Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2021
(Arising out of SLP (Crl.) No.239 of 2020)
ASHARAM TIWARI ....APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellant, A2, assails his conviction and sentence
under Sections 302/34, 324/34, 325/34 and 323, IPC to life
imprisonment and lesser punishments. Four accused
persons were put on trial, the appellant being one of them,
for an occurrence that took place on 23.10.2006 at about
4.00 pm. Two persons were deceased and three injured.
Accused no. 3 and accused no. 4, who are not before us, have
also been convicted under Section 302. Accused no. 1 has
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2021.01.12
16:17:50 IST
Reason:
been convicted alike the appellant.
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3. The genesis of the occurrence lay in certain lands
purchased by PW1, from the father of the appellant. Peeved,
the appellant along with the coaccused came to the lands of
PW1 and asked him to return the lands to him. On refusal
by PW1, the accused are said to have threatened the witness
and assaulted PW1, his wife PW4, their 12 years old son
Ramashankar who was deceased within twenty four hours
during course of treatment and their minor daughter. The
appellants are then said to have proceeded to the house of
Ramdas, the brother of PW1, and shot him dead in presence
of his son PW2.
4. Learned counsel for the appellant submits that he was
possessed of a lathi only. Two of the coaccused, A3 and A4,
were armed with a countrymade pistol and an axe
respectively. Death of the two persons is ascribed to injuries
caused by axe and firearm respectively and not by lathi. The
third accused was also possessed of a lathi. The allegation of
assault with lathis is omnibus. It cannot be said with
certainty that the appellant also assaulted. The appellant did
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not share any common intention with the other accused and
has been implicated at the behest of the village sarpanch.
His defence of alibi has not been considered properly. All
three witnesses being related, false implication is evident
because none of the independent witnesses have been
examined. The defence of the appellant under Section 313,
Cr.P.C. has not been properly considered.
5. Learned Additional Advocate General appearing for the
State submitted that common intention is apparent from the
fact that the four accused came armed together on the lands
of PW1. Having failed in their threats to him for return of
the lands, all of them assaulted PW1, PW4, their daughter
and minor son. The accused then went together to the house
of the second deceased Ramdas and assaulted him also. The
appellant was well aware of the coaccused carrying a
countrymade pistol and axe. The recovery of a bloodstained
lathi and clothes of the appellant pursuant to his confession
conclusively establish common intention.
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6. We have considered the submissions on behalf of the
parties and perused the evidence on record.
7. The appellant was unhappy that his father had sold
lands to PW1 and wanted them back. The four accused
came to the lands of PW1 and threatened him to return the
lands. On his refusal to do so, A3 and A4 first assaulted him
with an axe. A1 and the appellant assaulted him with lathis.
PW4, and her two children came to the rescue of PW1.
They were also assaulted and injured. A3 and A4 assaulted
Ramashankar on the head with the blunt edge and sharp
edge of an axe respectively. The appellant and A1 also
assaulted him with lathis. He died 24 hours later during the
course of the treatment at the hospital.
8. The accused persons then together went to the house of
the second deceased, Ramdas, the brother of PW1. Accused
no.3 shot him dead while Accused no.4 assaulted him with
the sharp edge of an axe. The appellant and A1 assaulted
him with lathis. PW2 was an eye witness to the assault.
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9. The postmortem report of the deceased Ramdas
revealed the following injuries:
i. Contusion 8x6 cm on right arm (inflicted with
hard and blunt weapon)
ii. Contusion 6x5 cm in mid of left arm (inflicted
with hard and blunt weapon)
iii. Lacerated wound 4x1 cm deep upto the skin on
the right brow (inflicted with hard and blunt
weapon)
iv. Ingress injury 5x3 cm which was oval shaped in
the stomach (inflicted with a firearm)
v. Egress injury 32 cm on the right side at the back
at the level of 5th lumbar vertebra (firearm).
10. The postmortem report of the deceased Ramashankar
revealed the following injuries:
i. Incised wound injury of 5cm in temporal area.
ii. Fracture and blood clotting.
iii. 4x2 cm injury which was stitched on the right
side of parietal area.
iv. Incised wound on the left shoulder
v. Injuries on the neck and forehead with hard and
blunt object.
11. PW1 and PW4 are both injured witnesses. They have
both been found to be reliable and truthful. We see no
reason why they would falsely implicate another, when the
deceased was their own minor son. Similarly, PW2 is the
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son of the second deceased, an eye witness to the killing of
his father at home. The failure to examine any available
independent witness is inconsequential. It is the quality of
the evidence and not the number of witnesses that is
relevant. It is nobody’s case of the accused that PW1 and
PW4 were not injured in the same occurrence or that PW2
was not an eye witness.
12. The number and nature of hard blunt injuries on the
two deceased make it apparent that the assailants were more
than one. Injuries by hard and blunt substance corroborate
the evidence of the injured witnesses and PW2 of assault on
the two deceased by lathis also. Common intention is evident
from the accused persons coming to the lands of PW1 armed
and intimidating him to return the lands followed by assault
upon him and those who came to his rescue. The accused
then immediately proceeded to the house of the second
deceased. The recovery of a bloodstained lathi and
bloodstained clothes of the appellant on his confession,
leaves us satisfied, on a cumulative appreciation of the
evidence, that the accused were actuated by a common
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intention. The conviction of the appellant therefore calls for
no interference.
13. It was lastly submitted before us that the appellant has
completed over 14 years of custody including remission and
that he is 72 years old. Notwithstanding our refusal to
interfere with the conviction and sentence, if the appellant
makes an application for premature release, it is for the
authorities to consider the same in accordance with law. The
appeal is dismissed.
…………...................J.
[R.F. NARIMAN]
.…………...................J.
[NAVIN SINHA]
NEW DELHI
JANUARY 12, 2021.
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