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SUPREME COURT OF INDIA
RANJANA PRAKASH DESAI, MADAN B. LOKUR, JJ.
ASHOK RAI – APPELLANT
Versus
STATE OF U.P. & ORS. – RESPONDENTS
CRIMINAL APPEAL NO. 1508 OF 2005
Decided On : 15-04-2014
(2006) 11 SCC 444; (2012) 12 SCC 701 – Referred
(b) Criminal Trial – Interested witness – Evidence of – Corroboration is prudent practice – Not always a must – On careful scrutiny, evidence of PW1, PW2 and PW4 appearing acceptable. (Para 10)
(2012) 12 SCC 701 – Relied upon
(c) Criminal Trial – Appreciation of evidence – Pardanashin lady cannot be seen by others but she can see others – No infirmity in her identifying the accused persons. (Para 12)
(d) Criminal Trial – Alibi – Plea that appellant was busy with his thesis for M.Sc.(Agr.) and remained outside the village for most of the time – As such was not in the village on the night of occurrence – Occurrence in June when institutions are closed for summer vacation – No evidence to show appellant residing in a hostel – Distance between village and appellant’s institution not mentioned – Plea of alibi held not proved. (Para 16)
(e) Criminal Trial – Perversity of judgment – Trial court giving undue importance to diary entries – General feeling of the society has no relevance to a criminal case – No infirmity in High Court interfering with trial court judgment. (Para 18)
(2010) 1 SCC 94; (1995) 4 SCC 430 – Relied upon
(1979) 1 SCC 355; (1995) 5 SCC 96 – Referred
Facts of the case:
Bashisht Rai–A1 was tried for the offences under Sections 148, 302 and 449 of the IPC. Ashok Rai-A3 and Umesh Chandra Rai-A6 were charged under Sections 148, 449 and 302 read with Sections 34 & 149 of the IPC. They were alternatively charged under Section 302 read with Section 34 of the IPC. Rest six accused were charged under Sections 147 and 302 read with Section 149 of the IPC.
They were charged for murder of Kailash Rai over land dispute.
The trial court convicted Umesh Chandra Rai-A6 under Section 302 read with Sections 34 and 449 of the IPC. The remaining seven accused were acquitted.
The High Court held Bashisht Rai-A1 and Ashok Rai-A3 guilty and convicted them for the offences punishable under Sections 302 and 449 of the IPC and under Section 302 read with Section 34 and Section 449 of the IPC respectively. Each of them was sentenced to life imprisonment for each of the offences. The acquittal of the other accused was upheld.
Finding of the Court:
High Court rightly overturned the trial court judgment.
Result: Appeal dismissed.
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. There were eight accused. They were Bashisht Rai-A1, Jai Prakash Rai-A2, Ashok Rai-A3, Awadh Narain Rai-A4, Hirdaya Narain-A5, Umesh Chandra Rai-A6, Loknath-A7 and Ramnath Rai-A8. All of them were tried in Sessions Trial No. 215 of 1979. Bashisht Rai–A1 was tried for the offences under Sections 148, 302 and 449 of the IPC. Ashok Rai-A3 and Umesh Chandra Rai-A6 were charged under Sections 148, 449 and 302 read with Sections 34 & 149 of the IPC. They were alternatively charged under Section 302 read with Section 34 of the IPC. Rest of the accused were charged under Sections 147 and 302 read with Section 149 of the IPC.
2. According to the prosecution deceased Kailash Rai, the material witnesses and the appellant belong to one family being descendants of a common ancestor. They lived in a joint family. Umesh Chandra Rai-A6 was the son of Babu Lal brother of Ram Dutt (father of deceased Kailash Rai & PW1- Kamla Rai, the informant). Deceased Kailash Rai and other members of his family lived jointly with Babu Lal. Umesh Chandra Rai-A6 separated from the joint family 7 to 8 months before the occurrence because of oral partition. He wanted his share from the land in Tandwa village. His father Babu Lal was not agreeable to this. There was altercation between deceased Kailash Rai and Umesh Chandra Rai-A6 on this issue. Umesh Chandra Rai-A6 developed friendship with Loknath-A7 who had a personal enmity with PW1-Kamla Rai. There were civil litigations pending between Loknath –A7 and PW1- Kamla Rai.
3. The incident in question took place in the night intervening 26th & 27th of June, 1979 between 1.00 a.m and 2.00 a.m. PW1-Kamla Rai, Shriram Rai, Gorakh Rai, Munna Lal and children were sleeping in the Sehan in the north of the Baithaka. The ladies were sleeping inside the Zanana house. Deceased Kailash Rai and his wife PW4-Bijula Devi were sleeping on a cot inside the Ahata. Between 1.00 a.m. and 2.00 a.m. Ashok Rai-A3, Umesh Chandra Rai–A6 and Bashisht Rai-A1 came in the Ahata by climbing over the roof through the window. They came inside. Bashisht Rai-A1 was armed with a dao. Umesh Chandra Rai-A6 had a gandasa. Ashok Rai-A3 was armed with a sword. Ashok Rai-A3 closed the mouth of PW4-Bijula Devi. She woke-up. She saw Umesh Chandra Rai-A6 pressing the head of her husband and Bashisht Rai-A1 cutting his throat. Deceased Kailash Rai started moving his body restlessly. He received two injuries on his chest. Thereafter, all the three accused started running away. PW4-Bijula Devi raised cries and flashed the torch. The accused reached the gate and looked at her. She continued to cry. The accused went out through the door which opened towards the verandah of the Baithaka. PW1- Kamla Rai, Shriram Rai and others who were sleeping outside in the Sehan woke-up due to the cries of PW4-Bijula Devi. PW1-Kamla Rai and Shriram had torches with them. They flashed the torches towards the door through which Umesh Chandra Rai-A6, Bashisht Rai-A1 and Ashok Rai-A3 were coming out. They saw Bashisht Rai-A1 with a dao, Ashok Rai-A3 with a sword and Umesh Chandra Rai-A6 with a gandasa. They were challenged by PW1-Kamla Rai and others, but they continued running towards the South. PW1-Kamla Rai came in the Ahata and found Kailash Rai lying dead near his cot with a throat injury. PW4-Bijula Devi was crying. Her clothes were blood stained. She narrated the incident to him. He dictated his report to Ram Babu. He took it to P.S. Mohamadabad. It was lodged at 2.45 a.m. Entry was made in General Diary. Investigation was started. The accused were arrested. Post-mortem of deceased Kailash Rai revealed following external injuries.
“1. One incised wound on right side of neck in the middle measuring 15 cm x 4 cm, horizontally placed extending from anterior aspect of neck up to posterior aspect of right side with retracted skiing in the middle, clear cut margins, inverted all major vessels and muscles, trachea, ocsephegens cut upto bone
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