Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
SHRI RAM & ANOTHER
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT06/11/1974
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION:
1975 AIR 175 1975 SCC (3) 495
CITATOR INFO :
D 1989 SC1661 (20)
ACT:
Indian Penal Code, Section 107, third paragraph-Abetment,
meaning of-Proof that crime charged could not have been
committed without the interposition of alleged abettor, if
sufficient compliance with the section.
Criminal Trial-Conduct of shouting by accused during the
occurrence-Court not justified in heaping one assumption on
another to particular conduct of accused a meaning it does
not naturally bear.
Code of Criminal Procedure, Section 342-Failure of accused
to explain her shout in her statement-Adverse inference, if
could be drawn-Accused, if could subjected to cross-
examination.
Criminal Trial-Identification parade, a weak type of
evidence-Oral testimony of prosecution witness, if should be
corroborated by evidence of identification-Accused asking
for an identification parade, a circumstance, in his favour.
HEADNOTE:
Three brothers by the name of Sia Ram, Shri Ram and Ram
Chandra, a woman by the name of Violet, and her son Ramesh
were tried by the learned Sessions Judge Farrukhabad, in
connection with the murder of one Kunwar Singh. The learned
Judge convicted Sia Ram under section 302, Penal Code and
sentenced him to death. Violet was convicted under section
302 read with section 109 and was sentenced to imprisonment
for life. The remaining three accused were acquitted by the
Sessions Court. Sia Ram and Violet challenged their
conviction by filing an appeal in the High Court while the
State of U.P. filed an appeal against the acquittal of Shri
Ram, Ram Chandra and Ramesh. The High Court confirmed the
conviction and sentence of Sia Ram and Violet. It dismissed
the appeal filed by the State Government except in regard to
Shri Ram whom it convicted under section 302 read with
section 109. He was sentenced to imprisonment for life.
Shri Ram, Sia Ram and Violet have filed these appeals by
special leave.
Allowing the appeals by Shri Ram and Violet and rejecting
that of Sia Ram.
HELD : (i) The only part attributed to Violet is that on
seeing the deceased Kunwar Singh, a practising lawyer, who
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
was coming by cycle along with his two brother-lawyers,
Brijendra Singh Yadav and Om Prakash Dubey, she shouted "The
Vakil has come." The Sessions Court and the High Court have
accepted the evidence that she did give the particular
shout. In accordance with the practice of this Court, no
different view ought to be taken of these simple facts.
[625A-C]
(ii) In order to constitute abetment, the abettor must be
shown to have "intentionally" aided the commission of the
crime. Mere proof that the crime charged could not have
been committed without the interposition of the alleged
abettor is not enough compliance with the requirements of
section 107. intentional aid and therefore active complicity
is the gist of the offence of abetment under the third
paragraph of sec. 107. [625E-F]
(iii) Apart from the words attributed to Violet. there
is nothing at all to show that she was aware of the
nefarious design of Sia Ram and his associates. Violet who
was working as a nurse with a doctor was friendly with Sia
Ram who was his compounder but that may explain why, if at
all, she agreed to do as directed. it is true that the
assailants were carrying guns and hockey sticks. But on
that account no fair inference can be drawn that she knew
that they had all gathered to commit the murder of Kunwar
Singh. The Court cannot heap one assumption on another to
give to Violet’s conduct a meaning which it does not
naturally
623
bear. The Words of Violet are at best in the nature of a
circumstance and they do not, without more, necessarily
justify the inference that she was a party to the murderous
design. [625G-H]
(iv) The High Court found fault with Violet for not having
offered any explanation during the trial as to why she
uttered the particular words. This approach is
impermissible. The burden was on the prosecution to
establish its case and no adverse inference could be raised
against Violet for her failure to explain her utterance.
Besides, an accused cannot while being examined under
section 342 of the Code of Criminal Procedure be subjected
to cross-examination and a bald assertion to explain a piece
of conduct almost always fails to convince.. Therefore, it
is not possible to agree with the High Court that Violet
would not have announced the arrival of Kunwar Singh "unless
she was aware that the accused persons were lying in wait on
the other side of the road and it was necessary to inform
them so that they might accomplish their aim." [626D-F] ,
(v) Shri Ram, along with Ram Chandra, had moved an
application ’,before the Additional District Magistrate
(Judicial) who was conducting the committal proceedings that
he was not known to the witnesses and therefore he should be
put up for being identified in ’an identification parade.
The Public Prosecutor objected to that request.. The learned
Magistrate upheld the objection and refused to direct that a
parade be held. The circumstance that Shri Ram had
voluntarily accepted the risk of being identified in a
parade but was denied that opportunity was an important
point in his favour. The High Court rejected it as
inconsequential by observing that the oral testimony of
witnesses, even if not tested by holding an identification
parade, can be made the basis of conviction if the request
made by the accused is groundless and the witnesses knew the
accused prior to the occurrence. It is correct to say that
no rule of law requires that the oral testimony of a witness
should be corroborated by evidence of identification. In
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
fact, evidence of identification is itself a weak type of
evidence. But the point of the matter is that the court
which acquitted Shri Ram was justifiably influenced by the
consideration that though at the earliest stage he had asked
that an identification parade be held, the demand was
opposed by the prosecution and the parade was therefore not
held. But that is not the only point in favour of Shri Ram.
Brijendra Singh who was riding on bicycle in the company of
the deceased did not implicate Shri Ram. It was the other
lawyer, Om Prakash Dubey, who implicated him. His evidence
shows that it would be unsafe to rely on his capacity or
ability to identify Shri Ram. Sone Lal who gave the First
Information Report at the police also implicated Shri Ram.
Sone Lal’s evidence is insufficient to sustain the
conviction of Shri Ram. In view of the serious infirmities
from which the evidence of Dubey suffers, the High Court
ought not to have interfered with the order of acquittal
passed by the trial court in favour
Shri Ram. [626-627C; 628A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 142 &
205 of 1973.
Appeals from the Judgment and Order dated the 12th April
1973 of the Allahabad High Court in Govt. Appeal No.
2847/72 and by Special Leave from the Judgment and order
dated the 12th April, 1973 in Crl. A. No. 1954 of 1972 and
Ref. No. 87 respectively.
D. B. Mukherjee, K. C. Agarwal, M. M. L. Srivastava and E.
C., Agarwala, for the appellant.
D. P. Uniyal and O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-These two appeals by special leave arise out
of the judgment of the High Court of Allahabad dated April
12, 1975. Three brothers by the name of Sia Ram, Shri Ram
and Ram Chandra; a woman by the name of Violet; and her son
Ramesh were tried by.
9-L319Sup. CI/75
624
the learned Sessions Judge Farrukhabad, in connection with
the murder of one Kunwar Singh. The learned Judge convicted
Sia Ram under section 302, Penal Code and sentenced him to
death. Violet was convicted, under section 302 read with
section 109 and was sentenced to imprisonment for life. The
remaining three accused were acquitted by the Sessions
Court. Sia Ram and Violet challenged their conviction by
filing an appeal in the High Court while the State of U.P.
filed an appeal against the acquittal of Shri Ram, Ram
Chandra and Ramesh. The High Court confirmed the conviction
and sentence of Sia Ram and Violet. It dismissed the appeal
filed by the State Government except in regard to Shri Ram
whom it convicted under section 302 read with section 109.
He was sentenced to imprisonment for life.
The incident in question took place at about 5 p.m. on
October 20, 1970. The deceased Kunwar Singh was a
practising lawyer and after finishing his work for the day
he left the Fatehgarh court along with the brother-lawyers,
Brijendra Singh Yadav and Om Prakash Dubey. They were
proceeding on their bicycles and as they reached a spot near
Barhpur Block, Violet is alleged to have shouted : "The
Vakil has come". Sia Ram and his companions who were hiding
behind a Shisham tree came out and confronted Kunwar Singh
and his companions. Sia Ram, Ram Chandra and Shri Ram are
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
alleged to have been armed with guns while Ramesh and an
unknown person were carrying hockey sticks. Sia Ram fired a
shot from a point blank range as a result of which Kunwar
Singh fell down. All the accused thereafter ran away.
Brijendra Singh removed Kunwar Singh to a nursing home but
the latter succumbed to his injury at 5-25 p.m. The other
lawyer, Om Prakash Dubey, contacted the District Magistrate
and the Superintendent of Police vainly attempting to have
the dying declaration of Kunwar Singh recorded.
A person called Soney Lal, also alleged to be an eye-
witness, lodged the First Information Report at the police
station at about 5-45 p.m. The Superintendent of Police K.
N. Daruwala reached the spot of occurrence shortly before 6
p.m. R. N. Singh, the Sub-Inspector, held an inquest on the
dead body of Kunwar Singh and sent it for postmortem
examination. Dr. Rizvi who performed the postmortem
examination found. a firearm wound on the left upper chest
of the deceased. There were tattooing, and scorching marks
around the injury.
The evidence of Brijendra Singh Yadav (P.W. 4) is clear on
the part played by the appellant Sia Ram. That evidence
shows that Sia Ram fired a shot from his gun as a result of
which Kunwar Singh fell down and died within half an hour,
Brijendra Singh’s evidence has been accepted by both the
courts and we are unable to see any valid reason for
rejecting it. Brijendra Singh is a natural witness for he,
like the deceased Kunwar Singh, had left the court after the
court hours. Apart from the fact that he was a colleague of
the deceased he was not in any manner concerned with the
deep-seated enmity between the appellant Sia Ram and the
deceased. The order of conviction and,sentence in regard to
Sia Ram must therefore be confirmed.
625
Different considerations, however, arise in regard to
Violet. The only part attributed to her is that on seeing
Kunwar Singh she shouted: "The Vakil has come". It is
difficult to believe that Violet was assigned the particular
role, especially when Sia Ram and his companions could
themselves have detected the presence of Kunwar Singh more
easily and with lesser ado. Violet’s brother Ramesh, a lad
of 16, could have with greater ease and effectiveness played
the swift role of alerting the assailants of Kunwar Singh.
But the Sessions Court and the High Court have accepted the
evidence that Violet did give the particular shout and in
accordance with our usual practice we would not like to take
a different view of these simple facts.
The question which then- arises for consideration, a
question to which the Sessions Court and the High Court have
not paid enough attention, is whether the only inference
which arises from the fact that violet gave the particular
shout is that by so doing, she intended to facilitate the
murder of Kunwar Singh,, Section 107 of the Penal Code which
defines abetment provides to the extent material that a
person abets the doing of a thing who "Intentionally aides,
by any act or illegal omission, the doing of that thing."
Explanation 2 to the section says that "Whoever, either
prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act,
and thereby facilitates the commission thereof, is said to
and the doing of that act." Thus, in order to constitute
abetment, the abettor must be shown to have "intentionally"
aided the commission of the crime. Mere proof that the
crime charged could not have been committed without the
interposition of the alleged abettor is not enough
compliance with the requirements of section 107. A person
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
may, for example, invite another casually or for a friendly
purpose and that may facilitate the murder- of the invite.
But unless the invitation was extended with intent to
facilitate the commission of the murder, the person inviting
cannot be said to have abetted the murder. It is not enough
that an act on the part of the alleged abettor happens to
facilitate the commission of the crime. Intentional aiding
and therefore active complicity is the gist of the offence
of abetment under the, third paragraph of section 107.
Apart from the words attributed to Violet, there is nothing
at all to show that she was aware of the nefarious design of
Sia Ram and his associates. Violet who was working as a
Nurse with a doctor was friendly with Sia Ram who was his
compounder but that may rather explain why, if at all, she
agreed to do as directed. Learned counsel for the State
contended that Sia Ram and his companions were carrying guns
and hockey sticks and therefore she would know that they had
all gathered to commit the murder of Kunwar Singh. That is
a far not a fair inference to draw. We cannot heap one
assumption on another to give, to Violet’s conduct a meaning
which it does not naturally bear. The words of Violet are
at best in the nature, of a circumstance and they do not,
without more, necessarily justify the inference that she was
a party to the murderous design.
6 26
The High Court concluded on the complicity of Violet by a
process of reasoning which does not commend to us. It says
"In case Smt. Violet had not given intimation
of-the arrival of the advocate, the persons
concealing themselves behind the SHISHAM tree
may not have noticed the arrival of kunwar
Singh in time to assault him. In case the,
accused were not assisted by Smt. Violet,
they would have to sit in such a manner that
they could watch persons moving about on the
road. They could not have concealed their
identity completely. They could realise that
if they were not assisted by Smt. Violet and
they had to act on their own, the deceased may
notice their presence and may not proceed
further. In case the accused persons
concealed themselves thoroughly, they may not
notice the arrival of the deceased in time to
successfully aim at him. Assistance asked for
and rendered by Smt. Violet was real and
valuable."
This chain of reasoning contains a
multiplicity of inferences hardly
justified by the solitary circumstance that Violet informed
Sia Ram and his colleagues of the presence of Kunwar Singh.
The High Court found fault with Violet for not having
offered any explanation during the trial as to why she
uttered the particular words. This approach is
impermeable. The burden was on the prosecution to establish
its case and no adverse inference could be raised against
Violet for her failure to explain her utterance. Besides,
an accused cannot while being examined under section 342 of
the Code of Criminal Procedure be subjected. to cross
examination and a bald assertion to explain a piece of
conduct almost always fails to convince. We are,
accordingly, unable to agree with the- High Court that
Violet would not have announced the arrival of Kunwar Singh
" unless she was aware that the accused persons were lying
in wait on the other side of the road and it was necessary
to inform them so that they might accomplish their aim".
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
In regard to Shri Ram, yet different considerations prevail
because the High Court was dealing with an appeal against an
order of acquittal in his favour. There are certain
important considerations which lend weight to the view of
the trial court-that it was unsafe to convict Shri Ram.
Shri Ram, along with Ram Chandra, had moved an application
before the Additional District Magistrate (Judicial) who was
conducting the committal proceedings that he was not known
to the witnesses and therefore he should be put up for being
identified in an identification parade. The Public
Prosecutor objected to that request. The learned Magistrate
upheld the objection and refused to direct that a parade be
held. The circumstance that Shri Ram had voluntarily
accepted the risk of being identified, in a parade-but was
denied that opportunity was an important point in his
favour. The High
627
Court rejected it was inconsequential by observing that the
oral testimony of witnesses even if not tested by holding an
identification parade, can be made the basis of conviction
if the request made by the accused is groundless and the
witnesses knew the accused prior to the occurrence. It is
correct to say that no rule of law requires that the oral
testimony of a witness should be corroborated by evidence of
identification. In fact, evidence of identification is
itself a weak type of evidence. But the point of the matter
is that the court which acquitted Shri Ram was justifiably
influenced by the consideration that though at the earliest
stage he had asked that an identification parade be held,
the- demand was, opposed by the prosecution and the parade
was there
fore not held,
That is not the only point in favour of Shri Ram. Brijendra
Singh Yadav who was riding on the Bicycle in the company of
the deceased, Kunwar Singh did not implicate Shri Ram. It
is the other lawyer, Om Prakash Dubey, who stated in his
evidence that Shri Ram was armed with a gun and he emerged
from behind the Shisham trees after Violet gave the call.
Dubey is a practising lawyer and we will spare hard words.
But his evidence leaves much to be desired and, at the
least, it shows that it would be unsafe to reply on his
capacity or ability to identify Shri Ram. In paragraph 4 of
his evidence, repeated attempts were made by counsel for
Shri tam to test the claim of Om Prakash Dubey that he knew
Shri Ram and was therefore able to identify him. Question
after question put in cross-examination was answered by the
witness by saying either that he did not remember or that he
did not know. Dubey claimed that he had appeared for the
complainant in a prosecution arising out of the murder of
one Hari Singh in which Shri Ram figured as an accused.
There were two other accused in that case called. Manphool’
and ’Balister. Dubey admitted that he, could not say if. he
would be able to recognise Balister and that it was possible
that he may not be able ’to recognise Manphool. It is
doubtful whether Dubey appeared in the case at all, which
explains why he made the guarded statement that he. had
appeared on behalf of the complainant in so far as he could
remember. He was unable to say who had engaged him or who
appeared the case along with him or who was examined as a
witness in the case or who used to instruct him in the case.
Enveloped in this atmosphere of doubt, Dubey thought the
better of it to say : "I think I had filed my Vakalatnama in
that case". The young Dubey had a standing of but 2 years
in the District when he is supposed to have appeared for the
complainant in the particular case. It is unrealistic to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
assume that he was so flooded with work that he could
remember no details of an important murder trial.
628
Soney Lal who gave the First Information Report.at the
police station, also implicated. Shri Ram but, apparently,
the High Court was not impressed by his evidence. has
relied on the evidence of Om Prakash- Dubey in order to hold
that Shri Ram had played an important role in the murder of
Kunwar Singh. Considering the serious infirmities from
which the evidence of Dubey suffers we are of the opinion
that the High Court ought not to have interfered with the
order of acquittal passed, by the trial. court, in favour of
Shri Ram. Soney Lal’s evidence seems to us insufficient to
sustain the conviction of Shri Ram.
In the result we dismiss the appeal of Sia Ram and confirm
his conviction and sentence. We allow the appeals of Violet
and Shri Ram and acquit them. These two shall be set at
liberty forthwith.
V.M.K. Appeals partly allowed.
629