested witnesses. Their presence on the spot is highly doubtful. It is apparent that they did not see the occurrence and had named the accused persons out of animosity.”
       We are unable to discern the reasoning of the High Court. Both the eyewitnesses had stated that they travelled together with the deceased and were coming back together with the deceased from Bareilly where the incident had taken place and narrated the entire story as aforesaid. The High Court has recorded their presence on the spot doubtful without assigning any reason. The High Court was also of the view that they did not see the occurrence and had named the accused persons out of animosity without assigning any reason. (Paras 14 and 15)
       In the present case, the conviction recorded by the Trial Court was under Section 302 with the aid of Section 34. The two accused armed with country made pistols accompanied the other accused armed with SBBL gun and DBBL gun respectively went to the place of occurrence, way laid the deceased and party and attacked the deceased. It cannot be said that they accompanied the other accused as an idle curiosity. The aforesaid circumstances, would clearly infer the intention of the present two accused for committing an offence in furtherance of common intention. Their conviction under Section 302 with the aid of Section 34 cannot be said to be unjustified. (Para 17)

Judgment

H.K. Sema, J.—Four accused, A-1 Ganga Ram, A-2 Raghubir, A-3 Lal Singh and A-4 Rajendra Singh were put to trial before the Trial Court for the murder of deceased-Tula Ram under Section 302/34 IPC. The Trial Court convicted all of them under Section 302 read with Section 34 IPC and sentenced them to rigorous imprisonment for life. On appeal, the High Court acquitted all of them. Hence, this appeal by special leave by the State of U.P.

2. During the pendency of the appeal, A-2- Raghubir and A3-Lal Singh expired. The appeal against them already stands abated. This appeal, therefore, is survived qua A.1-Ganga Ram and A.4-Rajendra Singh. It may be noted that A.1-Ganga Ram and A.2-Raghubir are real brothers and A.3- Lal Singh and A.4-Rejendra Singh are real brothers.

3. Facts may be noted briefly:-

P.W.3-Rajendra Singh filed a complaint case against the accused persons Rajendra Singh and Lal Singh in the Court of Special Judicial Magistrate, Bareilly, in which the deceased-Tula Ram was cited as one of the witnesses. On 27.7.1978, the deceased-Tula Ram had gone to depose in the said complaint case against the accused Rajendra Singh and Lal Singh. It is alleged that the accused persons had threatened on several occasions not to appear as a witness but deceased-Tula Ram was determined to give statement. On 27.7.1978 at about 5.15 p.m. when the informant PW-1 Dhakan Lal (father of the deceased), P.W.2-Hemraj, the deceased-Tula Ram were coming back to their village from the bus-adda, Meerganj, the informant and others stopped at the Meerganj Sindhauli road in the jungle of Kalyanpur to smoke bidi. The deceased-Tula Ram went about fifty-sixty steps ahead of them. Accused Raghubir armed with single barrel gun (SBBL gun), accused-Lal Singh armed with double barrel gun (DBBL gun), accused - Ganga Ram and accused-Rajendra Singh armed with Tamancha (country made pistol) emerged from behind the stones heaped at the road. Accused Lal Singh told the deceased-Tula Ram that he had been warned not to appear as a witness but he was adamant and therefore he should not be left and should be killed. Thereupon Raghubir and Lal Singh made one fire each at Tula Ram with their respective weapons. Tula Ram fell down on the road. When the informant and others raised an alarm, the accused persons ran away towards west. P.W.1-Dhakan Lal left behind P.W.2-Hemraj near the dead body and he got the FIR written by P.W.3-Rajendra Singh and lodged the FIR at police station, Meerganj. A case was registered under the aforesaid Sections of Law and after the completion of the trial; the Trial Court recorded the conviction as above.

4. P.W.4-Dr. I.S. Tomar, conducted the autopsy on the dead body and prepared the postmortem report (Ex.Ka.-3). He found the following antimortem injuries on the dead body of the deceased.

“1. 9 gunshot wounds on the right side of chest in an area of 14 cm x 8 cm. 2 cm below the right nipple and were extarded upto the lower part of the central bone of the chest. Each wound was 0.8 cm x 0.8 cm x chest deep in size and the edges of the wounds were parted and turned inverted. There was no blackening and burning around the wounds. The direction of the wounds was from right to left and to backside.

2. Scratch 2 cm x .5 cm on the left side of chest below the collar bone.

3. Internal examination.

1. The fourth, fifth and sixth step bone on the right side was fractured due to injury

2. Both lungs and the membranes above them were punctured in the middle.

3. The membrane above the heart was punctured through and through in the right side of heart.

4. There was about 1 litre blood on each side in the chest.

5. There was about 600 cc blood in the perlineal cavity and it was punctured at one place on the upper side.

6. Liver was punctured from one to the other and 15 ounce of half digested food was there.

7. Liver left part was punctured through and through.

4. In my opinion the death occurred due to shock and hemorrhage due to injuries.

5 Large bullets were extrac

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Judicial Analysis

SupremeToday

2005 Supreme(SC) 1393

Important pointProsecution evidence has to be weighed and not to be counted and it is just because any other resident of vicinity has not be cited as witness will be no ground to throw away the otherwise reliable testimony of witnesses which is natural and inspired confidence.

Cases Referred (1)

Judicial Analysis

Important point
Prosecution evidence has to be weighed and not to be counted and it is just because any other resident of vicinity has not be cited as witness will be no ground to throw away the otherwise reliable testimony of witnesses which is natural and inspired confidence.