Omkar Singh vs Jaiprakash Narain Singh & Anr.

M. R. Shah, J

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 â€" original accused No.2

and has acquitted him for the offences punishable under Section 302 read with Section 34 of the IPC, the original informant â€" son of the deceased

has preferred the present appeal.

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

2:30Â3:00 am in the night, accused Udaibhan Singh came near his cot and pulled the bedÂsheet on which he and his cousin woke up and his Tau also

woke up. At that moment Jaiprakash Narain Singh @ Lala (AÂ2) exhorted and stated that Paras is lying here come quickly and shoot him on which

Udaibhan Singh (AÂ1) went near the cot of his father Parasnath and shot him with country made pistol on his chest from a pointÂblank 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.

In order to bring the guilt of the accused the prosecution examined PWÂ1 Omkar Singh â€" informant and PWÂ2 Inderdeo Singh and PWÂ4

Vikram Singh (all eye witnesses) and PWÂ3 Dr. P.C. Srivastava who conducted the post mortem of the deceased and PWÂ5 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 PWÂ1, PWÂ2 and PWÂ4 (eye witnesses) the learned Trial Court convicted AÂ1 â€

Udaibhan Singh for the offences punishable under Section 302 of the IPC and AÂ2 â€" 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.

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 Court has though believed the eye witnesses â€" PWÂ1, PWÂ2 and PWÂ4 so far as the AÂ1 â€

Udaibhan is concerned and has confirmed the judgment and order of conviction passed by the learned Trial Court convicting the AÂ1 â€" Udaibhan,

has acquitted AÂ2 â€" 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 â€" father and son are put behind the bars because of the property dispute between the parties.

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.

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 â€" original accused No.2.

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 â€" PW Â1, PWÂ2 & PWÂ4 named respondent No.1 â€" 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 â€" 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 â€" 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.1â€" accused solely on the ground that overt act assigned to respondent

No.1 â€" accused No.2 is of exhortation only and therefore, his involvement appears to be doubtful.

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 PWÂ1, PWÂ2 and PWÂ4, 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 â€

respondent No.1 herein at the place of incident.

Making the above submissions it is prayed to allow the present appeal.

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 â€" accused No.2.

The present appeal is opposed by Shri R.M. Sinha learned counsel appearing on behalf of respondent No.1 â€" accused No.2. It is submitted by

learned counsel appearing on behalf of respondent No.1 â€" accused No.2 that cogent reasons have been given by the High Court while acquitting

respondent No.1 â€" accused for the offence punishable under Section 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 â€" original accused No.2 was exhortation. The High Court has rightly acquitted

respondent No.1 â€" accused for the offences punishable under Section 302/34 of the IPC.

Making the above submissions it is prayed to dismiss the present appeal.

We have heard learned counsel appearing on behalf of the respective parties at length.

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 â€" accused No.2 was named in the FIR. There are three eye witnesses to the incident namely PWÂ1, PWÂ2 and PWÂ4 and all

the prosecution witnesses have named respondent No.1 â€" 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 â€" accused No.2

exhorted his son to kill the deceased and his son â€" 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

â€" PWÂ1, PWÂ2 and PWÂ4 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 â€" 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 confirmed the

conviction of respondent No.1 â€" 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 â€" 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 â€

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 â€" 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 proved and specific role of exhortation was assigned to him, the

High Court ought to have confirmed the conviction of respondent No.1 â€" 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 midÂnight and as observed hereinabove

the motive has been established and proved, the High Court has committed a grave error in acquitting respondent No.1 â€" 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.

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 â€" original accused No.2 â€" 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 â€" original accused No.2 to surrender within a period of four weeks to undergo life imprisonment.