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SUPREME COURT OF INDIA
K. Jayachandra Reddy and G.N. Ray, JJ.
Criminal Appeal No. 62 of 1984
Decided On: 08.02.1994
Mata Prasad and Ors. Appellants
Vs.
State of U.P. Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Sushil Kumar, Sr. Adv. and R.P. Wadhwani, Adv.
For Respondents/Defendant: Pramod Swarup, R.C. Verma and A.S. Pundir, Advs.
Held, that although actual assault on the deceased had not been seen by the other two eye witnesses and P.W. 3 Muni Ram, is the only witness for such assault on the deceased, the evidence of Muni Ram, appears to be quite convincing and does not deserve to be discarded a sought to be contended by Mr. Sushil Kumar. P.Ws. 1 and 2 on receiving the information that the deceased was being assaulted by the accused persons rushed to the shop of Amrika and they could not see the deceased and the accused persons there but only on proceeding little further from the said shop, they could see some of the accused persons dragging the dead body and thereafter leaving it in the field of Samokhan. The place of occurrence and the time of occurrence as stated by P.W. 3, Muni Ram, is amply corroborated by the presence of blood stain in the shop and also trail of blood on the road and also by the very fact that the Mata Prasad got examined in the government hospital shortly after the incident and it has been admitted by Mata Prasad that there had been an incident in which the deceased was assaulted in a mar pit in which he also received, injuries. Although it was not admitted by him that he and his associates had assaulted the deceased but the factum of incident at the time stated by P.W. 3 stands admitted by Mata Prasad. It has been explained by P.W. 3 that why he was coming near the place of incident and such evidence does not deserve to be discarded. It is also the case of the accused that pistol was used at the time of occurrence. Hence, if the injuries were caused to Mata Prasad by pellets, such injuries do not appear to be inexplicable and a plausible explanation of such injuries as given by the High Court does not appear to be forceful or strained. The existence of enmity and bad relation between some of the accused and the deceased furnishes the motive for the said incident. Absence of independent witness and absence of corroboration of the assault by other independent witness require close scrutiny of the facts and circumstances of the case. In our view, the High Court has given cogent reasons as to why the prosecution case should be accepted. Excepting on the question of offence under Section 120 B, the High Court has upheld the conviction of the accused by concurring with the learned Sessions Judge. We do not find any reason to upset such concurrent findings. The deceased suffered multiple injuries on his person which resulted in his death immediately after the assault. Such injuries do not support any case for right to self defence. We, therefore, find no reason to take any contrary view. (Para 11)
JUDGMENT
Ray, J.
1. This appeal is directed against the judgment dated October 22, 1982 passed by the Lucknow Bench of the Allahabad High Court in Criminal Appeal Nos. 544 of 1976 and 545 of 1976 modifying the conviction and sentence passed by the learned Additional Sessions Judge, Gonda in Sessions Trial No. 222 of 1974. Nine accused persons including the six appellants in this appeal faced trial in the said sessions case on charges under Sections 120-B, 148, 302 read with Sections 149 and 147 IPC for murdering one Radhey Shyam on April 23, 1974. The learned Sessions Judge convicted accused 1, 5 and 6 namely, Amrika, Nauranglal and Raja Ram under Sections 120-B, 148, 302 read with Section 149 IPC and sentenced them to suffer two years rigorous imprisonment under Section 148 and the imprisonment for life under Section 302 read with Section 149 IPC. No separate sentence was, however, awarded under Section 120-B IPC. The learned Sessions Judge also convicted accused 3 Mata Prasad, accused 4 Bachcha Lal and accused 2 Ambar, under Sections 147, 302 read with Section 149 IPC and awarded sentence of one years rigorous imprisonment for the offence under Section 147 and life imprisonment under Section 302 read with Section 149 IPC. Accused 3 and 4 were also convicted under Section 120-B but no separate sentence was passed on that count. Accused 7 Kapil Deo, was also convicted under Sections 147, 120-B and 302 read with Section 149 IPC and one years rigorous imprisonment was awarded for the offence under Section 147 and imprisonment for life for the offence under Section 302 read with Section 149 IPC. No separate sentence was awarded under Section 120-B IPC. Accused 8 Kara Prasad and accused 1 Amrika were convicted only under Section 302 read with Section 149 IPC and the learned Sessions Judge awarded life imprisonment for the said offence. The said accused persons preferred two appeals before the Lucknow Bench of the Allahabad High Court being Criminal Appeal Nos. 544 of 1976 and 545 of 1976. Both the said appeals were heard analogously and were disposed of by a common judgment. Both the said criminal appeals were partly allowed. So far as accused 4 Bachcha Lal is concerned, the High Court set aside the conviction under Section 120-B IPC but upheld the conviction under Sections 147, 302 read with Section 149 IPC but on consideration of the facts that at the time of commission of the offence he was aged only 16 years, the High Court suspended the sentence by giving benefit of Section 30 of the U.P. Children Act and directed to furnish personal bond of Rs 5000 and two sureties of like amount -- one of such sureties to be furnished by an elder member of the family. The conviction under Section 120-B IPC was set aside in favour of all the appellants. In both the said appeals the conviction and sentence passed by the learned Sessions Judge against Mata Prasad, Naurang Lal, Amrika and Raja Ram under Sections 148, 302 read with Section 149 IPC were upheld by the High Court. Accused 8 Hara Prasad and accused 9 Babu Lal, were acquitted in view of setting aside the conviction and sentence under Section 120-B IPC. The conviction and sentence of accused 7 Kapil Deo, under Sections 147, 302 read with Section 149 IPC were upheld by the High Court. As aforesaid, the instant appeal has been preferred by accused 1, 2, 3, 5, 6 and 7, namely, Amrika, Amber, Mata Prasad, Naurang Lal, Raja Ram and Kapil Deo.
2. The prosecution case in short is that the appellants Amber and Amrika are real brothers and Naurang Lal is collateral of Amrika while Raja Ram is servant of Amrika and Kapil Deo was in the gang of Amrika because he used to borrow money from him. Mata Prasad and Bachcha Lal were cousins and they were also close to Amrika who was an influential man in the locality. Hara Prasad and Babu Lal were also the friends of Amrika. Amrika was a chaukidar of the Police Station, Kotwali, Gonda. The deceased, Radhey Shyam, had taken three bighas land in the village
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