SUPREME COURT OF INDIA
State of Uttar Pradesh
Vs
Ganga Ram
Criminal Appeal No. 660 of 1999
(H.K.Sema and P.P.Naolekar)
25/10/2005
H.K. SEMA, J.
1. Four accused, A-1 Ganga Ram, A-2 Raghubir, A-3 Lal Singh and A-4 Rajendra Singh
were put to trial before the Trial Court for the murder of deceased-Tula Ram
under Section 302/34 IPC. The Trial Court convicted all of them under Section
302 read with Section 34 IPC and sentenced them to rigorous imprisonment for
life.
2. On appeal, the High Court acquitted all of them. Hence, this appeal by
special leave by the State of U.P. During the pendency of the appeal, A.2-
Raghubir and A.3-Lal Singh expired. The appeal against them already stands
abated. This appeal, therefore, is survived qua A.1-Ganga Ram and A.4-Rajendra
Singh. It may be noted that A.1-Ganga Ram and A.2-Raghubir are real brothers
and A.3- Lal Singh and A.4-Rajendra Singh are real brothers. Facts may be noted
briefly:-
P.W.3-Rajendra Singh filed a complaint case against the accused persons
Rajendra Singh and Lal Singh in the Court of Special Judicial Magistrate,
Bareilly, in which the deceased-Tula Ram was cited as one of the witnesses. On
27.7.1978, the deceased-Tula Ram had gone to depose in the said complaint case
against the accused Rajendra Singh and Lal Singh. It is alleged that the
accused persons had threatened on several occasions not to appear as a witness
but deceased-Tula Ram was determined to give statement. On 27.7.1978 at about
5.15 p.m. when the informant PW-1 Dhakan Lal (father of the deceased),
P.W.2-Hemraj, the deceased-Tula Ram were coming back to their village from the
bus-adda, Meerganj, the informant and others stopped at the Meerganj Sindhauli
road in the jungle of Kalyanpur to smoke bidi. The deceased-Tula Ram went about
fifty-sixty steps ahead of them. Accused Raghubir armed with single barrel gun
(SBBL gun), accused-Lal Singh armed with double barrel gun (DBBL gun), accused
- Ganga Ram and accused-Rajendra Singh armed with Tamancha (country made pistol)
emerged from behind the stones heaped at the road.
3. Accused Lal Singh told the deceased-Tula Ram that he had been warned not to
appear as a witness but he was adamant and therefore he should not be left and
should be killed. Thereupon Raghubir and Lal Singh made one fire each at Tula
Ram with their respective weapons. Tula Ram fell down on the road. When the
informant and others raised an alarm, the accused persons ran away towards
west. P.W.1-Dhakan Lal left behind P.W.2-Hemraj near the dead body and he got
the FIR written by P.W.3-Rajendra Singh and lodged the FIR at police station,
Meerganj. A case was registered under the aforesaid Sections of Law and after
the completion of the trial; the Trial Court recorded the conviction as above.
P.W.4 - Dr. I.S. Tomar, conducted the autopsy on the dead body and prepared the
postmortem report (Ex.Ka-3). He found the following antimortem injuries on the
dead body of the deceased:.
"1. 9 gunshot wounds on the right side of chest in an area of 14 cm x 8
cm. 2 cm below the right nipple and were extarded upto the lower part of the
central bone of the chest. Each wound was 0.8 cm x 0.8 cm x chest deep in size
and the edges of the wounds were parted and turned inverted. There was no
blackening and burning around the wounds. The direction of the wounds was from
right to left and to backside.
2. Scratch 2 cm x .5 cm on the left side of chest below the collar bone.
3. Internal examination.
1. The fourth, fifth and sixth step bone on the right side was fractured due to
injury
2. Both lungs and the membranes above them were punctured in the middle.
3. The membrane above the heart was punctured through and through in the right
side of heart.
4. There was about 1 litre blood on each side in the chest.
5. There was about 600 cc blood in the perlineal cavity and it was punctured at
one place on the upper side." *
6. Liver was punctured from one to the other and 15 ounce of half digested food
was there.
7. Liver left part was punctured through and through.
8. In my opinion the death occurred due to shock and hemorrhage due to
injuries.
5 Large bullets were extracted from the body of the deceased which were as
under:-
One from the right lung, two from the left lung, one from heart and one from
abdominal cavity. These bullets were sealed at the time of examination. The
clothes of the above deceased, which were 4 in number, were also sealed at the
same time and were sent to S.O. Meerganj.
5. This report was prepared at the time of the examination of the dead body,
which is written and signed by me is and is marked Ex.Ka-3. 6. The injuries of
the deceased were ordinarily enough to cause death. His death could have been
caused at about 5, 5.15 in the evening on 27.7.1978.
6. To bring home the guilt of the accused, the prosecution amongst others
examined two eyewitnesses, P.W.1- Dhakan Lal and P.W.2- Hemraj. Admittedly,
P.W.1- is the father of the deceased and therefore his evidence has to be
weighed with caution. He stated that in a complaint case filed by P.W.-3
against accused Lal Singh and Rajendra Singh, his deceased son Tula Ram was
cited as a witness. He further stated that the accused persons used to ask his
son not to give evidence to which his son used to reply that he would give
evidence and stated the evidence truthfully. PW1-Dhakan Lal was examined on
23.8.1979 for the incident happened on 27.7.1978, he deposed as under:-
"About 1. = year ago my son Tula Ram had come to Bareilly to give evidence
in the said complaint case. I had also later on come to Bareilly on the said
day to fetch medicine for my younger son Chotey Lal. After getting medicines I
reached bus stand to go home, at about 3 in the afternoon. There I met my son
Tula Ram, Sardar Singh and Khem Raj. We all four sat together in the bus to go home.
We alighted on the Meerganj bus stand. It would have been about 4, 4.15 p.m. We
started on foot towards our village, while enroute Gaindan lal who is our
brother also met us. He also accompanied us to our village. When we reached
near the boundary of village Nagaliya Kalyanpur on Meerganj Sindholi Road we
halted there to smoke bidi and tobacco. My son Tula Ram does not smoke bidi or
tobacco. He went ahead of us by about 50-60 steps. I saw that all the four
accused persons present in the court came out from the trenches on the western
side of the road among whom Lal Singh was holding a double barrel gun,
Raghunath was holding a single barrel gun and Ganga Ram and Rajender had
country made pistols in their hands. Accused Lal Singh said to my son that you
did not stop from giving evidence and we kill you today. Then our son started
running towards us. Just then accused persons Raghubir and Lal Singh fired at
our son with the guns. On being hit he fell down there on the road on the
western side. On our shouting all the accused persons present in the court ran
away through the sugarcane fields on western side.
7. When we reached near Tula Ram by that time he had died. After leaving all my
three above companions near the dead body I reached P.S. Meerganj on foot which
is about 1.1/2 mile from there, wrong when I reached Meerganj town there
Rajender Singh of Hurharri near the Dharamsala I dictated him all the incident
on a paper, whatever I dictated he wrote and made me affix my thumb impression.
The written report was read over to the witness and he said that it is correct
and bears my signatures. It was marked Ex.Ka.1 I submitted this report in P.S.
Meerganj on the basis of which my report was recorded and copy was given to
me."
8. This witness was subjected to lengthy cross-examination running into twenty
pages. We have been taken through the entire deposition of the witness in-chief
as well as in cross-examination. We are surprised to notice that not even a
suggestion was put to witness denying the presence of the accused at the place
of occurrence and weapons carried by each accused as described by P.W.1,
therefore, the substance of acquisition against the accused made in-chief of
P.W.1 remains unimpeached.
9. P.W.2 - Hemraj, is another eyewitness, who is the resident of the same
village. He stated that he had also gone to Bareilly to give evidence along
with the deceased-Tula Ram and was coming back from there. He stated as under:-
"We started on foot from Meerganj bus stand to our village at about 4,
4.30 in the evening. We were going on the metalled road leading from Meerganj
to Sindholi. We all the five were going together and halted near the kilu to
smoke biri. Tula Ram did not stop but kept on going ahead and went about 50-60
steps ahead of us. We also immediately started going ahead after lighting our
biries and then saw that accused persons present in the court Rajender Singh,
Lal Singh, Raghubir Singh and Ganga Ram among whom Raghubir Singh holding a
single barrel gun, Lal Singh holding a double barrel gun and the remaining two
accused persons holding country made pistols came on the road side from behind
the stones and trenches on the western side of the road and Lal Singh
challenged Tula Ram and said that you were asked not to give evidence but you did
not agree, we will kill you. Saying this accused persons Lal Singh and Raghubir
Singh fired with their guns being hit with which Tula Ram fell down there. We
shouted and then the accused persons aimed the barrels of their guns at us and
ran towards the western side. Then we went near Tula Ram who was dead. At the
time of occurrence none other than we four witnesses and the deceased had come
there. Dhankan Lal went to the police station to register the report and we
three remained guarding the dead body. Gaindan Lal was sent to home to
inform." *
10. This witness also was subjected to lengthy cross-examination but nothing
could be elicited from his mouth to discredit his testimony in-chief. In fact,
no question or not even a suggestion, was put to this witness to demolish the
substance of the testimony about the factum of the incident, lucidly narrated
by him, which inspires confidence. The testimony of P.W.1 and P.W.2 as quoted
above is well corroborated by the medical evidence and the post mortem report
conducted by P.W.4 Dr.I.S. Tomar, in material particulars. One of the grounds,
on which the High Court, recorded acquittal of the accused was that the
occurrence is stated to have taken place on a pucca road on which
bullock-carts, buses and other vehicles also go. The time is also of 5.15 p.m.
but no outsider or pedestrian or resident of the vicinity has been named in the
FIR or in the statement of the witnesses but only P.W.2- Hemraj has been
examined as an independent witness. This ground, taken by the High Court, is
far-fetched and contrary to the testimony of eyewitnesses. This can be hardly a
ground to disbelieve the otherwise creditworthy testimony, which inspired
confidence. It is now well-settled principle of law that whom to cite as a
witness and whom not is within the domain of the prosecution. It is also well
settled principle that the prosecution evidence has to be weighed and not to be
counted. It is just because any other pedestrian or resident of the vicinity
has not been cited as witnesses will be no ground to throw away the otherwise
reliable testimony of the eyewitnesses which is natural and inspires
confidence. There is no evidence on record to show that there were other
pedestrian or resident of the vicinity present at the relevant time, besides
the prosecution witnesses.
11. In our view, the aforesaid reason by the High Court is based on conjectures
and surmises and is perverse. The second ground, on which the High Court,
recorded acquittal is that P.W.1-Dhakan Lal has stated in cross-examination
that at about 9.00 A.M. he himself had gone to Bareilly to purchase medicine
for his younger son Chhotey Lal as there was ulcer in the ear of Chhotey Lal.
What was the age of Chhotey Lal was not clear. The High Court has ultimately
held as under:-
"What prohibited Tula Ram to purchase medicine for his younger brother
and if Tula Ram was going to Bareilly a bit earlier what was the necessity of
the complainant to have gone to Bareilly to purchase the medicine for his
younger son. This is not the case of prosecution that Tula Ram had refused to
bring any medicine or if asked, he would not have brought the medicine.
Therefore, the natural conduct shall be, if actually, the younger son of the
complainant was ill and Tula Ram was actually going to Bareilly, he would have
brought the medicine. There was no necessity for Dhakan Lal to have gone to
Bareilly." *
12. It will be noticed that P.W.1 had stated in cross-examination that he does
not know that at what time on that day his deceased son Tula Ram had gone to
Bareilly from home to give evidence because he had gone to the field in the
morning. When he returned from the field he came to know from the children that
at about 8.00 in the morning Tula Ram had gone to Bareilly to give evidence. He
further stated that Tula Ram did not tell him earlier that he had to go to
Bareilly to give evidence. We notice with dismay the findings recorded by the
High Court, which are contrary to the evidence on record, based on surmises and
conjectures. The way the High Court appreciated the prosecution evidence is in
the form of cross-examination of the prosecution witnesses. The evidence must
be read and appreciated as it is. Nothing can be read to the evidence. The High
Court has also recorded as under:-
"All the two witnesses examined in the case are chance witnesses. They
are inimical and interested witnesses. Their presence on the spot is highly
doubtful. It is apparent that they did not see the occurrence and had named the
accused persons out of animosity." *
13. We are unable to discern the reasoning of the High Court. Both the
eyewitnesses had stated that they travelled together with the deceased and were
coming back together with the deceased from Bareilly where the incident had
taken place and narrated the entire story as aforesaid. The High Court has
recorded their presence on the spot doubtful without assigning any reason. The
High Court was also of the view that they did not see the occurrence and had
named the accused persons out of animosity without assigning any reason.
Learned Counsel for the respondents submitted that in any event the two accused
namely Raghubir and Lal Singh, who have been described as actual assailants,
have expired and no active part has been attributed to the appellants namely
Ganga Ram and Rajendra Singh, they are entitled to be acquitted. In this
connection, learned counsel has relied upon the decision of this Court rendered
in Mithu Singh Vs. State of Punjab, 16, where
this Court has held that to substantiate a charge under Section 302 with the
aid of Section 34 it must be shown that the criminal act complained against was
done by one of the accused persons in furtherance of the common intention of
both. An inference as to the intention shall have to be drawn from the acts or
conduct of the accused or other relevant circumstances, as available. No
quarrel over the proposition of Law.
14. Reliance has also been placed on the decision of this Court rendered in
State of Rajasthan vs. Kishan Singh & Ors., 17,
where this Court has held that two of the accused were also tried for
substantive offence under Section 302 and the Trial Court acquitted the two
accused who were tried for substantive offence under Section 302 and convicted
the remaining three under Section 302 with the aid of Section 34. It was held
that since the charge on substantive offence under Section 302 has not been
established, the conviction of the other accused under Section 302 read with 34
was not maintainable. In our view, the aforesaid decisions cited by the learned
counsel are of no help to the accused. This submission, in our view, is totally
misconceived. In the present case, the conviction recorded by the Trial Court
was under Section 302 with the aid of Section 34. The two accused armed with
country made pistols accompanied the other accused armed with SBBL gun and DBBL
gun respectively went to the place of occurrence, way laid the deceased and
party and attacked the deceased. It cannot be said that they accompanied the
other accused as an idle curiosity.
15. The aforesaid circumstances, would clearly infer the intention of the
present two accused for committing an offence in furtherance of common
intention. Their conviction under Section 302 with the aid of Section 34 cannot
be said to be unjustified. In the premises aforestated this appeal is allowed.
The order of acquittal recorded by the High Court is set-aside. The order of
conviction recorded by the Trial Court is restored. The respondents namely
Ganga Ram and Rajendra Singh are directed to be taken back into custody
forthwith to serve out the remaining part of sentence. Compliance report should
be sent to this Court within one month.