Gopal & Ors. Vs. State of U.P.
EmailAppeal: Criminal Appeal Nos. 492-496 of 1999
Petitioner: Gopal & Ors.
Respondent: State of U.P.
Apeal: Criminal Appeal Nos. 492-496 of 1999
Judges: K.T. THOMAS & R.P. SETHI, JJ.
Date of Judgment: Aug 02, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
a) Section 3 with Criminal Procedure Code, 1973 – Section 154 – Report prepared by police- Column meant for person giving infor-mation, carrying name of other person than the informant – His statement not showing commission of cognizable offence – Not even examined. Held that FIR could not be stated to be ante timed or suppressed. (Paras 6 to 10)
b) Section 9 – Identity – Absence of enough light – Place having two bulbs of 200 watts each, two of 100 watts each and a petromax. Held that the light provided could not be said to be insufficient. (Para 12)
c) Section 9 – Identity – Non-holding of test identification parade (TIP) – PWs having details of name of assailants in FIR itself. Held that there was no occasion for conducting TIP.
Indian Penal Code, 1860
Sections 302, 304 – Deceased inflicted with 2 injuries – Evidence showing that main accused inflicted only one blow – However, both injuries individually sufficient to cause death in the ordinary course of nature – Remaining accused inflicting injuries to others – Difficult to pin point as to who inflicted fatal blow. Held that main accused intended to cause death and he is presumed to have inflicted one of the injuries. Hence, convicted under Sec-tion 302. Rest of them convicted under Section 304 Part II. (Paras 16, 17)
JUDGEMENT:
ORDER
1. A stage show on the night of October 19, 1983 turned into a carnage in which four persons were dead and others were very seriously injured. Virtually a pandemonium broke out when the stage show was in full swing. Some spectators stabbed some others resulting in the aforesaid carnage. The police charge-sheeted seven persons as assailants. When those seven persons were facing trial one of them (A-7 Ali Hasan) died and hence the trial pro-ceeded only in respect of the remaining six persons.The trial Judge convicted all the six persons under Sections 302,307 read with Section 149 of the Indian Penal Code besides the offence of rioting under Section 148 of the Indian Penal Code and has chosen to award the extreme penalty known to law as for all the six per-sons for the major offence.
2. When the convicted persons filed appeals before the High Court they passed through a queer career. At one stage a Division Bench of two Judges of the High Court heard the appeals at great length, but they differed from each other as to the verdict to be pronounced. One of them opined that all the convicted persons are liable to be acquitted in toto while the other Judge was inclined to uphold the conviction. On account of the aforesaid tie the two learned Judges thought it fit to refer the case to a larger Bench of the High Court. Eventually, a Full Bench of three Judges heard all the appeals and as per the unanimous judgment delivered by the Bench the conviction in respect of all the offences was confirmed as against the convicted persons. However, the Bench altered the sentence in respect of the major offence from death penalty to life imprisonment. These appeals are by special leave at the instance of those convicted persons.
3. In dealing with the points raised by the learned Counsel it is advantageous to mention the facts of the case, in brief:
When the stage show (nautanki) was in full swing some of the spectators (the appellants and Ali Hasan) who were sitting on a cot watching the play started flashing torch light on the faces of girls and ladies among the spectators. While doing so appell-ant Nambachha cracked a banter by announcing that a reward of Rs. 2/- would be awarded to the clown in the stage show and that award will be in the name of a eunuch of Benipur. The said an-nouncement was taken objection to by Vijay Kumar (one of the four deceased in the case). Appellant Nambachha then asked Vijay Kumar to keep silence. One of the assailants made an exhortation to finish Vijay Kumar presumably for questioning the propriety of the announcement made by Nambachha. It was then that appellant Lallu took out a knife and inflicted a stab injury on Vijay Kumar. This was followed by the other accused persons rushing to those who reached for the rescue of Vijay Kumar. All those per-sons were showered with stab injuries. Except Rakesh Kumar all the persons stabbed in the aforesaid episode succumbed to the injuries sustained thereby.
4. Although prosecution examined six witnesses to speak to the occurrence, four of them turned hostile and hence prosecution could depend upon only PW 1 Ram Ajore (who gave the FIR) and PW 7 Rakesh Kumar for proving the occurrence in the case. The trial court and the Full Bench of the High Court placed full reliance on the testimony of those two witnesses. As against the concur-rent findings of facts normally this Court would not interfere in an appeal by special leave under Article 136 of the Constitution.
5. Nevertheless, we have to deal with some of the points which were forcefully pressed into service by Ms. Kamini Jaiswal. The first amongst them is that the FIR in the present case is not the one propounded by the prosecution and the real FIR had been completely suppressed by the investigating officers. In support of this contention learned Counsel made reference to the factual position that in the enclosed report prepared in respect of the dead bodies of Vinod Kumar and Vijay Kumar there is an inscrip-tion like this, in the column meant for the person who gave information of the dead body, the name of Amrit Lal Maurya is mentioned.
6. It has come out in further portion of the evidence that the said Amrit Lal Maurya was a member of the Home Guard and he was one of the personnel posted for duty at the venue of the stage play. The said inquest report was prepared at 8:30 a.m. on Octob-er 20,1983. The FIR relied on by the prosecution, is based on a statement furnished by PW 1, Ram Ajore said to have been lodged at 2 a.m. on the same night. The said FIR reached the Magistrate only on October 21, 1983.
7. On the basis of the aforesaid factual position learned Counsel contended that the real FIR should have been based on the state-ment or information supplied by Amrit Lal Maurya and if that is not produced in this case it casts a serious shadow on the entire gamut of the prosecution case and hence the same could be viewed very suspiciously as a whole.
8. The aforesaid aspect has been considered by Full Bench of the High Court, but the learned Judges have observed on that aspect as thus :
“It was argued that the copy of the G.D. Entry No 2 at 1 a.m. lodged by Amrit Lal Maurya has not been produced. It is true that the paper has been weeded out. But there is nothing on record to show that this entry of the G.D. was the FIR. Had it been a FIR check report might have been prepared on the basis. Amrit Lal Maurya has not been examined. He could have been summoned by the accused as defence witness but mere non-examination of Amrit Lal Maurya and non-production of G.D. entry will not show that the FIR is ante-timed.”
9. Amrit Lal Maurya was not examined by the prosecution as the prosecution did not find him of any use. His report has found a place in the general diary of the police station. The defence did not make any attempt to get the said general diary for checking up whether Amrit Lal Maurya would have given any detailed state-ment regarding the occurrence or whether he had given only a general statement that some incident had happened and some per-sons were injured. So far as the prosecution is concerned they do not regard the said statement made by Amrit Lal Maurya as amount-ing to disclosure of any cognizable offence for the purpose of making an FIR. For the prosecution the FIR is based on the state-ment supplied by PW1 Ram Ajore. We too feel that the prosecution should have examined Amrit Lal Maurya to clear a possible doubt as to whether he would have given some details of the occurrence. But non-examination of Amrit Lal Maurya cannot be regarded as so fatal in this case for affecting the prosecution case in any manner. But we do not find any reason why the defence had not chosen to cite him either as a defence witness or a witness to be examined under Section 311 of the Code of Criminal Procedure.
10. When we consider the aforesaid broad features of this case we too feel, sailing along with the reasoning of the Full Bench of the High Court that non-examination of Amrit Lal Maurya cannot visit any serious consequence so far as prosecution case is concerned.
11. Learned Counsel then contended that there was not enough light for the witnesses to see the occurrence clearly or at least to identify the assailants, particularly, because the incident admittedly had happened during midnight in the month of October. We have come across the fact that there were four bulbs, two of them had a capacity of 200 watts each while the others had only 100 watts besides one petromax. We do not find any reason to think how the light provided by the said bulbs and petromax would have been insufficient for the eyewitnesses to identify the assailants.
12. Learned Counsel, alternatively, contended that a test identi-fication parade should have been conducted by the investigating officer and non-conduct of such a parade had impaired the worth of the evidence of the eyewitnesses. The test identification parade would have been necessary for the investigating officer if the eyewitnesses questioned by him had not given any indication of identity of the assailants. In the present case we have no-ticed that PW1 has given details of the names of the assailants in the FIR itself. In such a situation no investigating officer would normally resort to a test identification parade.
13. Yet another point canvassed by the learned Counsel for the appellant Lallu is that the main witness PW7 Rakesh Kumar was interrogated by the investigating officer only on the day when the final report was laid. We have noticed that PW7 on sustaining a very serious injury on his chest was in a critical condition and remained in the hospital for a long period of 21 days. This special circumstance would account for the delay in questioning PW7.
14. After re-evaluating the evidence from the different angles projected by the learned Counsel for the appellants we do not find any reason to take a different view regarding the apprecia-tion of the testimony of PW1 and PW7.
15. The act done by appellant Lallu was one of inflicting a stab injury on the chest of deceased Vijay Kumar. Learned Counsel contended that as Vijay Kumar sustained two injuries it is not possible for the Court to fix up which among the two would have been inflicted by appellant Lallu, even if the testimony of eyewitnesses could be believed. We noticed that both the injuries sustained by deceased Vijay Kumar were individually sufficient in the course of nature to cause death as both of them involved the plural cavity. It is enough for us to think that appellant Lallu would have inflicted one of the two injuries. If that be so, we have to presume that he intended to inflict the said injury and the injury which he inflicted was sufficient in the ordinary course of nature to cause death, making the act within the pur-view of the ‘thirdly’ clause of Section 300 of the Indian Penal Code.
16. Regarding remaining appellants there is no acceptable evi-dence as to who among them inflicted any particular injury on the four deceased persons. The evidence of PW1 and PW7 would only show that after Vijay Kumar fell down all the other deceased rushed to the rescue of Vijay Kumar and then the remaining ap-pellants moved forward, brandishing the knives. This is an area where it is difficult for us to pin point that any one of those assailants would have intended any particular injury which the deceased sustained, though it can be said that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. However, it is difficult for the Court to conclude that those injuries were actually intended by the assailants. Thus it is not possible to bring the offence within the purview of the ‘thirdly’ clause of Section 300 so far as remaining appellants are concerned.
17. While confirming the conviction and sentence imposed on appellant Lallu we alter the conviction of the remaining appell-ants to the one under Section 304 Part II of the Indian Penal Code. In the broad circumstances of the case, interest of justice will be met by imposing a sentence of six years RI for the afore-said offences in respect of the five appellants except Lallu. All the appellants were convicted under Section 307 IPC also. We reduce the sentence on that count to RI for a period of four years. Both the sentences shall run concurrently. We also award a fine of Rs. 5,000/- each on all the appellants except Lallu – in default of payment of fine we direct the defaulters to undergo simple imprisonment for a further period of two years. The fine amount, if realised, shall be disbursed in equal shares to the legal representatives of the four deceased in this case. This shall be done by the trial court on realisation of the fine.
18. The appeals are disposed of accordingly.
1. A stage show on the night of October 19, 1983 turned into a carnage in which four persons were dead and others were very seriously injured. Virtually a pandemonium broke out when the stage show was in full swing. Some spectators stabbed some others resulting in the aforesaid carnage. The police charge-sheeted seven persons as assailants. When those seven persons were facing trial one of them (A-7 Ali Hasan) died and hence the trial pro-ceeded only in respect of the remaining six persons.The trial Judge convicted all the six persons under Sections 302,307 read with Section 149 of the Indian Penal Code besides the offence of rioting under Section 148 of the Indian Penal Code and has chosen to award the extreme penalty known to law as for all the six per-sons for the major offence.
2. When the convicted persons filed appeals before the High Court they passed through a queer career. At one stage a Division Bench of two Judges of the High Court heard the appeals at great length, but they differed from each other as to the verdict to be pronounced. One of them opined that all the convicted persons are liable to be acquitted in toto while the other Judge was inclined to uphold the conviction. On account of the aforesaid tie the two learned Judges thought it fit to refer the case to a larger Bench of the High Court. Eventually, a Full Bench of three Judges heard all the appeals and as per the unanimous judgment delivered by the Bench the conviction in respect of all the offences was confirmed as against the convicted persons. However, the Bench altered the sentence in respect of the major offence from death penalty to life imprisonment. These appeals are by special leave at the instance of those convicted persons.
3. In dealing with the points raised by the learned Counsel it is advantageous to mention the facts of the case, in brief:
When the stage show (nautanki) was in full swing some of the spectators (the appellants and Ali Hasan) who were sitting on a cot watching the play started flashing torch light on the faces of girls and ladies among the spectators. While doing so appell-ant Nambachha cracked a banter by announcing that a reward of Rs. 2/- would be awarded to the clown in the stage show and that award will be in the name of a eunuch of Benipur. The said an-nouncement was taken objection to by Vijay Kumar (one of the four deceased in the case). Appellant Nambachha then asked Vijay Kumar to keep silence. One of the assailants made an exhortation to finish Vijay Kumar presumably for questioning the propriety of the announcement made by Nambachha. It was then that appellant Lallu took out a knife and inflicted a stab injury on Vijay Kumar. This was followed by the other accused persons rushing to those who reached for the rescue of Vijay Kumar. All those per-sons were showered with stab injuries. Except Rakesh Kumar all the persons stabbed in the aforesaid episode succumbed to the injuries sustained thereby.
4. Although prosecution examined six witnesses to speak to the occurrence, four of them turned hostile and hence prosecution could depend upon only PW 1 Ram Ajore (who gave the FIR) and PW 7 Rakesh Kumar for proving the occurrence in the case. The trial court and the Full Bench of the High Court placed full reliance on the testimony of those two witnesses. As against the concur-rent findings of facts normally this Court would not interfere in an appeal by special leave under Article 136 of the Constitution.
5. Nevertheless, we have to deal with some of the points which were forcefully pressed into service by Ms. Kamini Jaiswal. The first amongst them is that the FIR in the present case is not the one propounded by the prosecution and the real FIR had been completely suppressed by the investigating officers. In support of this contention learned Counsel made reference to the factual position that in the enclosed report prepared in respect of the dead bodies of Vinod Kumar and Vijay Kumar there is an inscrip-tion like this, in the column meant for the person who gave information of the dead body, the name of Amrit Lal Maurya is mentioned.
6. It has come out in further portion of the evidence that the said Amrit Lal Maurya was a member of the Home Guard and he was one of the personnel posted for duty at the venue of the stage play. The said inquest report was prepared at 8:30 a.m. on Octob-er 20,1983. The FIR relied on by the prosecution, is based on a statement furnished by PW 1, Ram Ajore said to have been lodged at 2 a.m. on the same night. The said FIR reached the Magistrate only on October 21, 1983.
7. On the basis of the aforesaid factual position learned Counsel contended that the real FIR should have been based on the state-ment or information supplied by Amrit Lal Maurya and if that is not produced in this case it casts a serious shadow on the entire gamut of the prosecution case and hence the same could be viewed very suspiciously as a whole.
8. The aforesaid aspect has been considered by Full Bench of the High Court, but the learned Judges have observed on that aspect as thus :
“It was argued that the copy of the G.D. Entry No 2 at 1 a.m. lodged by Amrit Lal Maurya has not been produced. It is true that the paper has been weeded out. But there is nothing on record to show that this entry of the G.D. was the FIR. Had it been a FIR check report might have been prepared on the basis. Amrit Lal Maurya has not been examined. He could have been summoned by the accused as defence witness but mere non-examination of Amrit Lal Maurya and non-production of G.D. entry will not show that the FIR is ante-timed.”
9. Amrit Lal Maurya was not examined by the prosecution as the prosecution did not find him of any use. His report has found a place in the general diary of the police station. The defence did not make any attempt to get the said general diary for checking up whether Amrit Lal Maurya would have given any detailed state-ment regarding the occurrence or whether he had given only a general statement that some incident had happened and some per-sons were injured. So far as the prosecution is concerned they do not regard the said statement made by Amrit Lal Maurya as amount-ing to disclosure of any cognizable offence for the purpose of making an FIR. For the prosecution the FIR is based on the state-ment supplied by PW1 Ram Ajore. We too feel that the prosecution should have examined Amrit Lal Maurya to clear a possible doubt as to whether he would have given some details of the occurrence. But non-examination of Amrit Lal Maurya cannot be regarded as so fatal in this case for affecting the prosecution case in any manner. But we do not find any reason why the defence had not chosen to cite him either as a defence witness or a witness to be examined under Section 311 of the Code of Criminal Procedure.
10. When we consider the aforesaid broad features of this case we too feel, sailing along with the reasoning of the Full Bench of the High Court that non-examination of Amrit Lal Maurya cannot visit any serious consequence so far as prosecution case is concerned.
11. Learned Counsel then contended that there was not enough light for the witnesses to see the occurrence clearly or at least to identify the assailants, particularly, because the incident admittedly had happened during midnight in the month of October. We have come across the fact that there were four bulbs, two of them had a capacity of 200 watts each while the others had only 100 watts besides one petromax. We do not find any reason to think how the light provided by the said bulbs and petromax would have been insufficient for the eyewitnesses to identify the assailants.
12. Learned Counsel, alternatively, contended that a test identi-fication parade should have been conducted by the investigating officer and non-conduct of such a parade had impaired the worth of the evidence of the eyewitnesses. The test identification parade would have been necessary for the investigating officer if the eyewitnesses questioned by him had not given any indication of identity of the assailants. In the present case we have no-ticed that PW1 has given details of the names of the assailants in the FIR itself. In such a situation no investigating officer would normally resort to a test identification parade.
13. Yet another point canvassed by the learned Counsel for the appellant Lallu is that the main witness PW7 Rakesh Kumar was interrogated by the investigating officer only on the day when the final report was laid. We have noticed that PW7 on sustaining a very serious injury on his chest was in a critical condition and remained in the hospital for a long period of 21 days. This special circumstance would account for the delay in questioning PW7.
14. After re-evaluating the evidence from the different angles projected by the learned Counsel for the appellants we do not find any reason to take a different view regarding the apprecia-tion of the testimony of PW1 and PW7.
15. The act done by appellant Lallu was one of inflicting a stab injury on the chest of deceased Vijay Kumar. Learned Counsel contended that as Vijay Kumar sustained two injuries it is not possible for the Court to fix up which among the two would have been inflicted by appellant Lallu, even if the testimony of eyewitnesses could be believed. We noticed that both the injuries sustained by deceased Vijay Kumar were individually sufficient in the course of nature to cause death as both of them involved the plural cavity. It is enough for us to think that appellant Lallu would have inflicted one of the two injuries. If that be so, we have to presume that he intended to inflict the said injury and the injury which he inflicted was sufficient in the ordinary course of nature to cause death, making the act within the pur-view of the ‘thirdly’ clause of Section 300 of the Indian Penal Code.
16. Regarding remaining appellants there is no acceptable evi-dence as to who among them inflicted any particular injury on the four deceased persons. The evidence of PW1 and PW7 would only show that after Vijay Kumar fell down all the other deceased rushed to the rescue of Vijay Kumar and then the remaining ap-pellants moved forward, brandishing the knives. This is an area where it is difficult for us to pin point that any one of those assailants would have intended any particular injury which the deceased sustained, though it can be said that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. However, it is difficult for the Court to conclude that those injuries were actually intended by the assailants. Thus it is not possible to bring the offence within the purview of the ‘thirdly’ clause of Section 300 so far as remaining appellants are concerned.
17. While confirming the conviction and sentence imposed on appellant Lallu we alter the conviction of the remaining appell-ants to the one under Section 304 Part II of the Indian Penal Code. In the broad circumstances of the case, interest of justice will be met by imposing a sentence of six years RI for the afore-said offences in respect of the five appellants except Lallu. All the appellants were convicted under Section 307 IPC also. We reduce the sentence on that count to RI for a period of four years. Both the sentences shall run concurrently. We also award a fine of Rs. 5,000/- each on all the appellants except Lallu – in default of payment of fine we direct the defaulters to undergo simple imprisonment for a further period of two years. The fine amount, if realised, shall be disbursed in equal shares to the legal representatives of the four deceased in this case. This shall be done by the trial court on realisation of the fine.
18. The appeals are disposed of accordingly.
