Holding

Only the accused who inflicted the fatal stab wound (A‑1) is liable under Section 302 IPC, while the remaining accused are liable under Section 326 IPC read with Section 149.

Summary

The case concerned the murder of Hira Singh during a Holi celebration in Ballia, Uttar Pradesh, where five accused assaulted him and others. The trial court convicted all five under Sections 302 and 149 of the IPC, imposing life imprisonment, while the High Court affirmed the convictions. On special leave, the Supreme Court examined the evidence, the applicability of Section 149 IPC, and procedural issues such as the scope of an inquest report under Section 174 CrPC and the authority of a third judge under Section 392 CrPC. It held that only the principal assailant (A‑1) could be convicted under Section 302 IPC, whereas the others were liable only for grievous hurt under Section 326 IPC read with Section 149. The Court also clarified that deficiencies in the inquest report do not invalidate the prosecution and that a hostile witness’s testimony can be used if reliable. Consequently, the appeal of A‑1 was dismissed with his conviction altered to Section 302 IPC (life imprisonment), while the appeals of A‑3, A‑4 and A‑5 were partly allowed, substituting their murder convictions with Section 326 IPC (seven years rigorous imprisonment). All other convictions and sentences were affirmed.

Issues considered

The applicability of Section 149 IPC to the accused other than the principal assailant
Whether the common object of the unlawful assembly was murder
Whether deficiencies in the Section 174 inquest report affect the prosecution's case
The admissibility and weight of hostile witness testimony
The scope of Article 136 of the Constitution in interfering with lower court findings
The authority of a third judge under Section 392 CrPC when a division bench is divided

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 174, s. 175, s. 313, s. 392, s. 429, s. 464
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 300, s. 302, s. 323, s. 324, s. 326

Subjects

murderculpable homicideSection 149 IPCunlawful assemblyinquest reportArticle 136hostile witnessSection 392 CrPCSection 174 CrPCconviction modificationlife imprisonmentrigorous imprisonment

Judgment

RADHA MOHAN SINGH @ LAL SAHEB AND ORS. A
V.

STATE OF U.P.

JANUARY 20, 2006

[K.G. BALAKRISHNAN; ARUN KUMAR AND G.P. MATHUR, JJ.] B

Constitution of India, 1950:

Article 136-Scope of-Held, Supreme Court may interfere where on
proved facts wrong inference of law is shown to have been drawn. C
Penal Code, 1860:

Sections 302 and 326 rlw Section 149-Five accused assaulting
complainants-One killed and two got injuries-Held, it cannot be said that
common object of the unlawful assembly was to commit murder of deceased D
or that they knew that murder is likely to be committed in prosecution of the
common object of the assembly-A-I convicted u/s 302-0thers convicted u/
s 326 rlw s. 149.

Code of Criminal Procedure, 1973:
E
Section 392-Court of appeal-Divided in _opinion-Matter laid before
another Judge-Held, the third judge is under no obligation to accept the
view of one of the Judges.

Section I 74-/nquest report-Not containing names of witnesses or F
accused-Held, there is absolutely no requirement in law of mentioning details
of FIR in inquest report.

Evidence:

Hostile witness-Evidence of-Held. can be accepted to the extent his G
version is found to be dependable.

Appellants-accused A-I to A-5 were prosecuted for committing
murder of brother of P.W. land causing injuries to PWs I, 3 and 5. The
prosecution case was that a few days earlier to the date of occurrence a
519 H
RADHA MOIJANSINGH@LALSAHEB». STATEOFU.P. 521
f
1
Babu and Ors. v. The State of Uuar Pradesh, AIR (1965) SC 1467; A
Hethubha v. State of Gujarat, AIR (1970) SC 1266; State of Andhra Pradesh
v. P. r Appaiah, AIR (1981) SC 365; Dharam Singh v. State of Uttar Pradesh,
(1964) 1 Crl.LJ 78 and Tanviben Pankajkumar Divetia v. State of Gujarat,
[199717 sec 156, relied on.

2.1. It is well settled that while hearing an appeal under Article 136 B
of the Constitution this Court will normally not enter into reappraisal or
review of evidence unless the trial court or the High Court is shown to
have committed an error of law or procedure and the conclusions arrived
at are perverse. The court may interfere where on proved facts wrong
inference of law is shown to have been drawn. (527-A-BI c
Duli Chand v. Delhi Administration. 119751 4 SCC 649; Mst. Dalbir
Kaur and Ors. v. State of Punjab, 119761 4 SCC 158;. Ramanbhai Naranbhai
Patel and Ors. v. State of Gujarat, 120001 I SCC 358 and Chandra Bihari
Gautam and Ors. v. State of Bihar, JT (2002) 4 SC 62, relied on.
D
\ 2.2. However, in order to examine whether the findings recorded
against the appellants suffer from any infirmity, the Court has gone
through the evidence on record. The testimony of PW-I, who is an inju~ed
witness, and PW-4 clearly establishes the guilt of the accused. The evidence
on record clearly shows that the FIR of the incident was promptly lodged E
and the testimony of PW-I, PW-4 and also PW-3 finds complete
corroboration from the medical evidence on record. There is absolutely
no reason to take a different view. (527-C-D; 528-B-CJ

\ 3.1. It is well settled that the evidence of a prosecution witness cannot
be rejected in toto merely because the prosecution chose to treat him as F
hostile and cross-examined him. The evidence of such witness cannot be
treated as effaced or washed off the record altogether but the same can
be accepted to the extent his version is found to be dependable on a careful
scrutiny thereof. (527-G-H; 528-A-BI

Bhagwan Singh v. State of Haryana. AIR (1976) SC 202; Rabinder G
Kumar Dey v. State of Orissa, AIR (1977) SC 170; Syed Akbar v. State of
Karna/aka, AIR (1979) SC 1848 and Khujji :c~ Surendra Tiwari v. State of
Madhya Pradesh, AIR (1991) SC 1853, relied on.

3.2. In the instant case, even PW-3 fully supported the prosecution H
522 SUPREME COURT REPORTS [20061 I S.C.R.
...
A case in his exl!mination-in-chief. In his cross-examination, which was
recorded on the same date, he gave details of the weapons being carried
by each of the accused and also the specific role played by them in
assaulting the deceased and other injured persons. As his cross-
examination could not be completed it was res•1med on the next day and
then he gave a statement that he could not see the incident on account of
B darkness. His testimony has been carefully examined by the trial court
and also by two Judges of the High Court and they have held that the
witness, on account of pressure exerted upon his by the accused, tried to
support them in his cross-examination on the next day. It has been further
held that the statement of the witness, as recorded on the first day
c including his cross-examination, was truthful and reliable. 1527-E-GI

4.1. An investigation under section 174 of the Code of Criminal
Procedure, 1973, is limited in scope and is confined to th1! ascertainment
of the apparent cause of death. The details of the overt acts are not
necessary to be recorded in the inquest report. There is absolutely no
D requirement in law of mentioning in the inquest report the details of the
I
FIR, names of the accused or the names of the eye-witnesses or the gist of
their statement nor is it required to be signed by any eye-witness.
1542-H; 533-A-B-CI

E l'odda Narayana v. State ofA.P., AIR (1975) SC 1252; Shakita Khuder
v. Nausher Gama. AIR (1975) SC 1324; Eqbal Baig v. State of Andhra
Pradesh, AIR (1987) SC 923 and Khujji 1a Surendra Tiwari v. State of
Madhya Pradesh. AIR (1991) SC 1853, relied on.

Amar Singh v. Ba/winder Singh, 120031 2 SCC 518, referred to.
F
Meharaj Singh v. State of U.P., IJ 9941 5 SCC 188, overruled.

4.2. No argument on the basis of an alleged discrepancy, overwriting
omission or contradiction in the inquest report can be entertained unless
the attention of the author thereof is drawn to the said fact and he is given
G an opportunity to explain when he is examined as a witness in Court.
Therefore, in the instant case it is impermissible to draw any inference
against the prosecution on the ground that the date of lodging the FIR
was wrongly mentioned in the FIR. 1531-A-BI
I l
-
H 5.1. As regards the offences committed by the accused, the medical
RADHA MOHAN SINGH@ LAL SA HEB 1· STA TE OF U P 523

evidence shows that the deceased had died on account of stab wound which A
had been intlicted-0n the chest. Two accused, namely, A-1 who was armed
with spear and A-4 who was armed with pharsa, are alleged to have
assaulted the deceased. Pharsa is a sharp weapon having a long blade while
spear is a sharp pointed weapon. ~tis, therefore, obvious that injury no.I,
which is a stab wound, was caused by A~l. The pharsa does not appear to B
have been wielded with any amount of force or with an intention to cause
injury as the incised wound is a very small and superficial 01te. The
possibility that the deceased received this injury when he fell down on the
'I pathway cannot be entirely ruled out. The remaining accused are not
alleged to have assaulted the deceased but are alleged to have assaulted
the other PWs and the injuries on their person were found to be simple C
in nature. (536-C-DI

5.2. So far as A-1 is concerned, his case is fully covered by clause
Thirdly of Section 300 IPC as it can .be reasonable inferred that he
intended to cause bodily injury to the deceased by aiming the blow on the
left side of the chest and the injury was found to be sufficient in the D
ordinary course of nature to cause death. He is liable to be convicted under
Section 302 IPC. In view of Section 464 Cr.P.C. it is possible for the
appellate or revisional court to convict an accused for an offence for which
no charge was framed unless the Court is of the opinion that the failure
of justice would in fact occasion. Therefore, from the record it is clear E
that A-1 was made aware of the basic ingredients of the offence and the
main facts sought to be established against him were explained to him.
He is, therefore, convicted under Section 302 IPC for having committed
the murder of the deceased and sentenced to imprisonment for life.
(536-E-G; 537-B-CI
F
5.3. As regards conviction of other accused under Section 302 read
with Section 149 IPC, there was no such motive which could have impelled
the accused persons to commit the murder of the deceased. In the
circumstances and on thic basis of the evidence on record, it cannot be said
that the common object of the unlawful assembly was to commit the G
murder of the deceased or that the members of the unlawful assembly
knew that murder is likely to be committed in prosecution of the common
object of the assembly. However, as members of the unlawful assembly
carried deadly weapons, the knowledge that grievous injury may be caused
can certainly be attributed to them. Therefore, conviction of A-3, A-4 and
A-5 under Section 302 read with Section 149 IPC is set aside and instead H
524 SUPREME cot;RT REPORTS 12006] I S.C.R.

A they are convicted under Section 326 read with Section 149 IPC for which
a sentence of 7 years RI will meet the ends of justice.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1183-
1185 of 2004.

B From the Judgment and Orders dated 22.03.2004 and 16.4.2004 read
with Judgment and Order dated 9.7.2004 of the All~liabad High Court in Crl.
Appeal No. 1334 of 1980.

WITH

C Criminal Appeal No. 1183-85 of 2004.

R.K. Jain, Dr. J.N. Dubey. Ajay Bhalla, Rahul Agarwal, Ms. Shikha
Sapra, Fuzail Khan, N.K. Singh, Akhilesh Kumar Pandey, Ms. Abha R.
Sharma, Navee..n Singh, Anurag Dubey, K.B. Upadhyay, Pramod Srivastava
D and S.R. Setia for the Appellants.
Prashant Chaudhary and Sandeep Singh (for Mr. Praveen Swarup) for
the Respondent.

The Judgment of the Court was delivered by

E G.P. MATHUR, J. These appeals by special leave have been preferred
against the judgment and order dated 9.7.2004 of Allahabad High Court by
which the appeal preferred by the appellants was dismissed and their conviction
under Sections 147, 148 and 323, 324 and 302 all read with Section 149 !PC
as recorded by the learned Sessions Judge and the sentences awarded
F thereunder were affirmed. The appellants were awarded various terms of
imprisonment on different counts including sentence of imprisonment for life
under Section 302 read with Section l 49 l PC.

2. According to the case of the prosecution the incident giving rise to
the present appeals took place in Village Sivpur Dceyar Nai Basti in the
G district of Ballia. The first informant PW-I Ganesh Singh was residing in the
village while his elder brother Hira Singh (deceased) was carrying on business
in Calcuna. Five days before the present incident. which took place on
14.3.1979, accused Radha Mohan Singh (A-1), Kaushal Kishore Singh (A-
5) and some others had assaulted Udai Narain. PW-I Ganesh Singh was a
1l witness of the said incident and his statement had beeR recorded under Section
~

RADllA MOHAN SINGll '0 LAL SA HEB 1·. STATEOFU.P. [GP MATHUR,J.] 525
)-
'I 161 Cr.P.C. The deceased Hira Singh had come to his village home two days A
before the Holi festival which fell on 14.3.1979. A-1 and A-5 met the deceased
and asked him to forbid his younger brother PW-I Ganesh Singh from giving
evidence against them in the criminal case relating to the assault made upon
Udai Narain. The deceased, however, told them that as his brother had seen
the incident, he would appear as a witness and would depose against them.
The accused felt annoyed and threatened that they would teach him a lesson. B
On 14.3.1979, which was the Holi day, the first informant PW-I Ganesh
Singh and his brother deceased Hira Singh went to the houses of some people
in the village for the purpose of' Holi Milan', as was customary. By evening
time they were going on the pathway in front of the house of Nand Kish ore,
when Radha Mohan Singh (A- I) armed with spear, Tej Bahadur Sirtgh (A- c
2) and Kapil Dev Singh (A-3) armed with lathis, Devender Singh @ Mutuk
Singh (A-4) armed with farsa and Kaushal Kishore Singh (A-5) armed with
knife suddenly appeared there. A- I assaulted Hira Singh with the spear and
A-4 assaulted him with farsa and after receiving the injuries he fell down.
When PW-I Ganesh Singh tried to save him, A-2 and A-3 assaulted him with
lathis. Two other persons who were also present there, namely, PW-3 Mohan D
.It,
Yadav and PW-6 Ram Pyari tried to intervene and save them but they were
also assaulted by A-5 by knife and A-3 by lathi. The accused thereafter ran
away from the seen of occurrence. Hira Singh was carried on a cot to the
'bandh', which was at the outskirts of the village and from there he was taken
to the district hospital in a tempo where he was medically examined at 9.00 E
P.M. PW-I Ganesh Singh was medically examined at 9.50 P.M. and the
remaining two injured PW-6 Ram Pyari and PW-3 Mohan Yadav were
examined at 11.30 A.M. on the next day. Ganesh Singh lodged a written
\ report of the incident at I 0.30 P.M. on the same night at P.S. Kotwali giving
a complete version of the incident.
F
3. After completion of investigation charge sheet was submitted against
all the five accused and the case was committed to the court of sessions. The
learned Sessions Judge framed charges under Sections 147, 148 and 323, 324
and 302 all read with Section 149 IPC against the accused persons. The
accused pleaded not guilty and came to be tried. In order to establish its case G
prosecution examined five eye witnesses. n~mely, PW-I Ganesh Singh, PW-
3 Mohan Yadav. PW-4 Ramji Singh. PW-5 Nand Kishore and PW-6 Ram
Pyari. PW-I Ganesh Singh. who is the first informant and had received
injuries in the incident, gave complete version of the incident in his deposition
in Court. His testimony was fully corroborated by PW-4 Ramji Singh, who
was also named as an eye witness of the incident in the FIR. PW-3 Mohan H
526 SUPREME COllRT REPORTS [2006] I S.C.R.

A Yadav, an injured witness, supported the prosecution case in his examination-
in-chief and in cross-examination. As his cross-examination could not be
completed it was continued on the next day when he stated that on account
of darkness he could not identify anyone. On the request of the learned State
counsel, he was permitted to be cross examined. PW-5 Nand Kishore and
B PW-6 Ram Pyari did not support the case of the prosecution and thP.y were
declared hostile.

4. The learned Sessions Judge, after thorough examination of the
evidence on record, held that the prosecution had succeeded in establishing
the charges leveled against all the accused and accordingly convicted them
C under Sections 147, 148 and 323, 324 and 302 all read with Section 149 IPC
and imposed sentence of various terms of imprisonment including life
imprisonment under Section 302 read with Section 149 IPC. The appeal
preferred by the appellants was heard by a Division Bench consisting of
Hon'ble S.K. Agarwal and Hon'ble K.K. Misra, JJ. There was a difference
of opinion between the two learned Judges. Hon 'ble S.K. Agarwal, J. was of
D the opinion that the appeal should be allowed and the conviction of the
appellants and the sentences imposed thereunder were liable to be set aside.
..
Hon 'ble K.K. Misra, J. was of the opinion that the appeal was liable to be
dismissed and the conviction of the appellants and the sentences imposed by
the learned Sessions Judge deserved to be upheld. In view of difference of
E opinion the appeal was placed for hearing before Hon'ble U.S. Tripathi J.,
who came to the conclusion that the appeal deserved to be dismissed. In
accordance with the opinion of the learned third Judge the appeal was
dismissed and the conviction and sentences imposed upon the appellants by
the learned Sessions Judge were affirmed by the High Court. I

F 5. During the pendency of the appeal in this Court Tej Bahadur Singh
(A-2) died and his appeal has accordingly abated.

6. Dr. J.N. Dubey, learned senior counsel for A-4 and A-5, has submitted
that the incident had taken place in darkness and the assailants could not be
identified or seen by the prosecution witnesses and. therefore, the conviction
G of the appellants cannot be sustained. Learned counsel has submitted that
PW-3 Mohan Yadav, who had received injuries in the incident, had admitted
the said fact in his cross-examination and two other eye witnesses, viz., PW- • '
5 Nand Kishore and PW-6 Ram Pyari had also not supported the prosecution
case in their examination-in-chief itself and in such a situation no reliance
H could be placed on the testimony of the remaining eye witnesses to uphold
RADHA MOllAN SINGH@LALSAHEB1'. STATEOFU P [G.P. MATHUR.!] 527

the conviction of the appellants. A
7. I~ is well settled that while hearing an appeal under Article 136 of
the Constitution this Court will normally not enter into reappraisal or the
review of evidence unless the trial court or the High Court is shown to have
committed an error of law or procedure and the conclusions arrived at are
perverse. The Court may interfere where on proved facts wrong inference of B
law is shown to have been drawn (see Duli Chand v. Delhi Administration,
..
[1975] 4 SCC 649, Mst. Dalbir Kaur and Ors. v. State of Punjab, [1976] 4
SCC 158, Ramanbhai Naranbhai Patel and Ors. v. State of Gujarat, [2000]
I SCC 358 and Chandra Bihari Gautam and Ors. v. State of Bihar, JT
(2002) 4 SC 62). Though the legal position is quite clear still we have gone C
through the evidence on record in order to examine whether the findings
recorded against the appellants suffer from any infirmity. The testimony of
PW-I Ganesh Singh, who is an injured witness, and PW-4 Ramji Singh
clearly establishes the guilt of the accused. According to the case of the
prosecution the incident took place shortly after sunset. The eye witnesses
have deposed that after the incident the deceased Hira Singh was carried on D
a cot to the 'bandh', which is on the outskirts of the village. As no conveyance
was available, the first informant had to wait for quite some time and thereafter
a tempo was arranged on which the deceased was taken to the district hospital
where he was medically examined by PW-2 Dr. Siddiqui at 9.00 P.M. It has
come in evidence that the village is at a distance of six miles from police E
station Kotwali, Ballia. The non-availability of any conveyance is quite natural
as it was Hoii festival. Even PW-3 Mohan Yadav fully supprrted the
prosecution case in his examination-in-chief. In his cross-examination, which
was recorded on the same date, he gave~ details of the weapons being carried
by each of the accused and also the speci.fic role played by them in assaulting
the deceased and other injured persons. As his cross-examination could not F
be completed it was resumed on the next day and then he gave a statement
that he could not see the incident on account of darkness. His testimony has
been carefully examined by the learned Sessions Judge and also by two
learned Judges of the High Court (Hon'ble K.K. Misra, J. and Hon'ble U.S.
Tripathi, J.) and they have held that the witness, on account of pressure G
exerted upon him by the accused, tried to support them in his cross-examination
on the next day. It has been further held that the statement of the witness, as
recorded on the first day including his cross-examination, was truthful and
reliable. It is well settled that the evidence of a prosecution witness cannot
be rejected in toto merely because the prosecution chose to treat him as
hostile and cross-examined him. The evidence of such witness cannot be H
528 SUPREME COliRT REPORTS [2006) I S.C.R

A treated as effaced or washed off the record altogether but the same can be
accepted to the extent his version is found to be dependable on a careful
scrutiny thereof. (See Bhagwan Singh v. State of Haryana, AIR (1976) SC
202, Rabinder Kumar Dey v. State of Urissa, AIR ( 1977) SC 170, Syed
Akbar v. State of Karnataku. AIR ( 1979) SC 1848 and Khujji (aj Surendra
B Tiwari v. State of Madhya Pradesh, AIR ( 1991) SC 1853). The evidence on
record clearly shows that the FIR of the incident was promptly lodged and
the testimony of PW-I Ganesh Singh, PW-4 Ramji Singh and aiso PW-3
Mohan Yadav finds complete corroboration from the medical evidence on
record. We find absolutely no reason to take a different view.

C 8. Dr. J.N. Dubey, learned senior counsel for A-4 and A-5 has submitted
that there was a difference of opinion between the two learned judges who
had heard the appeal and Hon. S.K. Agarwal. J. was of the opinion that the
prosecution had failed to establish the guilt of the accused and they were
entitled to be acquitted. In these circumstances, the learned third Judge, to
whom the appeal had been referred, should have leaned in favour of the view
D taken by Hon. S.K. Agarwal. J. as a rule of pn•ience and should not have
differed from the findings recorded by His Lordship unless the same were
•
perverse or there were strong and weighty reasons for doing so. We are
unable to accept the contention raised. Section 392 Cr.P.C. lays down that
when an appeal under Chapter XXIX is heard by a High Court before a
E Bench of judges and they are divided in opinion, the appeal with their opinions,
shall be laid before another Judge of that Court, and that judge, after such
hearing as he thinks fit, shall deliver his opinion and the judgment and order
shall follow that opinion. In Babu and Ors. v. The State of Uttar Pradesh,
AIR (1965) SC 1467, Hidayatullah. J. (as His Lordship then was) speaking
for the Constitution Bench held that Section 429 Code of Criminal Procedure,
F 1908 (which is same as Section 392 Code of Criminal Procedure, 1973)
contemplates that it is for the third judge to decide on what point he shall
hear arguments, if any, and that postu !ates that he is completely free in
resolving the difference as he thinks fit. In Hethubha v. State of Gujarat, AIR
(1970) SC 1266, it was held that the whole case is to be dealt with by the
G third judge and not merely the di ffcrcnce between the two judges comprising
the Court of appeal and the third judge was free to resolve the differences as
he thought fit. In State of Andhra Prade.1·h v. PT Appt'liah AIR (1981) SC
365, there was a difference of opinion betwee"i two learned judges of the
High Court on the nature of the offrn<;e, admmitted by the accused. One
I , '
learned judge held that tlte accused did not intend-to cause death and
H consequently the offence committed by him was culpable homicide not
RADHA MOllANSINGH@LALSAHE81'. STATEOFU.P. [G.P. MATllUR.J] 529
amounting to murder punishable under Section 304 Part I IPC. The other A
learned judge held thal the offence committed by the accused fell under
clause Thirdly of Seciion 300 !PC and the accused was liable to be convicted
under Section 302 IPC. The third learned judge, after examination of entire
evidence on record, came to the conclusion that the same was doubtful and
suspicious in character and accordingly acquitted the accused. In appeal filed B
by the State, it was contended before this Court that it was not open to the
learned third judge to have acquitted the accused when both the learned
Judges who heard the appeal init~ally were of unanimous opinion that the
accused was guilty of having committed the offence and they had merely
differed on the nature of offence committed by the accused. It was held that
having regard to the language used in Section 429 Code of Criminal Procedure, C
1908, the third judge to whom the case was referred did not over step the
limits of his jurisdiction in acquitting the accused merely because there was
concurrent finding of both the judges composing the Division Bench that the
accused was guilty of some offence or that the difference between the two
judges of the Division Bench was confined to the nature of the offence only.
D
9. A similar contention that the learned third judge should as a rule of
prudence or on the principle of jurlicial etiquette lean in favour of the view
taken by the learned judge who had recorded the opinion for acquittal of the
accused was expressly repelled by a three-Judge Bench o0f this Court in
Dharam Singh v. Stale of VIiar Pradesh, (1964) I Crl.U 78 and it was E
observed as under :

·"All that S. 429 says is that the opinion of the two judges who
disagree shall be laid before another judge who, after giving such
hearing, if any, as he thinks fit, shall deliver his opinion and the
judgment or order shall be in accordance with such opinion. Now it F
is obvious that when the opinions of the two judges are placed before
a third judge he would consider those two opinions and give his own
opinion and the judgment has to follow the opinion of the third judge.
Consequently on that opinion is based the judgment of the coun. For
all practical purposes the third judge must consider the opinions of
his two colleagues and then give his own opinion but to equate the G
requirements with appeals against acquittals is not justified by
provisions of S. 429 or by principle of precedent.

There is no warrant for the contention that the opinion of the
judge acquitting the accused has to be treated in the same manner as
H
530 SUPREME COURT REPORTS (20061 I S.C.R.

A the judgment of acquittal by the trial court and that the judgment
should show that all the findings and reasons given in the opinion of
the acquitting JUdge are mentioned in the opinion of the third judge
and indicate the reasons for disagreeing with the opinion of the
acquitting judge."

B Similar view has bl:en expressed in Tanviben Pankajkumar Divetia v. State
of Gujarat, [ 1997] 7 SCC 156 that the third judge is under no obligation to
accept the view of one of the judges holding in favour of acquittal of the
accused either as a rule of prudence or on the score of judicial etiquette. This
being the settled legal position it is not possible to accept the contention
C raised by the learned counsel for the appellant.
10. Shri R.K. Jain. learned senior counsel appearing for A-1 and A-3
has submitted th~t in the inquest report there was no mention of the names
of the accused or the weapons used by them in commission of the crime and
the nature of the injury sustained by the deceased had also not been described
D and there was a general recital that the deac'.1 had occurred on account of
injuries caused. Emphasis has also been laid on the fact that the time and date
of lodging the FIR has been mentioned as "10 p.m. on 15.3.79", though the
prosecution has come out with a case that the FIR had been lodged at "10
p.m. on 14.3 .79". Learned counsel has thus submitted that these features
show that the FIR had in fact not been lodged by the time the inquest was
E held and the same has been anti-timed. In our opinion the date of lodging the
report has been wrongly written in the inquest report as "15.3. 79 samai I 0
baje raat (15.3.79 at 10 p.m.)". At the top of the inquest report the crime
number and the sections (Crime No.193/79 under Section 147/148/149/323/
302 !PC) have been mentioned. The time of commencement of the inquest
p is written as "7 a.m. on 15.3. 79·· and the time of conclusion of the inquest
is written as "8.30 a.m. on 15.3.79". If the inquest had been concluded by
8.30 a.m. on 15.3. 79. there was no occasion for writing the time of lodging
of the FIR as "10 p.m. on 15.3.79" as the person preparing the inquest report
could not have written anything about an event which was yet to take place.
We have not the slightest doubt that the investigating officer holding the
G inquest mentioned the date of lodging of the FIR as "15.3.79" instead of
"14.3.79" inadvertently or by mistake. That apart, it is important to note that
during the course of cross-examination PW.7 Ram Shabad Singh. SI, who
.'
held the inquest on the body of the deceased in the hospital, his attention was
not drawn to the aforesaid fact that the date and time of lodging of the FIR
H was mentioned as ··10 p.111. on 15.3.79". If the said discrepancy had been
RADHAMOHANSINGH@LALSAHEBv. STATEOFU.P. [G.P. MATHUR.J.) 53 J

pointed out to him, he could have given an explanation for the same. No A
argument on the basis of an alleged discrepancy, overwriting, omission or
contradiction in the inquest report can be entertained unless the attention of
the author thereof is drawn to the said fact and he is given an opportunity to
explain when he is examined as a witness in Court. Therefore, in the present
case it is impermissible to draw any inference against the prosecution on the B
ground that the date of lodging the FIR was wrongly mentioned in the FIR.
Regarding the non-mention of exact nature of injuries, it may be mentioned
here that the deceased Hira Singh had been taken· to the hospital where he
was given medical aid. The inquest report mentions that there were two
injuries which had been bandaged after applying some red colour medicine
with cotton. C
11. Learned counsel has also submitted that as the names of the accused
or the weapons carried by them and the names of the eye witnesses had not
been mentioned in the inquest report, it clearly showed that by •the time the
inquest report had been prepared, viz., 8.30 a.m. on 15.3. 79, the prosecution
was not sure about its case and the FIR had not come into existence. In D
support of this contention strong reliance has been placed on some observations
made by a two-Judge Bench of this Court in Meharaj Singh v. State of U.P.
[ 1994] 5 sec 188 in para 11 of the reports which read as under :

" .................................. It deservesilto be noticed that in the inquest
report ev<:n the name of the accused has ,not been mentioned. It also E
does not contain the names of the eye-·~itnesses or the gist of the
statement of the eye-w.itnesses. It does not reveal !!S to how many
shots had been fired or how many weapons tiad been used. The
inquest report is not signed by any of the eye witnesses, although the
investigating officer has categorically asserted that Kamlesh and Shiv F
Charan were present at the place of occurrence when he visited and
he recorded their statements. If he had actually recorded their
statements, there is no reason why the details which we have found
missing from the inquest report should not have been
there ...................................................... "
G
and also the following observations made in para 12 :

" ..................................... Even though the inquest report, prepared under
Section 174 Cr.P.C. is aimed at serving a statutory function, to lend
credence to the prosecution case, the details ·of the FIR and the gist
of statements recorded during inquest proceedings get reflected in the H
532 SUPREME COURT REPORTS [2006[ I S.C.R.

A report. The absence of those details is indicative of the fact that the
prosecution story was still in an embryo state and had not been given
any shape and that the FIR came to be recorded later on after due
deliberations and consultations and was then ante-timed to give it the
colour of a promptly lodged FIR. In our opinion, on account of the
infirmities as noticed above, the FIR has lost its value and authenticity
B and it appears to us that the same has been ante-timed and had not
been recorded till the inquest proceedings were over at the spot by
PW.8."

I 2. The provision for holding of inquest is contained in Section 174
C Cr.P.C. and the heading of the Section is Police to enquire and report on
suicide e/c. Sub-sections (I) and (2) thereof read as under :

174. Police 10 enquire and report on suicide, etc.--(I) When the
officer in charge of a pol ice station or some other police officer
specially empowered by the State Government in that behalf receives
0 information that a person has committed suicide, or has been killed
by another or by an animal or by machinery or by an accident, or has
died under circumstances raising a reasonable suspicion that some
other person has committed an offence, he shall immediately give
intimation thereof to the nearest Executive Magistrate empowered to
hold inquests, and, unless otherwise directed by any rule prescribed
E by the State Government, or by any general or special order of the
District or Sub-divisional Magistrate, shall proceed to the place wh.:re
the body of such deceased person is, and there, in the presence of two
or more respectable inhabitants of the neighbourhood, shall make an
investigation, and draw up a report of the apparent cause of death,
describing such wounds, fractures, bruises, and other marks of injury
F
as may be found on the body, and stating in what manner, or by what
weapon or instrument (if any), such marks appear to have been
inflicted.

(2) The report shall be signed by such police officer and other per>ons,
or by so many of them as concur therein, and shall be forthwith
G
forwarded to the District Magistrate or the Sub-divisional Magistrate.

The language of the aforesaid statutory provision is plain and simple
and there is no ambiguity therein. An investigation under Section 174 is
H limited in scope and is confined to the ascertainment of the apparent cause
RADHA MOHAN SINGH@ LAL SAllEB 1·.STATE OF U.P. [G.P. MA TllUR,J.] 533
., J
of death. It is concerned with discovering whether in a given case the death A
was accidental, suicidal or homicidal or caused by animal and in what manner
or by what weapon or instrument the injuries on the body appear to have
been inflicted. It is for this limited purpose that persons acquainted with the
facts of the case are summoned and examined under Section 175. The details
of the overt acts are not necessary to be recorded in the inquest report. The
question regarding the details as to how the deceased was assaulted or who B
assaulted him or under what circumstances he was assaulted or who are the
4 witnesses of the assault is foreign to the ambit and scope of proceedings
under Section 174. Neither in practice nQr in law it is necessary for the
person holding the inque:;t to mention all these details.

13. In Podda Narayana v. State of A.P.. AIR (1975) SC 1252 it was
c
held that the proceedings under Section 174 have a very limited scope. The
object of the proceedings is merely to ascertain whether a person has died
under suspicious circumstances or an unnatural death and if so what is the
apparent cause of the death. The question regarding the details as to how the
~
deceased was assaulted or who assaulted him or under what circumstances he D
was assaulted is foreign to the ambit and scope of the proceedings under S.
174. Neither in practice nor in law was it necessary for the police to mention
those details in the inquest report. It is, therefore, not necessary to enter all
the details of the overt acts in the inquest report. Their. omission is not
sufficient to put the prosecution out of Court. In Shakita Khader v. Nausher
E
Gama, AIR (1975) SC 1324 the contention raised that non-mention of a
person's name in the inquest report would show that he was not a eye-
witness of the incident was repelled on the ground that an inquest under
~
I Section 174 Cr.P.C. is concerned with establishing the cause of death and
only evidence necessary to establish it need be brought out. The same view
was taken in Eqbal Baig v. State of Andhra Pradesh, AIR ( 1987) SC 923 that F
the non-mention of name of an eye-witness in the inquest report could not
be a ground to reject his testimony. Similarly, the absence of the name of the
accused in the inquest report cannot lead to an inference that he was not
present at '.he time of commission of the offence as the inquest report is not
the statement of a person wherein all the names (accused and also the eye-
witnesses) ought to have been mentioned. The view taken in Podda Narayana
G
I.
,~
. I v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @
Surendra Tiwari v. State of Madhya Pradesh. AIR ( 1991) SC 1853 and it
was held that the testimony of an eye-witness could not be discarded on the
ground that their names did not figure in the inquest report prepared at the
earliest point of time. The nature and purpose of inquest held under Section H
534 SUPREME COURT REPORTS [2006[ I S.C.R.
.....
A 174 Cr.P.C. was also explained in Amar Singh v. Ba/winder Singh, (2003] 2
SCC 518. In the said case the High Court had observed that the fact that the
details about the occurrence were not mentioned in the inquest report showed
that the investigating officer was not sure of the facts when the inquest report
was prepared and the said feature of the case carried weight in favour of the
B accused. After noticing the language used in Section 174 Cr.P.C. and earlier
decisions of this Court it was ruled that the High Court was clearly in error
in observing as aforesaid or drawing any inference against the prosecution.
Thus, it is well settled by a catena of decisions of this Court that the purpose
of holding an inquest is very limited, viz., to ascertain as to whether a person
has committed suicide or has been killed by another or by an animal or by
C machinery or by an accident or has died under circumstances raising a
reasonable suspicion that some other person has committed an offence. There
is absolutely no requirement in law of mentioning the details of the FIR,
names of the accused or the names of the eye-witnesses or the gist of their
statement nor it is required to be signed by any eye-witness. In Meharaj
Singh v. S1ate of UP., (supra) the language used by the legislature in Section
D 174 Cr.P.C. was not taken note of nor the earlier decisions of this Court were
referred to and some sweeping observations have been made which are not
supported by the statutory provision. We are. therefore, of the opinion that
the observations made in paras 11 and 12 of the reports do not represent the
correct statement of law and they are hereby over-ruled. The challenge laid
E to the prosecution case by Shri Jain on the basis of the alleged infirmity or
omission in the inquest report has, therefore, no substance and cannot be
accepted.

14. Learned counsel for the appellants have lastly submitted that the
appellants had no motive to commit the murder of Hira Singh deceased as it
F was PW. I Ganesh Singh who was an eye-witness to the assault made by A-
l and A-5 upon Udai Narain five days earlier and they wanted him (PW. I)
not to give evidence against them in the said case. So the real animosity was
with Ganesh Singh. The deceased Hira Singh was no doubt the elder brother
of Ganesh Singh but he was living away from the village and was carrying
G on business in Calcutta. He had come to his village on the occasion of Holi
festival and it was then that A- I and some other co-accused had asked him
to forbid his brother (PW. I) not to give evidence to which he had given a
reply that being a witness to the incident he would give evidence in Court.
Thus, the only act attributed to the deceased was his refusal to persuade his
younger brother not to give evidence against A-1 and A-5 regarding the
H incident of assault made upon Udai Narain. There was no guarantee that
RADHA MOHANSINGH@LALSAHEBv.STATEOF UP. [G.P MATHUR,J.] 535
~,;.
Ganesh Singh would not have given evidence against them even after Hira A
' Singh had dissuaded him from doing so more so when he was living away
from the village. Learned counsel has further submitted that so far as A-2, A-
3 and A-5 are concerned, they did not cause any injury to the deceased and
the second injury on the body of the deceased was a small incised wound
which was only skin deep and it was a superficial injury. It has thus been
urged that the conviction of the remaining accused for the offence under
B
Section 302 with the aid of Section 149 !PC, other than the one who caused
the stab wound on the chest which proved fatal, is illegal and deserves to be
...,
set aside.

15. In this connection it is necessary to refer to the injuries caused to
the deceased and the injured. PW. I0 Dr. Prem Prakash, Medical Officer,
c
District Hospital, Ballia perfonned post-mortem examination on the body of
the deceased Hira Singh and found the following ante-mortem injuries on his
person :

I. Stitched wound 3 cm long on the left side of chest I cm below D
\. the clavicle.and 5 cm left to the mid line. On the removal of
stitches, it is found that there is a stab wound 3 cm x 2 cm x
chest cavity deep on the left side of chest I cm below the clavicle
and 5 cm left to the mid line. Margins of wound are well defined.
Wound is directed downwards and towards the right side.
E
2. Incised wound 0.5 cm x 0.2 cm x skin deep on the left side of
chest in mid axillary line 16 cm behind the axilla and 24 cm left
to the mid line.
->,
The internal examination showed that both the pleurae had punctured.
The right lung had a punctured wound 1.5 cm x I cm x large tissue deep and F
the left lung had a punctured wound 2 cm x I cm x through and through in
upper lobe. The doctor has opined that injury no. I had been caused by a
sharp pointed weapon whose both the edges were sharp and the blade of the
weapon would have been about 3 cm wide. The weapon had punctured up
to the depth of about 7-8 ems. and the injury was not possible by a weapon
whose blade was more than 3 cm in width. The doctor has further opined that G
injury no. I was sufficient in the ordinary course of nature to cause death. No
I
'f
i internal damage had been caused by the second injury as it was skin deep
only. PW-I Ganesh Singh was medically examined in the Distt. hospital at
9.50 P.M. on 14.3.1979 and he was found to have sustained a lacerated
wound on the right parietal region, a contusion with swelling on the right
H
536 SUPREME COURT REPORTS [2006] I S.C.R
...
A parietal region besides two contusions---one each on the right shoulder and
the left knee joint. Two other persons, who received injuries, namely PW-6
Ram Pyari and PW-3 Mohan Yadav were medically examined in the same
hospital on the next day at 11.30 A.M. Ram Pyari was found to have sustained
an abrasion on the head and swelling in the left hand, while Mohan Yadav
B had sustained two lacerated wounds on the fingers of left hand. The injuries
of all the three injured were simple in nature.

16. The medical evidence shows that the deceased had died on account
of stab wound which had been inflicted on the chest (injury no. I). Two
accused, namely, Radha Mohan Singh (A-I) who was armed with spear and
C Devender Singh @ Mutuk Singh (A-4) who was armed with pharsa are
alleged to have assaulted the deceased. Pharsa is a sharp weapon having a
long blade while spear is a sharp pointed weapon. It is, therefore, obvious
that injury no. I, which is a stab wound, was caused by Radha Mohan Singh
(A- I). The pharsa does not appear to have been wielded with any amount of
force or with an intention to cause injury as the incised wound is a very small
D and superficial one being only 0.5 cm x 0.2 cm x skin deep in dimension.
The possibility that the deceased received this injury when he fell down on •
the pathway cannot be entirely ruled out. The remaining accused are not
alleged to have assaulted the deceased but are alleged to have assaulted
Ganesh Singh, Ram Piari and Mohan and the injuries on their person were
E found to be simple in nature. Having regard to these facts the nature of
offence committed by the accused has to be determined.

17. So far as A- I is concerned, his case is fully covered by clause
Thirdly of Section 300 IPC as it can be reasonably inferred that he intended
to cause bodily injury to the deceased by aiming the blow on the left side of
F the chest and the injury was found to be sufficient in the ordinary course of
nature to cause death. Therefore, he is clearly liable to be convicted under
Section 302 IPC. Learned Sessions Judge had framed charge under Section
302 read with Section 149 IPC against all the accused including A-1. In view
of Section 464 Cr.P.C. it is possible for the appellate or revisional court to
convict an accused for an offence for which no charge was framed unless the
G Court is of the opinion that the failure of justice would in fact occasion. In
order to judge whether a failure of justice has been occasioned it will be
relevant to examine whether the accused was aware of the basic ingredients I f

of the offence for which he is being convicted and whether the main facts
sought to be established against him were explained to him clearly and whether
H he got a fair chance to defend himself. In Dalbir Singh v. State of UP.,
RADHAMOHAN SINGH@LALSAHEBr.STATEOFUP [GP MATHUR,!.] 537

'' [2004] 5 sec 334, this question has been examined by a three Judge Bench A
to which one of us (G.P. Mathur, J.) was a party and aforesaid principle has
been laid down. In the present case the witnesses examined on behalf of the
prosecution, whose testimony has been relied upon, clearly deposed that A-
l was armed with a spear and he assaulted the deceased with the said weapon.
In his examination under Section 313 Cr.P.C. a specific question in this B
regard was put to A- I. Therefore, A-1 was made aware of the basic ingredients
of the offence and the main facts sought to be established against him were
explained to him. Thus, he can be convicted under Section 302 !PC for
having committed the murder of Hira Singh.

18. The question arises whether the conviction of the remaining accused C
under Section 302 read with Section 149 !PC is legally sustainable. The
scope of Section 149 I.P.C. was explained in Mizaji v. State of U.P., AIR
(I 959) SC 572, which decision has been followed in many later cases, in the
following manner : .

"The first part of section 149 !PC means that the offence committed D
in prosecution of the common object must be one which is committed
with a view to accomplish the common object. It is not necessary that
there should be a preconcert in the sense of a meeting of the members
of the unlawful assembly as to the common object; it is enough if it
is adopted by all the members and is shared by all of them. In order
-1 that the case may fall under the first part, the offence committed must E
be connected immediately with the common object of the unlawful
assembly of which the accused were members. Even if the offence
committed is not in direct prosecution of the common object of the
assembly, it may yet fall under Section 149 if it can be held that the
offence was such as the members knew was likely to be committed. F
The expression 'know' does not mean a mere possibility, such as
might or might not happen. Though it can be said that when an
offence is committed in prosecution of the common object, it would
generally be an offence which the members of the unlawful assembly
knew was likely to be committed in prosecution of the common
object that does not make the converse proposition true; there may be G
cases which would come within the second part but not within the
first. The distinction between the two parts of Section 149 Indian
Penal Code cannot be ignored or obliterated. In every case it would
be an issue to be determined whether the offence committed falls
within the first part of Section 149 as explained above or it was an H
538 SUPREME COURT REPORTS (2006] I S.C.R.

A offence such as the members of the assembly knew to be likely to be
committed in prosecution of the common object and falls within the
second part."

19. In Alauddin Mian v. State of Bihar, AIR (1989) SC 1456 the import
of Section 149 IPC was explained as under :
B
"....... This section creates a specific offence and makes every member
of the unlawful assembly liable for the offence or offences committed
in the course of the occurrence provided the same was/were committed
in prosecution of the common object or was/were such as the members
of that assembly knew to be likely to be committed. Since this section
c imposes a <;onstructive penal liability, it must be safely construed as
it seeks to punish· members of an unlawful assembly for the offence
or offences committed by their associate or associates in carrying out
the common object of the assembly. What is important in each case
is to find out ifthe offence was committed to accomplish the common
D object of the asser:nbly or was one which the members knew to be
likely to be committed. There must be a nexus between the common
object and the offence committed and if it is found that the same was
committed to accomplish the common object every member of the
assembly will become liable for the same. Therefore, any offence
committed by a member of an unlawful assembly in prosecution of
E anyone or more of the five objects mentioned in Section 141 will
render his companions constituting the unlawful assembly liable for
that offence with the aid of Section 149, it is not the intention of the
le!;,islature in enacting Section 149 to render every member of an
unlawful assembly liable to punishment for every offence committed
by one or more of its members. In order to invoke Section 149 it
F
must be shown that the incriminating act was done to accomplish the
common object of the unlawful a$sembly. Even if an act incidental
to the common object is committed to accomplish the coinmon object
of the unlawful assembly, it must be within the knowlc:dge of other
members as one likely to be committed in prosecution of the common
G object. If the members of the assembly knew or were aware of the
likelihood of a particular offence being committed in prosecution of
the common object, they would be liable for the same under Section
•
149."

20. As mentioned earlier there was no such motive which could have
H
RADHA MOHAN SINGH !liJ LAL SAllEB 1·.STATEOF UP IG.P. MATHUR,J] 539
,. ~ impelled the accused persons to commit the murder of Hira Singh as A
he had merely declined to ask or persuade his younger brother PW. I
Ganesh Singh from giving evidence against A- I and A-5 in the case
.. relating to assault made upon Udai Narain. The statement of Ganesh
Singh had already been recorded under Section 161 Cr.P.C. The
deceased was not himself a witness in the said case. A-2, A-3 and A-
5 did not cause any injury to the deceased. The incised wound on the B
body of deceased is of yery small dimension and is only skin deep,
which shows that A-4 did not wield the farsa with any intention or
object to cause injury to deceased. In view of these features of the
case, it cannot be held that the common object of the unlawful
assembly was to comm it the murder of the deceased or that the c
members of the unlawful assembly knew that murder is likely to be
committed in prosecution of the common object of the assembly.
However, as members of the unlawful assembly carried deadly
weapons, the knowledge that grievous injury may be caused can
certainly be attributed to them. We are, therefore, of the opinion that
\ conviction of A-3, A-4 and A-5 under Section 302 read with Section D
149 IPC deserves to be set aside and instead they are liable to be
convicted under Section 326 read with Section 149 !PC for which a
sentence of 7 years RI will meet the ends of justice.

21. In the result, the appeal filed by Radha Mohan Singh @ Lal Saheb
is dismissed with the modification that his conviction is altered from Section
E
302 read with Section 149 IPC to that under Section 302 IPC. He is sentenced
to imprisonment for life under the said Section. The appeals filed by Kapil
.i.. Deo Singh, Devendra Singh alias Mutuk Singh and Kaushal Kishore Singh
are partly allowed. Their conviction under Section 302 read with Section 149
!PC and the sentence of imprisonment for life imposed thereunder are set F
aside. They are instead convicted under Section 326 read with Section 149
!PC and for the said offence they are sentenced to undergo 7 years RI. The
conviction of all the appellants for the remaining offences as recorded by the
learned Sessions Judge and the sentences imposed thereunder are affirmed.
All the sentences imposed upon the appellants shall run concurrently. The
appellants shall surrender forthwith to undergo the sentences imposed upon G
~
them. The Chief Judicial Magistrate. Ballia (U.P.) is directed to take immediate
~
steps to take the appellants into custody. After the appellants have been taken
into custody, their sureties and bail bonds shall stand discharged.

R.P. AP,peal disposed of.
H

(