Shiam and Another vs State of U.P.

R.K. Shukla, J.—Shiam and Ritthu Appellants have preferred this appeal against the judgment and order dated 14-11-1977, passed by the Sessions Judge, Dehradun, whereby he has convicted and sentenced Ritthu Appellant under Sections 302 and 323 IPC and sentenced him to imprisonment for life and six months'' R.I. respectively on the aforesaid counts. Shiam Appellant has been convicted of the offence u/s 323 IPC and sentenced to six months'' R.I. The other three accused, namely, Ashok, Kalu and Dallu have been acquitted of all the charges levelled against them.

Brief facts of the prosecution case are that on 17-8-76 Inder Singh PW 1 complainant and Kundan (deceased) had gone to see the Janmashtami fair in Raipur. When they reached the canal bridge at about 5 p.m., the aforesaid five accused, one Anup and two or three other persons met them. Among them Ritthu, Shiam and Anup had Lathis while others were empty handed. They remonstrated the complainant and Kundan (deceased) that they acted as informers against their friends, Baru acd Shashi on which an altercation followed. Complainant Inder Singh and Kundan (deceased) were then attacked by the aforesaid 8-9 persons with Lathis, kicks and fists. Kundan died at the spot while Inder Singh complainant sustained several injuries. On their alarm the witnesses, Laxman Singh PW 2, Prem Dutt Sharma PW 6 and Inder Singh PW 7 arrived. It is further alleged that Appellant Ritthu threw Kundan deceased into canal shouting that he had laid him cold and he cared little for being hanged. Thereafter all the accused escaped. Then Inder Singh complainant got an FIR written by Bharat Singh and lodged it at police station Dalanwala at 5.50 p.m. on the same day. A case was registered and investigation started by Sri Anand Swarop Sharma PW 9. The statement of the complainant was recorded by him at the police station and Shiv Raj Singh, S.I. PW 8 was sent to the place of occurrence. The I.O. also reached the place of occurrence. After some time the dead body of Kundan was recovered from a lower point of the canal and formalities of the inquest report etc. were done by Shiv Raj Singh, S.I. PW 8. Thereafter the dead body was sent for post mortem examination.

Sri Inder Singh complainant PW 1 was medically examined by Dr. R.N. Singh, Medical Officer, Dehradun at about 6.20 p.m. on 17-8-76 and eight fresh injuries were found on his person. Out of whom two are lacerated wounds, two incised wounds, one abrasion and three are contusions. Injuries Nos. 4 and 5 were kept under observation and X-ray of skull and elbow were advised. The aforesaid injuries are noted down by the doctor in the injury report, Ex. ka-10.

The post mortem on the dead body of Kundan was performed at 2 p.m. on 18-8-76 and the doctor found the following ante mortem injuries on the dead body of the deceased:

Bluish swelling 5 cm x 4 cm over right upper eye lid,

Swelling traumatic 4 cm x 3 cm over right forehead just above eye brow.

On internal examination the doctor found scalp skull bones (vertex): Fracture (Anterio-posterior) involving whole of frontal bone right side and whole of parietal bone right fracture. It was opined by the doctor that the death had occurred due to shock and haemorrhage as a result of injuries in the head. The post mortem examination report was not disputed, hence the doctor was not produced and it has been exhibited as Ex. ka-23.

After completion of the investigation six persons were sent up for trial. Out of whom four, namely, Ritthu, Dallu, Shiam and Anup were stated as absconding. Later on the first three had appeared in the trial court and only Anup remained absconding. Thus in this trial five persons mentioned above were tried.

The prosecution has examined nine witnesses in support of its case. Out of whom Inder Singh PW 1 complainant, Laxman Singh PW 2, Prem Dutt Sharma PW 6 and Inder Singh PW 7 are the eye witnesses of the occurrence. Rest of the witnesses are the aforesaid doctor, I.O. and other police officials, who are formal in nature.

The accused persons pleaded not guilty and stated that they have been falsely implicated due to enmity. It has also been stated by them that Kundan (deceased) was a bad character and he and Inder Singh complainant used to snatch money from the accused, whereupon Ritthu Appellant had warned him. In support of their defence they have produced Syed Azahar DW 1, Abhi Lal Sharma DW 2 and Sukhpal Singh DW 3.

After discussing the entire evidence on the record the learned Sessions Judge has acquitted accused Ashok, Kallu and Dallu of all the charges levelled against them; but has convicted and sentenced Ritthu and Shiam Appellants as aforesaid.

Sri V.S. Jauhari, learned Counsel for the Appellants has vehemently urged before us that since the three accused have been acquitted, therefore, conviction of the two Appellants on the same evidence is not justified. We find no force in this argument. It is very well settled by the decision of the Supreme Court in the case of Ugar Ahir and Others Vs. The State of Bihar, that the maxim ''falsus in uno, falsus in omnibus'' (false in one thing false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroiders or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and separate the grain from the Chaff.

The aforesaid prosecution story regarding the Appellants finds full corroboration from the statements of the four eye witnesses, namely, Inder Singh complainant PW 1, Laxman Singh PW 2, Prem Dutt Sharma PW 6 and Inder Singh PW 7. Inder Singh PW 1 is the complainant, who has received eight injuries in this incident which are noted in the injury report, Ex. ka-10. Therefore, his presence on the spot at the time of the occurrence cannot be doubted. He has narrated the whole occurrence and proved the FIR, Ex ka-9. Laxman Singh PW 2 claims to have seen this occurrence from near a neighbouring shop and has described the same in detail. Prem Dutt Sharma PW 6 also claims to have gone to the Mela and seen the occurrence. He fully supported the prosecution version regarding these two Appellants. The same is the case with Sri Inder Singh PW 7 son of Chait Singh, who had also gone to Mela at Raipur and saw the occurrence. Nothing has been brought out in their statements, which may cast any reflection regarding the truthfulness of their statements in connection with the part played by these two Appellants in this case.

The statement of the aforesaid eye witnesses finds full corrboration from the medical evidence including the injury report of Inder Singh complainant, Ex. ka-10 and the post mortem examination report of Kundan (deceased), Ex. ka-23 as well as from the statement of Dr. R.N. Singh PW 4, who examined the injuries of Inder Singh PW 1.

Now the only question left for our determination is as to what offence has been made out against the Appellants. First of all we would like to discuss the case of both the Appellants for causing injuries to the complainant, Inder Singh PW 1, who has received eight injuries in this very incident, which are mentioned in the injury report, Ex. ka-10 and have been fully proved by Dr. R.N. Singh PW 4. In the opinion of the doctor all the injuries were fresh and could be caused at 5 p.m., as alleged by the prosecution. There is no doubt that the doctor has stated that injuries Nos. 4 and 8 were caused by some sharp edged weapon but none of the witnesses has stated that any of the assailants had any sharp edged weapon. Injury No. 4 is an incised wound 10 cm x 1 cm x skin deep, 5 cm above the right ear and injury No. 8 is also an incised wound 4 cm x 4 1/2 cm x skin deep on the back side of head. Both the injuries are on bony part. It could be caused by simple Lathis when there are any iron part attached with it. Some time simple Lathis can also cause cut wounds particularly when they are inflicted on bony part as has been done in this case. Modi has also observed in his Medical Jurisprudence and Toxicology (20th Edition) at page 215 as under:

Occasionally, on wounds produced by a blunt weapon or by a fall the skin splits and may look like incised wounds when inflicted on tense structures covering the bones, such as the scalp, eyebrow, illiac crests, shin, perineum etc., or by a fall on the knee or elbow when the limb is flexed.

After careful scrutiny of the evidence of PWs 1, 2, 5 and 7 as well as medical evidence, we are fully satisfied that the prosecution has fully proved its case against both the Appellants beyond reasonable doubt so far the injuries of Inder Singh complainant are concerned. Thus the conviction of both the Appellants u/s 323 IPC and sentence of six months'' R.I. imposed on them by the trial court for causing injuries to Inder Singh complainant are fully justified and need no interference by this Court.

Now we will take up the case of Ritthu Appellant, who has been convicted u/s 302 IPC by the trial court for committing the murder of Kundan (deceased). It is quite clear that all the five accused were charged u/s 302/149 IPC for committing the murder of Kundan (deceased), out of whom four have been acquitted of the said charge. No Government appeal has been filed against their acquittal.

From the evidence referred to above, it is clear that the case of the prosecution has fully failed on all counts against three accused. No Government appeal has been filed against them, Ritthu Appellant has been convicted under Sections 302 and 323 IPC simpliciter and Shiam Appellant has been convicted only u/s 323 IPC for causing injuries to Inder Singh complainant PW 1. No Government appeal has been filed against any of the accused including the Appellants, who were charged u/s 302/149 IPC. In such circumstances, it is not permissible to invoke Section 149 IPC. It is very well established that Section 149 IPC, constitutes a substantive offence and it is not correct to say that it is only an enabling section for imposition of vicarious liability. There is legal distinction between a charge u/s 302 IPC and a charge of constructive liability u/s 302/149 IPC, i.e., being the member of an unlawful assembly a common object of which was to kill the deceased. In such situation both the Appellants would accordingly be responsible for the offence, if any, which could be shown to have been committed by them without regard to the participation of others. Section 34 IPC has also not been applied by the trial court in the case of these two Appellants. Consequently Shiam has not been convicted u/s 302 IPC for causing injuries to Kundan (deceased). No Government appeal has been filed against Shiam Appellant for his acquittal of the charge u/s 302/149 IPC or in the alternative 302/34 IPC. In such situation Section 34 IPC is also of no help to the prosecution.

In the aforesaid back ground when we turn to find out the part played by Ritthu Appellant in committing the murder of Kundan (deceased), we find that he has inflicted some injuries. Kundan (deceased) had received only two injuries on his body. The cause of death as noted down in the post mortem examination report, Ex. Ka-23 is due to shock and haemorrhage as a result of the injury over his head, which has caused fracture of skull bones. It is not known as to who has caused that fatal head injury to Kundan (deceased). The other injury on the body of Kundan (deceased) is only traumatic swelling 4 cm x 3 cm over right forehead just above eye brow. There is no other injury on his body. In such circumstances, the conclusion is inescapable that Ritthu Appellant alone cannot be convicted u/s 302 IPC. He would only be liable for the individual act which he might have committed in respect of the assault on Kundan (deceased). According to the evidence on the record, both the Appellants were armed with Lathis and are said to have assaulted the deceased with their respective Lathis. The learned Sessions Judge has wrongly held that it is just possible that both the blows had been given to Kundan by Ritthu Appellant. There is no doubt that all the eye witnesses have stated that many blows were given to Kundan (deceased) by the assailants. The post mortem examination report shows that only two and not more blows were given to him. Under these circumstances we can safely conclude that only two and not more blows were given to Kundan and if more blows were given, they did not strike him. The learned Sessions Judge has held that in such circumstances it is not certain if any blow of Shiam Appellant struck Kundan (deceased), nor is there any material on file for a definite conclusion that Shiam Appellant intended the death of Kundan. It has also been held by the learned Sessions Judge that it was not a case of pre-planned attack. Therefore, Shiam is not responsible for murder of Kundan. The intention of Ritthu Appellant has been inferred by the learned Sessions Judge by three things: (i) he remonstrated the victim for their Mukhbiri, (ii) he gave Lathi blows to both the victims, which were such as were sufficient in ordinary course of nature to cause death, and (iii) the intention of the Appellant is further evidenced by shouting that he had laid him cold and he cared little for being hanged, and he threw Kundan into the canal. The learned Sessions Judge has convicted the Appellant Ritthu u/s 302 IPC. In absence of any definite proof that fatal head injury on the victim was caused by Ritthu Appellant, we find it difficult to hold that he is liable for conviction u/s 302 IPC.

Then we have to find out as to what offence has been made out against Ritthu Appellant. According to the evidence on record Ritthu, Shiam and Anup (absconding) were armed with Dadahs and all of them inflicted them on Kundan (deceased). Inder Singh PW 1 has stated:

Kundan ko pahile sabne mara...Kundan chilla raha tha bachao Ritha adi mar rahe hain. Kundan ko markar nahar ke pani me phek diya. Pani me sirf Ritha ne pheka. Ritha ne Kundan ko nahar me dala tab kaha tujhe to thanda kar diya chahey phansi kyon na lag jaye. Jan se mar kar tab nahar me phenka.

More or less other eye witnesses have also stated the same thing. Inder Singh PW 7 has further stated:

Kundan ne kaha Mujhe bachao Ritha ne mar diya.

After careful scrutiny of the evidence, it is quite clear that Ritthu did cause atleast one of the two injuries found on the head and forehead of Kundan (deceased). On internal examination fracture involving whole of frontal bone right side and whole of parital bone was found. Thus from the nature and places of injuries inflicted, the accused should be presumed to know that their act of inflicting Lathis on head or forehead, which are vital part of the body, is likely to cause the death of the victim There is no doubt that the occurrence took place suddenly in the Mela and murder was not pre-planned. Therefore, from the facts and circumstances of this case we are convinced that Ritthu Appellant is certainly guilty of the offence punishable u/s 304 Part II of the IPC, and a sentence of five years'' R.I. to him will fully meet the ends of justice.

The decision of the Supreme Court in the case of Piara Singh v. State of Punjab 1980 Criminal Appeals Reporter SC 323 relied on by the learned Counsel for the Appellants is distinguishable on facts and it is not necessary to discuss them in detail.

The defence set up by the Appellants has no force. They have examined three DWs Syed. Azahar DW 1 is a Canal Watchman, who was not posted there in those days. He is not a reliable witness. Abhi Lal DW 2 and Sukhpal Singh DW 3 are Head Moharrirs, who have stated that Kundan (deceased) and the complainant Inder Singh were involved in criminal cases. Their evidence does not affect the merit of the prosecution case.

In the result the appeal is allowed to this extent that the conviction of Ritthu Appellant is set aside and he is convicted u/s 304 Part II of the IPC and sentenced to five years'' R.I. on that count. Rest of the convictions and sentences imposed on both the Appellants by the trial court are maintained. Sentences shall run concurrently. The Appellants are on bail. They should be taken into custody forthwith to serve out the sentences according to law.

The Counsel for the Appellant made an oral prayer for leave to appeal to the Supreme Court but since no substantial question of law of general importance is involved in it, his prayer is rejected.