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2009 Supreme(SC) 1176
2009(5) Supreme 716
SUPREME COURT OF INDIA
(From Allahabad High Court)
V.S. Sirpurkar and R.M. Lodha, JJ.
Abid — Appellant
versus
State of U.P. — Respondent
Criminal Appeal No. 785 of 2004
Decided on : 07-07-2009
For the Appellant :Shakil Ahmed Syed, Advocate.
For the Respondent:Prashant Chaudhary, Bharat Ram, Praveen Swarup, Advocates.
IMPORTANT POINT
It may not always be possible for the eye witnesses to attribute specific injuries to each accused.
Headnote:(a) Indian Evidence Act, 1872 – Section 3 – When as many as seven persons armed with deadly weapons attacked, it would not have been possible for the eye witnesses to attribute specific injuries to each accused. (Para 19)
JT 2009(5) SC 617 – Relied upon.
(b) Indian Penal Code, 1860 – Section 97 – Well settled that it is for the accused to establish plea of private defence – Court has to examine the probabilities in appreciating such a plea – Nevertheless, the accused has to probablise the defence set up by it. (Para 24)
(1995) 5 SCC 187; 1998 SCC (Cri) 1477 – Relied upon.
(c) Indian Penal Code, 1860 – Section 302/149 – Number of accused person, their weapons and number and nature of injuries on the deceased persons clearly show the common object of committing murder – Conviction u/ss 302/149 not illegal. (Para 26)
Facts of the case :
1. Seven persons were sent up for trial under Sections 147 and 302 read with 149 IPC.
2. The trial court convicted all of them under Section 302 read with 149 IPC and sentenced them to life imprisonment. The trial court also convicted the accused for the offence punishable under Section 147 IPC and sentenced them to suffer nine months rigorous imprisonment.
3. The Conviction and sentence was affirmed by the High Court.
Finding of the Court :
Impugned judgment does not suffer from any legal flaw.
Result : Appeal dismissed.
JUDGMENT
R.M. Lodha, J.—
These two appeals by special leave arise out of one and the same judgment rendered by the High Court of Judicature at Allahabad whereby the criminal appeal preferred by the present appellants came to be dismissed.
2. Seven persons were sent up for trial to the 1st Additional Sessions Judge, Bahraich under Sections 147 and 302 read with 149 IPC. The trial court convicted all of them under Section 302 read with 149 IPC and sentenced them to life imprisonment. The trial court also convicted the accused for the offence punishable under Section 147 IPC and sentenced them to suffer nine months rigorous imprisonment.
3. The prosecution version is as follows:
Gheesey, Chhotey and Tojey are brothers. They resided in village Bahbolia, Police Station Sonwa, district Bahraich. The three brothers acquired about 15 bighas of agricultural land from one Smt. Prana. They have divided the aforesaid land in share of 5 bigha each and came into possession of their respective share. Sattar Khan (since deceased and hereinafter referred to as ‘D-1’) and Sabir Khan (since deceased and hereinafter referred to as ‘D-2’) claimed to have purchased from Gheesey his share in the agricultural land in the month of January, 1980 alongwith the crops sown thereon. On March 21, 1980, at about 8.00 A.M., D-1 and D-2 visited the said agricultural land and found that Aggi (A-1), Jaijai (A-2), Lakhan Pasi (A-3), Abid(A-4), Maqsood(A-5), Khalil (A-6) and Ghulam (A-7) were harvesting the Arhar crop from that land. D-1 and D-2 asked them as to why they were harvesting the crop. A-1 and A-2 replied that they had purchased the agricultural land from Gheesey and being owners of that land, they were entitled to harvest the crop. Then A-1and A-5 armed with ‘ballam’, A-3 and A-7 armed with ‘gadasa’ and A-2, A-4 and A-6 armed with ‘lathi’ started attacking D-1 and D-2 with respective weapons. D-1 and D-2 raised alarm. Peer Mohammad Khan (PW-1) and Maqsood Khan (PW-2) who were few paces away from the scene rushed to the spot and found that as a result of attack by A-1 to A-7, D-1 and D-2 sustained fatal injuries and died on the spot. The accused, having seen PW-1 and PW-2 , fled away.
4. PW-1 immediately, went to Police Station, Sonwa and lodged the first information report at 11.30 A.M.. Sub-Inspector Sukh Sagar Singh took up the investigation. He prepared the inquest report and sent the bodies of D-1 and D-2 for post mortem. Dr. P.C. Misra (PW-3) conducted post mortem on the body of D-2 on March 22, 1980. The post mortem of dead body of D-1 was conducted by Dr. M. Shamim (PW-5) at about 4.30 P.M. on March 22, 1980.
5. It appears that investigation into the crime changed hands number of times. After initial investigation done by Sukh Sagar Singh, the investigation then was handled by Mohammad Yunus Khan. Thereafter, the investigation was taken up by Rana Pratap Singh. After Rana Pratap Singh, the investigation was conducted by Sheonath Ram and on his transfer, investigation was further carried by Sarju Ram (PW-6). Initially a police report under Section 173 Cr.P.C. was filed but on reinvestigation, a chargesheet against all the seven accused persons under sections 147 and 302 read with 149 IPC was filed.
6. The matter having been committed to the Court of Sessions, the accused were charged under Sections 147 and 302 read with 149 IPC.
7. The prosecution in support of its case examined six witnesses, namely,Peer Mohammad (PW-1), Maqsood Khan (PW-2), Dr. P.C. Misra (PW-3), Syed Hasan Jafar (PW-4), Dr. M. Shamim (PW-5) and S.O. Sarju Ram (PW-6). Of the six witnesses tendered, PW-1 and PW-2 were examined as eye witnesses.
8. A-1 and A-2 set up the defence that while they were harvesting the crop in their agricultural field, D-1 and D-2 came there with few others and attempted to take away the harvested crop. On alarm being raised by them, the villagers came and assaulted D-1 and D-2. As a result of which D-1 and D-2 died. A-1 also set up the plea that Gh
