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2011 (2) Supreme 617
SUPREME COURT OF INDIA
V.S. Sirpurkar and T.S. Thakur, JJ.
Rajesh Singh & Ors. — Appellants
versus
State of U.P. — Respondent
Criminal Appeal No. 1160 of 2005
Decided on : 28-3-2011
Facts of the Case :
Appellant was prosecuted herein in the instant case along with two others for causing death of a young boy by assaulting him with bricks and cane and thereafter hanging him with a hook of ceiling. Trial Court acquitted accused persons. State Appeal was Allowed by High Court convicting accused persons.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
FIR was lodged by witness (PW-1) on day of occurrence itself at 6.40 p.m. . Thus, if the incident happened at about 5 O’Clock in the evening, the recording of the FIR at 6.40 p.m. in a police station which was 8 Kms. away from the spot of occurrence could not be said to be late Reporting.In his cross examination, PW1 gave a graphic description of what each accused was doing while beating deceased. The tenor of his evidence being natural Sessions Judge erred in rejecting the evidence on flimsy grounds. Same was true of the evidence of S who gave a correct and graphic picture of what happened. No prevarications or inter se contradictions in the evidence of these witnesses. Approach of Sessions Judge, while appreciating the evidence of these two eye witnesses was extremely perverse. Trial Court found fault with the fact that other witnesses were not examined. That could be hardly a circumstance in favour of defence, particularly, when two other witnesses were offered. It is not the quantity but the quality of the evidence which matters.Again Sessions Judge failed to take into consideration evidence of doctor who wholeheartedly supported prosecution cas.- No explanation from accused persons, as to how body was found in a hanging position in the house of one of accused. All the witnesses were unanimous on the point that all the three accused persons went inside the house dragging deceased with them.Held since all the three accused persons had acted with common intention of causing the death , all the three accused persons would be guilty with the aid of Section 34, IPC. The reasoning given by trial Court for acquittal of accused persons was wholly unacceptable and could safely be called perverse.High Court was held justified in reversing acquittal .Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
V.S. Sirpurkar, J. —
1. The judgment passed by the High Court allowing the appeal against acquittal and convicting the appellant for the offence under Section 302 read with Section 34, IPC is in challenge in this appeal.
2. The three appellants, Rajesh Singh (accused No.1), Najai Srivastav (accused No.2) and Mohan Singh (accused No.3) came to be tried by the trial Court on the allegation that they had committed murder of a young boy Deepak on 11.4.1993 in the evening at about 5 O’Clock. Deceased Deepak was the son of Virendra Kumar (PW-1). Virendra Kumar (PW-1) was a lawyer’s clerk. When he and his brother S.K. Srivastav, an advocate, were going for having ‘paan’ at the paan shop near Pico centre belonging to accused No.1, Rajesh, they saw that the three accused persons were beating Deepak. Deepak was made to take the posture like a cock (murga) and two bricks were kept on his back. Rajesh was hitting him with those bricks and the hands and feet of the boy had been tied and accused Najai was hitting him with a can. When Virendra Kumar (PW-1) asked as to why his son was being beaten, it was told that Deepak had stolen some money. Virendra Kumar (PW-1) requested the accused persons to let the child go as they had already beaten him severely. However, Rajesh refused to leave him and threatened that if he does not go he would also be assaulted. This incident was seen by some others also. On this Virendra Kumar (PW-1) said that he would inform the police but waited. All the three accused persons dragged Deepak to house No.128/21, C-Block, Kidwai Nagar, Kanpur which was the house of accused No.3, Mohan Singh. They confined him inside and shut the door. Virendra Kumar (PW-1) and others kept on shouting from outside. After about half an hour, the three accused persons ran away. When Virendra Kumar (PW-1) and others went inside they saw that the boy was hung with a hook in the ceiling. His feet were dangling at the height of 4-5 feet from the floor and he was dead. Virendra Kumar (PW-1) then informed the police by lodging an FIR.
3. The investigation was taken up by Chandra Shekhar Yadav (PW-4). He reached the spot, did the necessary formalities and sent the body for autopsy. As many as five ante-mortem injuries were found on the dead body during the post-mortem which was conducted by Dr. Jugal Kishore Sharma (PW-3). These injuries were in the nature of large abraded contusions. On internal examination his hyoid bone was found fractured. As per the opinion expressed, the boy died due to asphyxia as a result of throttling. After the investigation, charge sheet was filed. The prosecution examined Virendra Kumar (PW-1), Shyam Ji Pandey (PW-2) as eye-witnesses while Dr. Jugal Kishre Sharma who had conducted autopsy on the dead body of deceased was examined as PW-3. In addition to this, police witnesses were also examined. The accused abjured the guilt. The trial Court, however, acquitted the accused persons dis-believing the eye witnesses and held that their presence was doubtful. He also held that the conduct of Virendra Kumar (PW-1) was unnatural. The trial Court also observed that the prosecution had failed to examine S.K. Srivastav advocate, another eye witness.
4. The State filed an appeal against this judgment and the High Court allowed the appeal convicting the three accused persons of the offence under Section 302 read with Section 34, IPC. That is how the appeal has come before us.
5. It was vehemently argued by Shri Sanjay Jain, learned counsel for the appellants that this was a case where the medical evidence was contradictory with the evidence of eye witnesses. He also pointed out that the trial Court had given sound reasons and the High Court had not exercised the caution while upsetting the finding of acquittal handed out by the trial Court. The learned counsel also urged that it not was found that the judgment of the trial Court was perverse and the inferences were not possible at all. The appellate Court could no
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