Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 119

SUPREME COURT OF INDIA
(From the High Court of Judicature at Allahabad)
M.R. SHAH, SANJIV KHANNA, JJ.
Omkar Singh – Appellant
Versus
Jaiprakash Narain Singh and Another – Respondents
Criminal Appeal No. 84 of 2022
Decided On : 09-02-2022

Advocates appeared:
For the Appellant(s) : Mr. Shiv Sagar Tiwari, AOR
For the Respondent(s): Ms. Manju Jetley, AOR Mr. Garvesh Kabra, AOR

IMPORTANT POINT
Court cannot acquit murderers by going against mass of evidence.

Headnote:
Indian Penal Code, 1860 – Sections 302/34 – Rape – Common intention – Appeal against acquittal – Right from very beginning name of respondent No.1 was disclosed – Respondent No.1-accused No.2 was named in FIR – There are three eye witnesses to incident and all prosecution witnesses have named respondent No.1-accused No.2 – All three prosecution witnesses are consistent and fully supported case of prosecution – Even High Court has also specifically observed and held that all three prosecution witnesses are reliable and trustworthy and there is no reason to doubt them – Respondent No.1-accused No.2 was rightly convicted with aid of Section 34 of IPC as he with a common intention to kill deceased accompanied his son and on finding deceased sleeping on different cot exhorted his son to kill him and thereafter his son killed deceased by fire arm – High Court ought to have confirmed conviction of respondent No.1-accused No.2 for offence punishable under Section 302/34 of the IPC – Impugned judgment and order is unsustainable both, on law and on facts – Impugned judgment and order set aside and judgment and order passed by Trial Court restored. (Paras 12, 12.1, 12.2 and 13)
Facts of the case:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 15.03.2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 304 of 1983 by which the High Court has allowed the said appeal preferred by respondent No.1 herein – original accused No.2 and has acquitted him for the offences punishable under Section 302 read with Section 34 of IPC, the original informant – son of the deceased has preferred the present appeal.
Findings of Court:
Both the accused with a common intention went to the place of deceased at midnight and as motive has been established and proved, High Court has committed a grave error in acquitting respondent No.1 – accused No.2. The finding recorded by the High Court is just contrary to the evidence on record.
Result : Appeal allowed.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 15.03.2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 304 of 1983 by which the High Court has allowed the said appeal preferred by respondent No. 1 herein-original accused No. 2 and has acquitted him for the offences punishable under Section 302 read with Section 34 of the IPC, the original informant-son of the deceased has preferred the present appeal.

2. As per the case of the prosecution, one Omkar Singh son of Parasnath Singh lodged an FIR at Police Station Karanda, District Gazipur stating that due to the enmity going on between his family members with Udaibhan Singh and his father Jaiprakash Narain Singh @ Lala (original accused Nos. 1 and 2) his father has been killed. As per the allegation, on 21.04.1982, there was marriage of daughter of one Kailashu Vishwakarma, who was his neighbour where he along with his Tau Vikrama Singh and his cousin brother Indradeo Singh had gone. After taking meal at about 12 in the night, he along with his Tau and cousin had gone on his pumping set for sleeping where his father Parasnath was lying from before. He and his cousin Indradeo Singh had slept on one cot whereas his Tau had slept on another cot. There was a lantern burning which was hanging on a stick. In between 2:303: 00 am in the night, accused Udaibhan Singh came near his cot and pulled the bedsheet on which he and his cousin woke up and his Tau also woke up. At that moment Jaiprakash Narain Singh @ Lala (A2) exhorted and stated that Paras is lying here come quickly and shoot him on which Udaibhan Singh (A1) went near the cot of his father Parasnath and shot him with country made pistol on his chest from a pointblank range and when the informant and the witnesses raised alarm then Udaibhan Singh again reloaded his country made pistol and threatened them on account of which they kept quiet. Thereafter both the accused ran away towards North. During the course of investigation, the Investigating Officer (IO) recorded the statements of the concerned witnesses including eye-witnesses and also collected the relevant evidences. On conclusion of the investigation, the IO filed the charge-sheet against both the accused for the offences under Sections 302 read with Section 302/34 of the IPC. As the case was exclusively triable by the learned Court of Sessions, the case was committed to the sessions court. Accused pleaded not guilty and therefore both of them came to be tried by the learned Sessions Court for the offences punishable under Sections 302 and 302/34 of the IPC respectively.

3. In order to bring the guilt of the accused the prosecution examined PW-1 Omkar Singh-informant and PW-2 Inderdeo Singh and PW-4 Vikram Singh (all eye-witnesses) and PW-3 Dr. P.C. Srivastava who conducted the post mortem of the deceased and PW-5 SI Kamta Singh. On closure of the evidence on behalf of the prosecution, further statements of the accused under Section 313 Cr.PC were recorded. That thereafter on appreciation of the entire evidence on record and believing PW-1, PW-2 and PW-4 (eye-witnesses) the learned Trial Court convicted A1-Udaibhan Singh for the offences punishable under Section 302 of the IPC and A2-Jaiprakash Narain Singh @ Lala for the offences punishable under Section 302 read with Section 34 of the IPC and sentenced them to undergo life imprisonment.

4. Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Trial Court convicting the accused for the offences punishable under Section 302 and Section 302/34 of the IPC respectively, the accused preferred an appeal before the High Court. By the impugned judgment and order, the High Court has though believed the eye-witnesses PW-1, PW-2 and PW-4 so far as the A1-Udaibhan is concerned and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the A1-Udaibhan, has

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