RAM MANORATHversusSTATE OF U.P.

                                                                               195

                          RAM MANORATH                                                  A
                                    v.
                             STATE OF U.P.

                             March JO. 1981
                                                                                        B
             [ Y.V. CHANDRACHUD, C.J. AND A.P. SEN, J.]
     Indian Penal Code 1860, Ss. 302 and 149-Murders committed by members of
an unlawful assembly-Acquittal of some-Effect on prosecution of remaining-
Death sentence for two and life sentence for others-Propriety of.

      Out of twelve persons, charged with the offences under section ~302 read
with section 149 I.P.C. and various other charges, eight were convicted. Two
                                                                                        c
of them, C and R were sentenced to death while the others were sentenced
to imprisonment for life. The High Court upheld the death sentence of two
accused, acquitted one and confirmed the conviction of others.


     The case of the prosecution was that on the day of the occurrence at
about sun-set C shot dead two of the deceased while two others were shot by             D
R. The prosecution relied on the dying declaration of one of the deceased
and examined four eye witnesses.

      Jn appeals to this Court it was contended on behalf of the appellants
that the fact that the trial court did not find it safe to accept the prosecution
evidence and acquitted five out of twelve persons mentioned in the F.I.R. at
one stage or the other should be sufficient to discard the prosecution case in          E
respect of the other accused as well.

     Allowing the appeals in part,

      HELD : l(i). It is difficult to hold that the witnesses had made out an
entirely false or concocted story against the appellants. The circumstance that
three of the four prosecution witnesses had been injured during the course of the       F
incident affords a strong guarantee of their presence at the scene of the occurrence.
There is also no reason why the four eye witnesses should falsely implicate per-
sons against whom they had no grouse. [197 F-G]

      (ii). The reason why the trial court and the High Court acquitted some
of the accused was that in the case of some of them there was a possibility of
mistaken identity while, in regard to some others, the evidence was not of such a       G
nature or character as to justify the acceptance of their complexity beyond a
reasonable doubt. [197 HJ                     ·

      2. One of the accused J must be acquitted for the reason that though his
name was mentioned alongwith the names of eleven others at the outset of the
First Information Report, the text of that report does not attribute any part to        H
him ·at all. His name had been included in an omnibus manner, by sayini:
that he along with others wielded his latbi. [198 C-D]
    196                       SUPREME COURT REPORTS                    (1981] 3 S.C.R.

A         3. It is unsafe to sentence C and R to death. One of the deceased imp-
    licated R in his dying declaration as the person, who shot at him but as pointed
    out by the Trial Court itself, the dying declaration suffers from several infirmities
    and, it cannot therefore, be relied upon for the purposes of holding that it was
    this accused, who shot the deceased. Secondly, the occurrence took place an
    hour after sun-set and it is hardly likely that if a large group of ten or twelve
    persons had formed an unlawful assembly, the witnesses would be in a position
B   to identify minute details of the incident. The prosecution version in regard to
    specific overt acts that C and R fired shots resulting in the fatal injuries to the
    two deceased seems exaggerated. No distinction can be made in the case of the
    other accused, who have been sentenced to life . imprisonment and the case of
     these two accused. The sentence of death imposed on them is, therefore, set
     aside. They are sentenced to imprisonment for life. [198 E-G, 199 B-D]

c        4. The conviction and sentence of the remaining appellants are con-
    firmed. [199 E]

         CRIMINAL APPELLATE JURISDICTION                     Criminal Appeal Nos.
    345 & 346 of 1978.

          Appeals by special leave from the Judgment and Order dated
D   14.1.1978 of the Allahabad High Court (Lucknow Bench) in Crimi-
    nal Appeals Nos. 496, 508 and 542 of 1977.

            Frank Anthony and Sushi! Kumar for the Appellant.

          H.R. Bhardwaj, G. S. Narayanan and R. K. Bhatt for the,
E    Respondent.

            The Judgment of the Court was delivered by

           CHANDRACHUD, C. J. Twelve persons were put up for trial
     before the learned Additional Sessions Judge, Bahraich on various
F    charges, the principal charge being under section 302 read with
     section 149 of the Penal Code. The learned Judge acquitted four
     persons and convicted the remaining eight of the offences of which
     they were charged. Two out of those eight persons namely, Chhotey
     and Ram Manorath were sentenced to death while the remaining
     aix were sentenced to imprisonment for life. The sentences awarded
     for the other offences were directed to run concurrently with that
G
     sentence. The High Court of Allahabad acquitted one more person
     and convicted the remaining seven. The High Court also uphel(!
     the death 11entence awarded to Chhotey and Ram Manorath. Froiu
     out of the ieven persons convicted by the High Court, only six are
H     before us iince one of them,. Baijnath, who was awarded Uf~
     impriionmenf has not appealed from the judgment of the Iileh
      Court.
     RAMMANORATH ETC. v. U.P. STATE (Chandrachud, C.J.)          197

     The incident out of which these proceedings arise took place        A
at about sunset time on December 5, 1973 in a village called
Bhawanipur. Four persons died during the course of that incident,
namely, Guley, Abbas, Wali Mohammad and Nankau. Guley and
Abbas are alleged to have been shot dead by Chhotey while the
other two are alleged to have been shot by Ram Manorath. Guley
and Abbas died instantaneously, Nankau a little later and Wali           B
Mohammad about a week later.

     In support of its case the prosecution examined four eye
witnesses : Noor Mohammad, P. W. 1, Shaukat Ali, P. W. 2,
Nafees, P. W. 4 and Naeem, P. W. 5. The prosecution also relied
on the dying declaration of Wali Mohammad which was recorded             c
by a Magistrate. The evidence of these four witnesses as also the
dying declaration have been accepted by both the Courts.

       Shri Frank Anthony, who appears on behalf of five out of the
six appellants before us, has drawn our attention to various circum-
stances which according to him render the entire prosecution case        D
suspect and ·unacceptable. It is urged by the learned counsel that
a large number of persons were roped in on mere suspicion which
is shown by the very fact that five out of the 12 persons who were
mentioned in the First Information Report were acquitted at one
stage or _the other for the reason that it would not be safe to accept
the evidence led by the prosecution against those persons. The           E
same test, according to the learned counsel, must apply to ths cases
of the remaining accused also. Having considered this submission
and the other submissions made by the learned counsel, we find it
difficult to hold that the witnesses have made out an entirely false
or concocted case against all the appellants. Out of the four eye
witnesses examined by the prosecution, Noor Mohammad, Shaukat            F
Ali and Nafees were indisputably injured during the course of the
incident in question and that circumstance affords a strong guarantee
of their presence at the scene of offence. Counsel himself urged
that there was no motive for the offence. If that be so, we are
unable to understand why the four eye witnesses should falsely           G
implicate persons against whom they have no grouse. The reason
for the acquittal of some of the accused by the Trial Court and
the High Court is that there was, in the case of some of them, a
possibility of mistaken identity while, in regard to some others, the
evidence was not of such a nature or character as to justify the
acceptance of their complicity beyond a reasonable doubt. The            H
 injuries received by Shaukat Ali, P. W. 2 are quite serious. P. w. 4,
    198                   SUPREME COURT REPORTS             [1981) 3 S.C.R.
A   Nafees was not concerned ·with the incident in any other manner
    because he was engaged as a mere labourer by the deceased, Wali
    Mohammad. In so far as the remaining two witnesses nameiy,
    P.W.l and 5 are concerned, their presence was virtually admitted
    on behalf of the principal accused Baijnath who has not chosen to
    file any appeal before us.
B
           Though this is the true position, we do not consider it proper
    to accept wholly the evidence led by the prosecution without exa-
    mining the case of each one of the accused. In that process we
    find that the appellant Jaisee ought to be acquitted. It is undoubtedly
    true as contended by Shri Bhardwaj, who appears on behalf of the
c   State of Uttar Pradesh, that Jaisee's name is mentioned in the
    F.I.R. and that he has been implicated by all the four prosecution
    witnesses. But the difficulty which we find in accepting the case of
    the prosecuti0n against this accused is that though his name is
    mentioned along with the names of eleven other persons at the
    outset of the First Information Report, the text of that report does
D    not attribute any part to him at all. His name has been included in
     the text of the report in an omnibus manner by saying that he, along
     with others, apart from Chhotey and Ram Manorath who were
    armed with guns, wielded his lathi.

          There is one more aspect of the matter which merits serious
E   attention, and that is whether the death sentence imposed on Chhotey
    and Ram Manorath must be confirmed. Having given our anxious
    consideration to this question, especially since four persons were
    done to death, we find it unsafe to sentence these two accused to the
    extreme penalty of law. In so far as Ram Manorath is concerned,
    he is alleged to have shot at Wali Mohammad and Nankau. Wali
F   Mohammad has implicated Ram Manorath in his dying declaration
    as the person who shot at him but, Shri Sushi! Kumar, who appears
    for Ram Manorath, has very tellingly demonstrated how unsafe it
    will be to accept the dying declaration. The learned Trial Judge
    has himself pointed out in paragraph I 04 of his judgment the
    various infirmities from which the dying declaration suffers. We
G   are quite clear that the learned counsel is right in cautioning the
    Court against the acceptance of the dying declaration which suffers
    from the infirmities pointed out by the Trial Court. We cannot,
     therefore, rely on the dying declaration for the purpose of holding
     that it was Ram Manorath who shot at Wali Mohammad. But
H    then Shri Bhardwaj relies on the evidence of the four witnesses and
     contends that the part played by Ram Manorath is established on
         RAMMANORATH ETC. v. U.P. STATE (Chandrachud, (C.J.)            199

 that evidence. On that aspect of the matter, we have a serious                A
  difficulty in accepting· at its face value the evidence of these witnesses
 in so far as they say that they saw Chhotey and Ram Manorath
 firing shots at Guley, Abbas, Wali Mohammad and Nankau. It
 may be recalled that the incident occurred on December 5, 1973
 and the almanac shows that the time of the sunset on that day was
 5.13 p.m. The incident happened nearly an hour after the sunset               B
 and it is hardly likely that if a large group of ten or twelve persons
 had formed an unlawful assembly, the witnesses would be in a
 position to identify minute details of the incident. There is not the
 slightest doubt that the four persons, who died during the course of
the incident in question, were done to death by persons who were
 members of the unlawful assembly, some of whom have been con-                 c
victed by the trial court and the High Court. But we are unable
to accept the prosecution version which, in regard to specific overt
acts seems exaggerated, t'J.at Chhotey and Ram Manorath fired the
shots which resulted in the fatal injuries. No distinction can,
therefore, be made in the cases of the other persons who have been
sentenced to life imprisonment and the cases of these two persons.             D
We must, therefore, set aside the death sentence imposed upon them.

      The result is that the appeals are partly allowed. The appellant
Jaisee is acquitted of all the offences of which he was charged and
he shall be released so far is the present case is concerned. The
conviction of appellants Chhotey and Ram Manorath for the                      E
various offences is confirmed but the sentence of death imposed
upon them is set aside. We sentence them to imprisonment for life.
The conviction and sentence of the remaining appellants are
confirmed.

N.V.K.                                            Appeals partly allowed.      F