2012 Supreme(SC) 54

2012 (1) Supreme 743
SUPREME COURT OF INDIA
Dr. B.S. Chauhan and T.S. Thakur, JJ
Onkar & Anr. — Appellants
versus
State of U.P. — Respondent
Criminal Appeal No. 1840 of 2008
Decided on : 18-01-2012

IMPORTANT POINTS
(1) Indian Evidence Act, 1872 ¯ Section 3 ¯ Relation witness ¯ It is a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinised and appreciated before resting of conclusion the convict/accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Para 7)
(2) Indian Evidence Act, 1872 ¯ Expert evidence ¯ Medical evidence ¯ Inquiries on the person of the accused ¯ Where injuries are found on the person of the accused but the accused never raised grievance about the inquiries, it establishes the presence of the accused at the place of occurrence, and that he participated in the crime. (Para 8)

Headnote:(a) Indian Penal Code, 18650 ¯ Sections 302/149, 307/149 and 452 ¯ Two appellants Onkar and Tara and five others faced trial before the trial Court under Sections 302/149, 307/149 and 452, were convicted and sentenced to life imprisonment for offence under Sections 302/149 and various terms of sentences under other sections ¯ Accused persons preferred appeal ¯ During pendency of appeal before High Court three accused died, hence their appeal abated, one accused was child on the date of occurrence, therefore in appeal the High Court maintained his conviction but set aside his sentence giving benefit under Section 2(4) of the U.P. Children Act, 1951 ¯ The appeal of three convicts, the appellants and one accused M was dismissed ¯ Out of three only two appellants Onkar and Tara preferred appeal before the Supreme Court ¯ Appeal dismissed, conviction of the two appellants sustained.

        (b) Indian Evidence Act, 1872 ¯ Section 3 ¯ Relation witness ¯ It is a settled legal proposition that evidence of closely related witnesses is required to be carefully scrutinised and appreciated before resting of conclusion the convict/accused in a given case. In case, the evidence has a ring of truth, is cogent, credible and trustworthy it can be relied upon. (Para 7)

        (c) Indian Evidence Act, 1872 ¯ Expert evidence ¯ Medical evidence ¯ Inquiries on the person of the accused ¯ Where injuries are found on the person of the accused but the accused never raised grievance about the inquiries, it establishes the presence of the accused at the place of occurrence, and that he participated in the crime. (Para 8)

        (d) Indian Penal Code, 1860 ¯ Section 149 ¯ Where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague ¯ It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it may yet fall under second part of Section 149 IPC, which states that if the offence was such as the members knew was likely to be committed ¯ Further inference has to be drawn as to the number of persons involved in the crime; how many of them were merely passive witnesses; what arms and weapons they were carrying alongwith them ¯ Number and nature of injuries is also relevant to be considered ¯ “Common object” may also be developed at the time of incident ¯ In the instant case all the assailants came together and participated in the crime in which O was killed, and two persons were injured ¯ The assailants tried to break open the door of the house but could not succeed, thus they fired from the ventilator and that is why two persons got injured ¯ After commission of the offence a large number of persons gathered at the place of occurrence ¯ The assailants ran away ¯ The offence was committed at mid-night ¯ Inference can safely be drawn that the assailants had an object to commit murder of persons on the victims’ side and they participated in the crime. (Para 12 and 13)

       Facts of the Case

        An FIR was filed on 23.3.1980 at 2.50 A.M. with the Police Station Harduwaganj, District Aligarh that on 22-23/3/1980 at about 12 O’clock, Jalsur (PW.2) - complainant and his Uncle Onkar Singh (deceased) were sleeping on the roof of their house in their village Kidhara. The appellants came to the house of complainant alongwith other accused persons. One Jagdish who was having a shop in the outer room of the complainant’s house, woke up after hearing the sound of the movement of appellants and accused persons and raised alarm and took to his heels. Jalsur (PW.2) and his uncle Onkar Singh (deceased) also woke up. Onkar Singh (deceased) climbed down from the roof towards Chabutara while Jalsur (PW.2) jumped in the adjoining house of his uncle Bahori and came out in the open and set fire to a “chappar” in front of his own house. It was in the light of the fire made on account of burning of “Chappar”, that Jalsur (PW.2) saw the accused Bira, Tara, Onkar, Rati Ram and some 7-8 unknown persons. The appellants were armed with country made pistols and other assailants were armed with lathi, bhala and other lethal weapons. A scuffle took place between the assailants and Onkar Singh (deceased) and he received a gun shot injury on his chest and died. Some of the assailants climbed down into the house of the informant and tried to break open the doors of the rooms but on their failure to do so, they opened fire on the doors and some of them entered the rooms through ventilators. The firing caused injuries to the informant’s son Chandra Bose and daughter Tarwati. On seeing pressure mounting, the culprits pushed the deceased (Onkar) into the fire of the “Chappar” which had been set ablaze by the informant, and thereafter ran away. After investigation the IO submitted charge-sheet against the accused persons. Hence the accused persons faced trial under the counts indicated above. All the accused persons pleaded not guilty and claimed to be tried. After trial the trial Court convicted and sentenced the accused persons as stated above.

       Findings

        Case proved. The two appellants are named in FIR. The eye-witness are reliable witness. Accused persons were identified in test identification.