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2008 Supreme(All) 2329
[2008 (9) ADJ 447 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMTIYAZ MURTAZA AND ARVIND KUMAR TRIPATHI, JJ.
MUNNE, ETC. ETC. .............Appellants
Versus
STATE OF U.P., ETC. ETC. ...........Respondents
(Criminal Appeal Nos. 8050, 8069 of 2006, 698 of 2007, Jail Appeal No. 173 of 2007 and Reference No. 14 of 2006, decided on 17th October, 2008)
Counsel :
Apul Misra, V.K. Mishra, K.S. Chahar, Sushil Kumar Tiwari, Rajiv Gupta and Braham Singh for the Appellant; K.N. Bajpai, A.G.A. for the State.
Headnote:(A) (Indian) Penal Code, 1860—Sections 302/34, 307 and 354—Arms Act, 1959—Section 4/25—Conviction and sentence for causing death of three persons—Life imprisonment passed by Sessions Judge—Appeal against—Appreciation of evidence—P.W. 1 and 3 proved prosecution case—And P.Ws. 6 and 10 proved inquest report and other police papers—On certain discrepancies pointed out by Counsels for appellants, but it has been explained by Sessions Judge—Thus, such discrepancies were of a minor nature and insignificant—Hence, Sessions Judge has rightly appreciated and accepted prosecution case—Thus, no interference in view of Sessions Judge—Because every discrepancy found in ocular account of witnesses, cannot affect credibility of evidence of witnesses—Thus, there was no significant contradictions between testimonies of witnesses—Hence, conviction affirmed and sentence of death modified. [Paras 28 to 34]
(B) (Indian) Evidence Act, 1872—Section 9—Test identification parade—Accused persons were not known to witnesses—Plea of Counsel for appellant that accused persons were not put-up for identification—Identification in Court, is substantive evidence—There was no reasonable justification for putting accused persons for identification—Accused were constantly chased by villagers—Moreover, witnesses have identified accused and specified their actual roles in Court there was absolutely no motive for witnesses to falsely rope accused in such a crime where three co-villagers are done to death. [Paras 35 and 36]
(C) (Indian) Penal Code, 1860—Section 34—Murder—Offence under Section 302—Case registered under Section 302/34 for killing three persons—Applicability of Section 34 in instant case—Section 34 has been enacted on principle of joint liability in doing of a criminal act—That section is only a rule of evidence and does not create a substantive offence—Distinctive feature of section, is element of participation in action—And intention can only be inferred from circumstances—Acts may be different in character—But, must have been actuated by one and same common intention in order to attract that provision—And that section recognizes principle of vicarious liability in criminal jurisprudence.
[Paras 37, 43, 44 and 53]
(D) (Indian) Penal Code, 1860—Sections 302/34—Evidence Act, 1872—Sections 3 and 9—Murder—Death sentence—Passed by Sessions Judge for murder of three persons—Alternation in sentence—Post-mortem report lends support to ocular testimony—And also proved by cogent evidence by witnesses—Sessions Judge awarded death sentence—Held, death sentence reduced to life imprisonment in cases of all accused
persons. [Paras 62 to 66]
Hon’ble Imtiyaz Murtaza, J.—The above appeals have their genesis in a composite judgment and order dated 30.11.2006 rendered by the Special Sessions Judge Court No. 3 J.P. Nagar. Criminal Appeal No. 698 of 2007 is a jail appeal preferred by Dharampal appellant. It would appear that S.T. Nos. 485 of 2003, State v. Suraj and others; 482 of 2003, State v. Suraj, 483 of 2003, State v. Dharampal and 484 of 2003, State v. Munne were knit together for trial by reason of being related to one and the same occurrence and a composite verdict has been rendered. It would further appear that Munne, Suraj and Dharampal appellants were convicted under Section 302, I.P.C and out of which Suraj and Dharampal have been sentenced to be hanged till death. Appellant Munne has been sentenced to undergo imprisonment for life upon his being held guilty under Section 302/34, IPC. The trial Court also recorded conviction of the accused persons under Section 307. I.P.C. and each of them have been sentenced to suffer five years R.I. All the accused persons have further been convicted under Section 354, I.P.C. and each of them have been sentenced to undergo R.I. for two years. The trial Court also recorded conviction of the appellants Suraj and Dharampal under Section 25 Arms Act and sentenced each of them to suffer R.I. for two years. Accused Munne has been further convicted under Section 4/25, Arms Act and sentenced to undergo R.I. for one year. All the accused persons have also been sentenced to pay fine separately on various counts as embodied in the judgement of the trial Court.
2. Appellant Suraj is represented by Apul Misra, appellant Munne by Sri V.K.Mishra, K.S.Chahar, Sushil Kumar Tiwari and Brahm Singh and appellant Dharampal by Sri Rajiv Gupta. The State is represented by Sri K.N.Bajpai learned Additional Government Advocate.
3. We have heard the counsel for the parties at prolix length who have taken us through the entire record and judgment of the trial Court in order to press home their respective points.
4. The incident is stated to have occurred on 4.8.2003 and the report of the occurrence was lodged at Police Station Hasanpur at about 5 p.m. by the informant namely, Ram Prasad to the effect that the prosecutrix namely Sumrati daughter of Daulat and Kamlesh daughter of one Futteh Singh of village Kakathaur had gone to the field to collect grass and when they were busy cutting grass in the field adjacent to the field of sugar-cane of Nathu, accused persons who were sitting on the edge of the field, caught hold of the girls and dragged them inside the field. Upon the screams raised by the aforesaid girls, the village people who were present in their respective fields nearby namely, Nanak, Chandrapal, Harpal, Shanker, Ramahar, Nainsukh, Inder, Ramautar, Nathu Singh, Prem Giri, Hari Om Bihari, Gana Pooran etc. rushed to the rescue of the girls. Upon noticing the village people converging to their side, the accused persons freed the girls from the clutches and began to flee and fired which hit Nanak deceased who slumped down on the ground. However, the village people continued to pursue the accused persons. The accused persons again fired back and this time the fire hit Chandrapal and thereafter, Harpal who fell down. However, the pursuit continued and people of village Hajipur also joined the pursuit. Subsequently, on being informed, the police of P.S. Saidanagli also arrived and challenged the accused persons and ultimately, with the coordinated efforts of the police and the public, the accused persons were overpowered at about 7 p.m. near village Hajipura. The accused persons upon being caught by the police disclosed their identity as being Munne, Suraj and Dharampal. The search of their persons yielded country made pistols, cartridges and a dagger. At police station Hasanpur, case was registered at case crime No. 857 of 2003 under Sections 354, 307 and 302, I.P.C. against Suraj, Dharampal and Munne. Another case under Section 307, IP
