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2009 Supreme(SC) 1028
2009(4) Supreme 332
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of U.P. — Appellant
versus
Atul Singh etc.etc. — Respondent
Criminal Appeal Nos. 1262-64 of 2004
Decided on : 08.05.2009
For the Appellant :Pramod Swarup, Sahdev Singh, Gunam Venkateswara Rao, Jatinder Kumar Bhatia, Advocates.
For the Respondent:Jaspal Singh, Sr. Adv., Imtiaz ahmed, Mrs. Naghma Imtiaz, V.N. Raghupathy (for M/s. Equity Lex Associates), S.K. Sinha, S.K. Dubey, K.B. Thakur, Advocates.
IMPORTANT POINT
Merely because the eye-witnesses are family members their evidence cannot per se be discarded.
Headnote:Indian Penal Code, 1860 – Section 302 r\w 34 – Prosecution of respondent accused persons three in number for causing death of deceased by firing at him by a country made pistol – Prosecution case that A1 fired at deceased and thereafter all accused persons escaped on a motorcycle – Conviction by Trial Court – Appeal – Allowed by High Court acquitting accused persons –Appeal – Held conclusions of High Court were based on surmises and conjectures and hypothesis – Mere non-mention of names of assailants or nature of weapon in inquest report, could not be a ground to discard the evidentiary value of PW1’s evidence, father of deceased who was eyewitness of incident – Merely because the eye-witnesses are family members their evidence cannot per se be discarded – So far as non-mention of name of PW1 who was accompanying the deceased to the hospital aspect was concerned, defence witness (DW1) Chief Pharmacist clearly stated in his cross examination that in case an injured is accompanied by several persons to the hospital, only one’s name is recorded who is most close to the injured – The presumptuous conclusion that merely because name of deceased’s mother was recorded in the medical records, PW1’s presence was ruled out held indefensible – Again categorical statement of PW1 that he did not go to Court because it was a Saturday and the lawyers were on strike for a particular reason – High Court’s conclusion that PW1 was expected to be at the place of practice on the face of this stand showed non application of mind – Evidence of PW1 being credible, cogent ,acquittal of A1 as recorded by High Court held unsustainable – So far as other two persons were concerned, High Court after analyzing evidence of PW1 had categorically held that Section 34 had no application – Since High Court rightly held that evidence was not sufficient to bring in application of Section 34 IPC – Hence while allowing appeal qua A1 appeal held liable to be dismissed for other two accused respondents. (Paras 8, 15 to 17)
Facts of the Case :
1. Respondent accused persons three in number were prosecuted herein in the instant case for causing death of deceased by firing at him by a country made pistol. As per prosecution case A1 fired at deceased and thereafter all accused persons escaped on a motorcycle. Trial Court convicted accused persons. Appeal thereagainst was allowed by High Court acquitting accused persons.
2. Present appeal has been filed against order of acquittal recorded by High Court.
Findings of the Court :
Held conclusions of High Court were based on surmises and conjectures and hypothesis. Mere non-mention of names of assailants or nature of weapon in inquest report, could not be a ground to discard the evidentiary value of PW1’s evidence, father of deceased who was eyewitness of incident. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. So far as non-mention of name of PW1 who was accompanying the deceased to the hospital aspect was concerned, defence witness (DW1) Chief Pharmacist clearly stated in his cross examination that in case an injured is accompanied by several persons to the hospital, only one’s name is recorded who is most close to the injured. The presumptuous conclusion that merely because name of deceased’s mother was recorded in the medical records, PW1’s presence was ruled out held indefensible. Again categorical statement of PW1 that he did not go to Court because it was a Saturday and the lawyers were on strike for a particular reason. High Court’s conclusion that PW1 was expected to be at the place of practice on the face of this stand showed non application of mind. Evidence of PW1 being credible, cogent ,acquittal of A1 as recorded by High Court was held unsustainable. So far as other two persons were concerned, High Court after analyzing evidence of PW1 had categorically held that Section 34 had no application. Since High Court rightly held that evidence was not sufficient to bring in application of Section 34 IPC. Hence while allowing appeal qua A1 appeal held liable to be dismissed for other two accused respondents.
Result : Ordered accordingly.
JUDGMENT
Dr. Arijit Pasayat, J.—
1. Challenge in these appeals is to the judgment of a Division Bench of the Allahabad High Court directing acquittal of the respondents. Respondent Sanjay Vishwakarma was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) whereas the other two accused persons were tried and convicted for the offence punishable under Section 302 read with Section 34 IPC.
2. Learned Additional Sessions Judge, Basti had convicted the respondents who preferred three separate appeals before the High Court. By the impugned judgment the High Court directed their acquittal.
3. Prosecution version in a nutshell is as follows:
On 21.11.1998 Radhey Shyam Pandey was at his house situated at Avas Vikas Colony District Basti and his son Ajay Kumar alias Pintu returned back home from the city and told him that a scuffle took place between him on one hand and Sanjay Vishwakarma, Atul Singh and Brij Kishore Singh alias Dimple on the other in front of A P N Degree College; and at that time he was accompanied by Vikas Singh and Sunil Kumar Verma and that his opponents were in search of him in order to kill him. Then Radhey Shyam Pandey along with his son Ajay Kumar alias Pintu accompanied by Vikas Singh and Sunil Kumar went from his house in order to make a complaint to the principal of APN Degree College. When they reached near the PCO in the pavement leading to the main road accused Sanjay Vishwakarma, Brij Kishore Singh alias Dimple and Atu1 Singh sighting Ajay Kumar exhorted that he should be killed. Thereupon, Ajay Kumar intended to run away by turning, but Sanjay Vishwakarma fired at him with country made pistol and on receiving firearm injury Ajay Kumar fell down and all the three miscreants ran away on the motor cycle parked nearby. At that very time one Dina Nath Pandey and Udai Shankar Shukla reached there and tried to catch hold of the miscreants but they succeeded in making their escape good. Immediately thereafter Radhey Shyam Pandey and his wife Smt Anirudh Kumari took their injured son Ajay Kumar in a Jeep to the District Hospital, Basti. But by the time they reached the Hospital, injured Ajay Kumar succumbed to fatal injuries ‘sustained by him in the said incident. Then Radhey Shyam Pandey, father of the deceased went to the Police station Basti Kotwali, District Basti and lodged an FIR of the occurrence with the Police there at about 12.30 p.m. The Police registered a crime against the accused under section 302 IPC and started the investigation. After completing the investigation the Police submitted charge sheet against the accused accordingly.
As accused pleaded innocence, trial was held.
Prosecution examined eleven witnesses to further its case. The respondents examined three witnesses to substantiate their claim of innocence. The trial court placed reliance on the evidence of Radhey Shyam Pandey (PW1) who was an eye witness and directed conviction. In appeal the High Court primarily relied on four circumstances to direct acquittal.
(1) The presence of Radhey Shyam Pandey (PW1) was not established. If he was really an eye witness then in the hospital records the name of his wife Anirudh Kumari could not have been shown as the persons who brought the deceased to the hospital. Being an advocate, he was expected to be at his place of practice and not at home.
(2) As he claimed that he was going to meet the principal at a distance of 1= K.M., he could not have needed a rickshaw for going to the college. Deceased was not a student of APN Degree College and therefore there was no question of making a grievance before the principal.
(3) The site plan did not show the place from where he allegedly saw the occurrence or the place from where the shot was allegedly fired.
(4) In the inquest report name of the accused, the nature of the weapon and the name of the assailants were not specifically mentioned. With these findings the direct acquittal was directed.
4. In s
