Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.84 OF 2022
Omkar Singh ..Appellant(S)
Versus
Jaiprakash Narain Singh & Anr. ..Respondent(S)
J U D G M E N T
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
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.02.09
16:13:04 IST
Reason:
punishable under Section 302 read with Section 34 of the
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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)
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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 chargesheet 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.
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3. In order to bring the guilt of the accused the prosecution
examined PW1 Omkar Singh – informant and PW2
Inderdeo Singh and PW4 Vikram Singh (all eye witnesses)
and PW3 Dr. P.C. Srivastava who conducted the post
mortem of the deceased and PW5 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 PW1, PW2 and PW4 (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
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Court has though believed the eye witnesses – PW1, PW2
and PW4 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 acquitted A2 – Jaiprakash Narain Singh @ Lala mainly
on the ground that the three prosecution witnesses had
given him role of exhortation only and no overt act has been
assigned to him and therefore there might be an
exaggeration of his role and false implication by the
witnesses in order to see that both the accused – father and
son are put behind the bars because of the property dispute
between the parties.
5. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court acquitting
respondent No.1 herein original accused No.2, the original
informant has preferred the present appeal.
6. Shri D.P. Singh Yadav, learned counsel appearing on behalf
of the appellant has vehemently submitted that in the facts
and circumstances of the case, the High Court has
committed a grave error while acquitting respondent No.1
herein – original accused No.2.
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6.1 It is vehemently submitted by learned counsel appearing on
behalf of the appellant that as such respondent No.1 was
named in the FIR. It is submitted that all the three eye
witnesses – PW 1, PW2 & PW4 named respondent No.1 –
accused who went to the pumping set where the deceased
was sleeping and that respondent No.1 with a common
intention to murder the deceased accompanied his son –
accused No.1 and on finding the deceased on a different cot
exhorted his son to kill him and thereafter accused No.1
killed the deceased with fire arm. It is submitted that
therefore the learned Trial Court rightly convicted
respondent No.1 – accused with aid of Section 34 of the IPC.
6.2 It is further submitted that even as per the finding recorded
by the High Court the motive has been established and
proved by the prosecution. It is submitted that
unfortunately the High Court has acquitted respondent No.1
– accused solely on the ground that overt act assigned to
respondent No.1 – accused No.2 is of exhortation only and
therefore, his involvement appears to be doubtful.
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6.3 It is submitted that the said finding/observation is on
surmises and conjectures and just contrary to the evidence
on record. It is submitted that the presence of the accused
has been established and proved by the prosecution by
examining PW1, PW2 and PW4, who are the eye witnesses
and that their evidence has been believed by the High
Court. It is submitted that therefore there is no reason to
doubt the presence of the accused – respondent No.1 herein
at the place of incident.
7. Making the above submissions it is prayed to allow the
present appeal.
8. Shri Garvesh Kabra learned counsel appearing on behalf of
the State has supported the appellant and has submitted
that the High Court has erred in acquitting respondent No.1
– accused No.2.
9. The present appeal is opposed by Shri R.M. Sinha learned
counsel appearing on behalf of respondent No.1 – accused
No.2. It is submitted by learned counsel appearing on behalf
of respondent No.1 – accused No.2 that cogent reasons have
been given by the High Court while acquitting respondent
No.1 – accused for the offence punishable under Section
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302 of the IPC, and therefore the same is not required to be
interfered with by this Court in exercise of power conferred
under Article 136 of the Constitution of India.
9.1 It is further submitted that as rightly observed by the High
Court all the three prosecution witnesses had given accused
the role of exhortation only and no further overt act has
been assigned to him and even as per the prosecution
witnesses and even the prosecution the fire arm was used
by accused No.1 and the only allegation against respondent
No.1 herein – original accused No.2 was exhortation. The
High Court has rightly acquitted respondent No.1 – accused
for the offences punishable under Section 302/34 of the
IPC.
10. Making the above submissions it is prayed to dismiss the
present appeal.
11. We have heard learned counsel appearing on behalf of the
respective parties at length.
12. At the outset it is required to be noted that in the present
case right from the very beginning the name of respondent
No.1 was disclosed. Respondent No.1 – accused No.2 was
named in the FIR. There are three eye witnesses to the
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incident namely PW1, PW2 and PW4 and all the
prosecution witnesses have named respondent No.1 –
accused No.2 and all of them have stated that both the
accused came at the pumping set where the deceased was
sleeping and at that time on finding the deceased sleeping
on the different cot, respondent No.1 herein – accused No.2
exhorted his son to kill the deceased and his son – accused
No.1 killed the deceased by fire arm. All the three
prosecution witnesses are consistent and fully supported
the case of the prosecution. Even the High Court has also
specifically observed and held that all the three prosecution
witnesses are reliable and trustworthy and there is no
reason to doubt them. Therefore, once even the High Court
also found all the three prosecution witnesses – PW1, PW2
and PW4 trustworthy and reliable and in fact confirmed the
conviction of accused No.1 for the offence punishable under
Section 302/34 of the IPC, the High Court ought not to have
thereafter doubted the presence of accused No.2 –
respondent No.1 herein. Once the High Court has even
confirmed the conviction of accused No.1 relying upon all
the three eye witnesses, the High Court ought to have
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confirmed the conviction of respondent No.1 – accused No.2
also relying upon the three eye witnesses.
12.1 From the reasoning given by the High Court it appears that
the High Court has acquitted respondent No.1 – accused
No.2 just on the ground that all the three eye witnesses had
given him the role of exhortation and no overt act has been
assigned to him, this may be due to exaggeration of his role
so as to falsely implicate him and see that the father and
son are put behind bars. However, it is required to be noted
that both the accused – father and son went together to the
place/pumping set where the deceased was sleeping. Even
as per the High Court the motive has been established and
proved. The High Court has also observed that due to land
dispute there was enmity between the parties. Therefore,
the High Court ought to have appreciated that respondent
No.1 – accused No.2 was rightly convicted with the aid of
Section 34 of the IPC as he with a common intention to kill
the deceased accompanied his son and on finding the
deceased sleeping on the different cot exhorted his son to
kill him and thereafter his son killed the deceased by fire
arm. Therefore, once his presence has been established and
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proved and specific role of exhortation was assigned to him,
the High Court ought to have confirmed the conviction of
respondent No.1 – accused No.2 for the offence punishable
under Section 302/34 of the IPC.
12.2 It is also required to be noted that as such the High Court
has upheld/confirmed the conviction of accused No.1 for
the offence punishable under Section 302/34 of the IPC.
Therefore, once the conviction of accused No.1 for the
offence punishable under Section 302/34 of the IPC was
upheld/confirmed, the High Court ought to have
upheld/confirmed the conviction of accused No.2 who was
also charged for the offence punishable under Section
302/34 of the IPC. Both the accused with a common
intention went to the place of deceased at midnight and as
observed hereinabove the motive has been established and
proved, the 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. The impugned judgment and order is
unsustainable both, on law and on facts.
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13. In view of the above and for the reasons stated above the
present appeal succeeds. The impugned judgment and order
passed by the High Court acquitting respondent No.1 –
original accused No.2 – Jaiprakash Narain Singh is hereby
quashed and set aside and the judgment and order passed
by the learned Trial Court convicting him for the offence
punishable under Section 302/34 of IPC and sentencing
him to undergo life imprisonment is hereby restored. Now
respondent No.1 – original accused No.2 to surrender within
a period of four weeks to undergo life imprisonment.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(SANJIV KHANNA)
New Delhi,
th
February, 9 2022
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