RAKESH AND ORS.versusSTATE OF U.P.

                            RAKESH AND ORS.                                       A
                                   v.
                              STATE OF U.P.

                               JULY 18, 2002

               [Y.K. SABHARWAL AND H.K. SEMA, JJ.]                                B
       Penal Code, 1860: Sections 147, 149, 302 and 304Part111149. Murder-
Identity of accused not established-Accused acquitted on benefit of doubt-
Correctness of-Held, doubt in the story of the prosecution has to be reasonable
and not in1aginary-On the testimony of prosecution witnesses corroborating
from records, if it stands established that accused had committed the murder,     C
 they could be held guilty of the charge.

           According to the prosecution, there was enmity between accused
persons and deceased. Earlier one 'R', an MLA, was allegedly murdered
by the deceased who was convicted by the Sessions Court. However, on
appeal High Court set aside the conviction. On the fateful day, when PWl/ D
Complainant alongwith deceased was returning fro~ his aunt's house,
both of them were intercepted by the accused persons and they had beaten
the deceased brutally in the presence of several persons including PW2.
On the complaint of PWl, an FIR was recorded; soon after Sub-Inspector
(PW4) went to the spot and found the deceased in precarious condition. E
Two of the accused present there were arrested; blood stained clothes were
recovered and deceased was sent to hospital where he succumbed to his
injuries. Another report was lodged by one of the accused alleging that
deceased went to the house of 'R' to molest his widow.

      Sessions Court acquitted four of the accused-appellants as they were        F
not arrested at the place of occurrence of crime and as their identity had
not been established. Two of the accused were not convicted for offence
under Section 302/149 I.P.C. but were convicted under Section 304 Part
Il/149 I.P.C. as it was not clear as to which of the injuries had proved
fatal and who had caused the injuries. High Court allowed the State               G
appeals and convicted all the six accused for offences under Section 147
and 302/149 IPC for the murder of deceased. Hence these appeals.

      lt was contended for the appellant that High Court was under a
wrong impression that one of the accused was son of 'R' while in fact he
was son of another person of similar name; and this was because the H
                                 213
    214                    SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A Investigating Officer did not mention the parentage of the accused persons
    in the site plan.

          Dismissing the appeals, the Court

        HELD: 1. Many of the injuries on the deceased are clearly deep
B injuries on head. The Sessions Court did not consider the impact of these
  injuries and instead convicted accused 'A' for offence under Section 304
  and not under Section 302 on the ground that it was not clear as to which
  of the injuries had p'roved fatal. The Sessions Court lost sight of the fact
  that the accused has also been charged for offence under Section 302/149
C IPC. The view of the Sessions Court was clearly perverse. The High Court
  has given valid and justifiable reasons for setting aside the conviction
  under Section 304 and convicting accused 'A' for offence under Section
  302/149 IPC.

          2.1. As regards the appeals of the other four accused, the Additional
D Sessions Judge after rejecting the defence story of deceased having visited
  the house of late 'R' to molest his widow held that all the accused, including
  those whose identity had not been properly established, were concerned
  in the matter. In view of the identity of four accused persons not being
  established these accused were acquitted by the Additional Sessions Judge
  who held that there might be some other persons with the same name.
E The doubt in the story of the prosecution has to be reasonable and not
  imaginary. Undoubtedly, one of these accused was the Secretary of 'R'
  and was involved in getting the bail of PWl cancelled in the murder case
  against him. No specific role was established against him and insofar as
  accused 'S' is concerned, his name was not mentioned in the FIR and for
  these reasons they were entitled to benefit of doubt, their identity having
F not been established. In the FIR though name of the said accused was not
  mentioned as younger son of 'R', High Court on thorough scrutiny of the
  evidence has rightly reversed the judgment of acquittal of these accused.

          2.2. Omission to mention the parentage of the accused and the
G witnesses in the written report of PWl did not mean that the FIR was
    written afterwards. On the facts of the case, it rather lends assurance to
    the testimony of complainant. The report was lodged within minutes. The
    anxiety of PWl was to save the deceased from being beaten by the accused.
    He wanted immediate action. The conduct of complainant was even held
    by the Additional Sessions Judge to be natural. Despite his evidence these
H   four accused were given benefit of doubt on the ground of their identity
                RAKESH v.STATE [Y.K. SABHARWAL, J.]                  215
not being established, The High Court very rightly held that on the A
testimony of PW! corroborated from other records it stood established
that these persons had committed the murder of deceased, They were
found guilty of the charge under Section 302/149 and Section 147 IPC.
                                          1219-F-H; 220-A-D; 220-E-Gj

      2.3. The High Court has wrongly noticed that accused 'M' is the       B
son of 'R'. That mistake, however, is of no consequence in the facts and
circumstances of the present case since he was identified by PW! and PW2.
There could be no question of PW! and PW2 taking some other 'M' as
the accused.
      3. Enmity between the two groups was admitted and fully C
established. The doubt that on account of the said enmity PWI may name
the four accused could only mean that the Court may, on material aspects,
look for corroboration to the testimony of PWl. In the present case the
testimony of PW2 also lends credence to the prosecution story. PW2 was
also one of the persons to have witnessed the occurrence and was named D
in the FIR. He had deposed that he had seen all the six accused beating
the deceased and four of them had left before arrival of police. And two
of the accused were found by police on the spot. He has also identified all
the accused. PW2 having not intervened or shouted was explained by him.
The conduct of PW2 was very natural. He was friendly with the other
accused who,.: identity was also in doubt; he used to visit his house. It E
was not suggested that he had seen any other accused. In the facts and
circumstances of the case, parentage of accused is of no consequence
having regard to the testimony of PWs 1 and 2. (221-B-E]
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
199-200 of 1998.                                                            F
     From the Judgment and Order dated 1.10.1997 of the Allahabad
High Court in S. Crl. A. No. 1067 and 1068 of 1979.
                                 WITH
     Crl.A. Nos. 201-202 of 1998.
                                                                            G
     Sushi! Kumar, Sanjay Jain, J.D. Jain, S.N. Bhardwaj, Praveen Swarup,
Prashant Chaudhary and Pramod Swarup for the appearing parties.

     The Judgment of the Court was de livered by

     Y.K. SABHARWAL, J. In these appeals Arjun Singh, Rakesh, Mahesh,       H
    216                    SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   Rajbir and Sarjan Singh are the appellants. They have been convicted by the
    impugned judgment of the High Court for offences under Sections 147 and
    302/149 IPC and ordered to undergo one year's rigorous imprisonment each
    for offence under Section I 4 7 IPC and life imprisonment for offence under
    Section 302/149 IPC. The High Court had, thus, allowed the State appeal
B   against acquittal in respect of Rakesh, Mahesh, Sarjan Singh and Rajbir and
    also the appeal of the State wherein Arjun Singh's conviction by the Sessions
    Court under Section 304 Part 11/149 instead of302/149 had been challenged.
    The Sessions Court had imposed on Arjun Singh the sentence for a period of
    five years for offence under Section 304 Part II/149 IPC besides one year for
    offence under S.ection 147 IPC. The appeal of Arjun Singh challenging his
C   conviction by the Sessions Court was dismissed by the High Court.

           All the aforesaid five accused along with Bhanwar Singh who died
    during the pendency of the appeal before the High Court were charged, inter
    alia, for offence under Sections 302/149 IPC for the murder of Dharam Pal.
    Along with Arjun Singh, Bhanwar Singh was also convicted by the Sessions
D   Court for the offence as aforesaid for which Arjun Singh was convicted and
    similar imprisonment was imposed on Bhanwar Singh.

          One Raja Ram was an M.L.A. Bhanwar Singh was his brother. Arjun
    Singh and Sarjan Singh are the sons of Raja Ram. Rajbir is his nephew.
    Mahesh was Secretary of the said Raja Ram. Dharam Pal, deceased in the
E   present case, was accused of murder of Raja Ram. Dharam Pal was the uncle
    of Subhash Chand, PWl, who is the son of one Ambar Singh. Subhash
    Chand, Dharam Pal and Ambar Singh and one Laik Singh were four accused
    in the case of murder of Raja Ram which had taken place on 20th May, 1973.
    The incident which is the subject matter of these appeals took place on 20th
    February, 1975, when trial against Subhash Chand, Dharam Pal, Ambar Singh
F   and Laik Singh was pending. They were convicted of the offence of murder
    of Raja Ram by Court of Sessions on 9th April, 1977, which was, however,
    set aside by the High Court in appeal on 6th November, 1984.

          PWl, Subhash Chand, made a written complaint to the police which is
G the basis of the recording of the FIR, that, he accompanied by Dharam Pal
    was returning from the house of his Aunt and when they reached near octroi
    out-post, on pushing of bicycle by Bhanwar Singh, Rajbir, Arjun Singh,
    Rakesh, Mahesh and Raja Ram's younger son, Dharam Pal fell down. These
    people started beating Dharam Pal and he took refuge in the lane and k~t
    on looking these persons beating Dharam Pal. The incident was seen by
H   several persons viz. Rajbir, Ram Khilari (PW2), Kishan and Partap etc. PWl
                   RAKESH v.STATE [Y.K. SABHARWAL. J.]                       217

requested in his report that Dharam Pal be got released from the house of            A
Raja Ram lest these people may kill him. Soon after the report was lodged
with S.H.O. Police Station, Ferozabad (South), S.I. Dharam Pal Singh PW4
went to the place of occurrence and found Dharam Pal lying in the house of
late Raja Ram in precarious condition. The accused Bhanwar Singh and
Arjun Singh were arrested from the place of occurrence. Besides other articles,      B
their blood stained clothes were also recovered. Dharam Pal was sent to
hospital. On the same day while the investigation was under progress, PW4
received intimation about the death of Dharam Pal in the hospital. According
to Bhanwar Singh who had also lodged a report with the police, Dharam Pal
had come to the house of Raja Ram to molest widow of Raja Ram.

      The prosecution examined PW! Subhash Chand, PW2 Ram Khilari,
                                                                                     c
PW4 Dharam Pal Singh the Investigating Officer, besides PW3 a formal
police \Vitness.

      The Sessions Court disbelieved the story of Dharam Pal having visited
the house of Raja Ram with a view to molest his widow and on consideration           D
of evidence convicted Bhanwar Singh and Arjun Singh as noticed hereinbefore.
Dharam Pal was not in possession of any weapon. Their conviction by the
Additional Sessions Judge, however, was not under Section 302/149, the
offence for which they were charged but was under Section 304 Part 11/149
!PC. The reason noticed by the learned Additional Sessions Judge for not             E
convicting them of the offence charged was that it was not clear as to which
of the injuries had proved fatal and who had caused the injuries. Regarding
acquittal of the aforesaid four appellants, in the view of the Additional Sessions
Judge, their identity had not been established and they were not caught from
the place of occurrence like Bhanwar Singh and Arjun Singh.
                                                                                     F
      The High Court, as already noticed, overturned the acquittal of the four
accused and along with Arjun Singh they were held to be guilty for the.
offence of murder of Dharam Pal under Section 302/149 IPC.

      We have heard Mr. Sushi! Kumar, learned senior counsel in support of
appellants Rakesh and Mahesh, Mr. Bhardwaj for Rajbir, Sarjan Singh and              G
Arjun Singh and Mr. Praveen Swarup for the State.

     Taking up the case of Arjun Singh first it is evident that the Sessions
Court altogether lost sight of the injuries which were admittedly found on
Dharam Pal. Since post mortem report was admitted, the formal proof was              H
    218                    SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   dispensed with on the consent of counsel for all the accused and that is the
    reason of non-examination of any doctor in the Court. The following ante-
    mortem injuries were found on the body of Dharam Pal.
                                                                                   ..
           I.   Lacerated wound- 4 cm x 1.5 cm x bone deep on the right .side
                of the head in front side about 7 cm above the eye brow.
B
           2. ' Lacerated wound- 4 cm x 0.5 cm x bone deep on left side of
                head 8 cm above the left ear.

           3.   Contusion- 0.5 cm x 0.1 cm on the fore front of the nose towards
                down side. The inner bone was broken.
c
           4.   Lacerated wound- 1.5 cm x l cm on left cheek, 4 cm from the
                angle of mouth.

           5.   Many lacerated wounds which were crossing each other on the
                back from neck to buttock out of which the big wound was 24
D               cm x 2 cm and the small wound 2 cm x l cm in the area of 30
                cm west.

           6.   Mark of contusion slanting 4 cm x 2 cm on the back of left
                shoulder.

E          7.   Lacerated contusion- 4 cm x 5 cm left side of the neck on the
                lower side.

           8.   Lacerated wound- 1 cm x 0 cm x bone deep on left arm towards
                lower side as a result the fore arm bone was broken.

F          9.   Lacerated wound- 2 cm x I cm x bone deep which was 0.5 cm
                below injury No.8 in one line.

           10. Lacerated contusion mark- 10 cm x l cm on the left arm above
               the injury No.8.

           11. Lacerated contusion marks 4 in numbers the biggest one was 7
G              cm x 2 cm to 20 cm x l cm on the back side of left fore arm.

           12. Scratch l cm x I cm on the left small finger joint.

           13. Lacerated wound- 2.5 cm x 5 cm x bone deep on left elbow
               backside.
H
I                     RAKESH.v.STATE [Y.K. SABHARWAL, l.]

           14. Lacerated wound 1.5 cm x 0.5 cm x bone deep on the upper side
               of right elbow as a result thereof the lower bone was found
                                                                              219

                                                                                      A

               broken and it came out.

           15. Lacerated wound l cm x l cm x bone deep on the back side of
               left arm pit (Illegible).
                                                                                      B
           16. Lacerated contusion mark 13 cm x 4 cm in the middle of right
               arm.

           17. Swelling injury- 4 cm x I cm on the back side middle of right
               finger of right hand .
                            •
           18. Mark of contusion which was on the whole case of the back of
                                                                                      c
               both the hands.

           19. Lacerated wound- 5 cm x 4 cm on the left thigh which was on
               the area of 6 cm above the knee.
                                                                                      D
           20. Scratch 1.5 cm x 0.5 cm upper side of left knee.

           21. Six lacerated wounds out of which 2 cm x I cm x bone deep as
               a result thereof the lower bone was broken and it came out.

           22. 6 lacerated wound on right leg each having the area of about 3
               cm x 1.5 cm x bone deep (illegible).                                   E
           23. Scratches on the backside of left knee.

           24. Lacerated wound 0.5 cm x l cm x bone deep on left knee of left
               side injury No.22.
                                                                                      F
           Many of the injuries are clearly deep injuries on head. The Sessions
    Court did not consider the impact of these injuries and instead convicted
    accused Arjun Singh for offence under Section 304 and not under Section
    302 on the ground that it was not clear as to which of the injuries had proved
    fatal. The High Court has given valid and justifiable reasons for setting aside
    the conviction under Section 304 and convicting the accused for offence           G
    under Section 302/149 !PC. Regarding the reason as to who had caused
    injuries, the Sessions Court lost sight of the fact that the accused has also
    been charged for offence under Section 302/149 !PC. The view of the Sessions
    Court was clearly perverse and the High Court rightly convicted Arjun Singh
    as aforesaid.
                                                                                      H
    220                     SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A        Reverting to the appeals of the other four accused, Rakesh, Mahesh,
  Rajbir and Sarjan Singh, the Additional Sessions Judge after rejecting the
  defence story of Dharam Pal having visited the house of late Raja Ram to
  molest his widow held that Bhanwar Singh along with Arjun Singh and some
  other persons whose identity had not been properly established were concerned
B in the matter. In view, of the identity not being established these four accused
  were acquitted by the Additional Sessions Judge who held that there might
  be some other Rajbir and some other Rakesh and some other Mahesh though
  undoubtedly Mahesh was the Secretary of Raja Ram and was involved in
  getting the bail of PWI cancelled in the murder case against him. No specific
  role was established against him and insofar as Sarjan Singh is concerned his
C name was not mentioned in the FIR and for these reasons they were entitled
  to benefit of doubt, their identity having not been established. In the FIR
  though name of Sarjan Singh was not mentioned but person concerned was
  mentioned as younger son of Raja Ram. The High Court on thorough scrutiny
  of the evidence has reversed the judgment of acquittal of these accused and
  in our opinion rightly. The doubt in the story of the prosecution has to be
D reasonable and not imaginary.

           It stands established that Rajbir is the son of sister of Raja Ram. Mahesh
    was his Secretary. He was responsible for getting the bail of Subhash Chand
    cancelled. Sarjan Singh is the younger son of Raja Ram. The names of these
E   three along with Rakesh are mentioned in the FIR. The learned Additional
    Sessions Judge has also disbelieved the defence that injuries on Dharam Pal
    were the result of his fall. The omission to mention the parentage of the
    accused and the witnesses in the written report of PW 1 did not show that the
    FIR was written afterwards. On the facts of the case, it rather lends assurance
    to the testimony of Subhash Chand. The report was lodged within minutes.
F   The anxiety of PW! was to save Dharam Pal from being beaten by the
    accused. He wanted immediate action. The con duct of Subhash Chand was
    even held by Additional Sessions Judge to be natural. The Additional Sessions
    Ji.Jdge also observed that it was natural for Subhash Chand not to intervene
    in view of the armed persons who were beating Dharam Pal. Despite this
G   evidence these four were given benefit of doubt on the ground of their identity
    not being established. The High Court very rightly held that on the testimony
    of PWl corroborated from other records it stood established that these persons
    had committed the murder of Dharam Pal. They were found guilty of the
    charge under Section 302/149 and Section 147 IPC. The dispute about the
    identity was only a red herring. It was only a smoke screen. Mr. Sushi!
H   Kumar submitted that the High Court was under a wrong impression that
                  RAKESH v.STATE [Y.K. SABHARWAL, J.]                       221
Mahesh was son of deceased Raja Ram, for the reason that the name of the A
father of Mahesh was also Raja Ram although it was Raja Ram Yaish and the
name of the deceased was Raja Ram Yadav. It does seem that the High Court
has wrongly noticed that the Mahesh is the son of deceased Raja Ram. That
mistake, however, is of no consequence in the facts and circumstances of the
present case. Mahesh was identified by PW! and PW2. He was responsible B
for getting the bail of PW! cancelled. He was the Secretary of Raja Ram.
There could be no question of PW! and PW2 taking some other Mahesh as
the Mahesh accused. Enmity between the two groups was admitted and fully
established. The doubt that on account of the said enmity PW! may name
these four accused could only mean that the court may, on material aspects,
look for corroboration to the testimony of PW!. In the present case the C
testimony of PW2 also lends credence to the prosecution story. PW2 was also
one of the persons to have witnessed the occurrence and was named in the
FIR. He has deposed to have seen all the six accused beating Dharam Pal and
four having left before arrival of police. Bhanwar and Arjun Singh were
found by police on spot. He has also identified all the accused. PW2 having D
not intervened or shouted was explained by him. He deposed that seeing the
incident, he was frightened as earlier Raja Ram had been murdered. The
conduct of PW2 was very natural. He was friendly with accused Rakesh and
used to visit his house. He did not know any Rakesh other than the accused
Rakesh. He also knew Mahesh and Rajbir. It was not suggested that he had
seen any other Mahesh or Rajbir. Mr. Sushi! Kumar, learned counsel, referring E
to the testimony of Investigating Officer submitted that despite perusal of
case diary he could not mention the parentage of the accused persons in the
site plan. It would only show that the parentage of these accused persons was
not mentioned in the site plan. In the facts and circumstances of the case that
is of no consequence having regard to the testimony of PWsl and 2.              F
      The present case is not of mere substitution by High Court of its view
for that of the Sessions Court as contended by Mr. Sushi! Kumar and Mr.
Bhardwaj. Clearly the view of the Sessions Court was perverse. On material
on record and in the facts and circumstances of the case it was not a reasonable
view to take that identity of the four accused had not been established. We        G
have gone through the evidence. In our view no other reasonable view than
what was taken by the High Court was possible. The High Court has for just
and cogent reasons reversed the judgment of acquittal passed by the Additional
Sessions Judge.
                                                                                   H
    222                    SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A         For the aforesaid reasons we find no substance in any of these appeals.
    All the appeals are accordingly dismissed. The conviction and sentence
    imposed by the High Court on all the appellants is confirmed. The appellants
    who are on bail shall be taken into custody forthwith to serve the remaining
    part of their sentence.

B   S.K.S.                                                   Appeals dismissed.