SUNIL KUMAR AND ANR.versusSTATE OF U.P.

                   [201 OJ 1 S.C.R. 289


                SUNIL KUMAR AND ANR.                        A
                            v.
                      STATE OF U.P.
            (Criminal Appeal No.1241 of 2003)
                    JANUARY 6, 2010
                                                            B
      [V.S. SIRPURKAR AND DR. MUKUNDAKAM
                   SHARMA, JJ.]

     Penal Code, 1860 - s.304, Part II rlw ss.147 and 149 -
Unlawful assembly with common object - Assault with sticks C
- Death, due to coma as a result of head injuries - Conviction
of accused-appellants - Challenged - Held: Absence of
motive was irrelevant in view of availability of evidence of 3
eye-witnesses, one of whom was father of the deceased -
Their presence at the incident was most natural - All eye- D
witnesses specifically deposed about presence of accused
persons and their individual acts in assaulting the deceased
on his head - Evidence given by them could not be shaken
even in cross-examination - Punishment imposed by Courts
below was lenient - Conviction as well as sentence E
accordingly upheld.

    According to the prosecution, the three appellants
alongwith two others formed an unlawful assembly and
in pursuance of their common object, committed the
                                                            F
murder of PW-1 's son, when he was working in his shop,
by inflicting injuries upon him with /athis/dandas.

    In the post-mortem examination, three injuries were
found on the head of the deceased. According to the
doctors, death was due to coma as a result of the head      G
injuries caused by blunt weapons. The appellants
alongwith the other two accused were charged and
convicted by the courts below under s.304 Part II rlw
ss.149 and 147 IPC and sentenced to rigorous
                          289                               H
    290      SUPREME COURT REPORTS            [2010] 1 S.C.R.


A imprisonment for four years.

       Appellants challenged their conviction before this
    Court. The other two accused had died in the meanwhile.

      The appellants contended that there was absolutely
8 no reason for the accused persons to assault the
  deceased and no motive was attributed to them and in
  absence of any motive, the prosecution case became
  extremely doubtful. It was further contended on behalf of
  the appellants that the evidence of PW-1, being a father,
C would be that of an interested witness and there was no
  possibility of the other two witnesses PW-2 and PW-3
  being eye witnesses, as they were busy in their own
  shops. It was also contended that in any event the
  offences alleged would not come under s.304 Part II IPC
D and at the most would come under s.325 or s.326 IPC.

          Dismissing the appeals, the Court

      HELD: 1.1. Motive in a criminal case is irrelevant
  where evidence of the eye-witnesses is available. In the
E present case, there were as many as three eye-witnesses,
  one of whom i.e. PW-1 was the father of the deceased.
  Therefore, the question of absence of motive would have
  no importance whatsoever. [Para 6] [294-F-G]

F     1.2. It has clearly come in the evidence that PW-1 was
  very much present at the shop of the deceased while the
  shop of PW-2 is just by the side of the shop of the
  deceased. It has also come in the evidence that the shop
  of PW-3 is about 20 yards from the shop of the deceased.
G Considering this position and also considering that it was
  5 O'clock in the evening, there is no possibility of the
  shop remaining closed and under these circumstances,
  the presence of the eye-witnesses would be most natural.
  Therefore, on that count, the evidence cannot be
H discarded. Though it was also suggested that the day on
     SUNIL KUMAR AND ANR. v. STATE OF U.P.           291


which the occurrence took place was Tuesday and as . A
such the market remained closed, but the shops of the
deceased as also the eye-witnesses were in the nature
of small workshops where welding and electric work etc.
was going on and under such circumstances, it is not
possible to hold that such small shops also remained 8
closed on Tuesday. Again, in the wake of the direct
evidence of the witnesses, it cannot be accepted that the
shops were not there. All the three witnesses have very
specifically deposed about the presence of the accused
persons. They have also deposed about the individual C
acts in assaulting the deceased on his head. The
evidence given by these witnesses could not be shaken
even in the cross-examination. [Para 7] [295-A-F]

     1.3. As regards the suggestion that PW-1 had in his
evidence admitted that he did not pay any tax to the        D
municipality and there was no permit which would mean
that there was no shop as such, merely because the
permit was not there, it does not mean that the deceased
was not doing the gas welding work in his shop. In fact,
all the witnesses unanimously stated about the shop         E
being there and the deceased being assaulted. There
appears to be some cross-examination as regards the
identification particularly of PW2. However, this witness
had actually identified all the accused persons since he
knew the deceased as also the accused persons. The          F
Trial Court as well as the High Court considered the
evidence closely and there is no error in their
appreciation. [Paras 8 and 9] [295-F-H; 296-A-C]

    1.4. In view of the seriousness of the wounds, injuries G
on the head of the deceased including the fracture, one
wonders as to how the accused were charged of the
offence under s.304, IPC. It was absolutely incorrect. They
should have been charged under s.302, IPC. However, in
absence of the appeal by the State, this Court is not in a
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    292      SUPREME COURT REPORTS                 [201 O] 1 S.C.R.


A   position to do anything in that regard. The sentence
    imposed upon the appellants is also not harsh as alleged.
    In fact, the punishment is on the lenient side. After all, one
    young life was lost at the young age of 22 years. While
    considering the sentence, merely because the appeal
B   pended and merely because the incident had taken place
    long back would not by itself justify any interference with
    the punishment, particularly, when the punishment itself
    is a lenient one. [Para 10] [296-C-F]

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
C   No. 1241 of 2003.

         From the Judgment & Order dated 12.3.2003 of the High
    Court of Judicature at Allahabad in Criminal Appeal No. 1708
    of 1982.
D
                                 WITH

    Criminal Appeal No. 1242 of 2003.

        A. Sharan, Deepak Singh, Rashid Saeed, (for K.S. Rana),
E   Rachana Srivastava, Noorullah, T.N. Singh, Manoj Kumar
    Mishra (for Kamlendra Mishra) for the appearing parties.

          The Judgment of the Court was delivered by

         V.S. SIRPURKAR, J. 1. This judgment will dispose of two
F   appeals being Criminal Appeal No.1241 of 2003 and Criminal
    Appeal No. 1242 of 2003. The High Court's judgment
    dismissing the appeal and confirming the conviction and
    sentence is in challenge in these appeals at the instance of the
    three accused persons, namely, accused Sunil Kumar, accused
G   Tilak Singh and accused Ram Singh. Originally, five accused
    persons came to be tried for committing offences under Section
    304 Part II read with Sections 147, 504 and 302 read with
    Sections 149, 147 and 504, IPC. They were accused Sunil
    Kumar, accused Jageshwar,. accused Tilak Singh, accused
H   Ram Singh and accused Munna. All the accused persons were
     SUNIL KUMAR AND ANR. v. STATE OF U.P.                 293
              [V.S. SIRPURKAR, J.]
charged and convicted for the offence under Section 304 Part ' A
II read with Section 149 and Section 147, IPC and were
sentenced to suffer rigorous imprisonment for four years. All of
them· filed appeal before the High Court. However, the High
Court convicted all the accused persons.
                                                                   B
     2. Before us only three accused persons have come up in
appeal, they being accused Sunil Kumar and accused Tilak
Singh (in Criminal Appeal No. 1241 of 2003) and accused Ram
Singh (in Criminal Appeal No. 1242 of 2003). It is reported that
accused Jageshwar and accused Munna are no more. That is
how we have to consider the case only of three appellants. They    C
shall be 'referred to as appellant Nos. 1, 2 and 3 respectively.

     3. The prosecution case was that all the accused persons
 had on 23.02.1982 at about 5 p.m. in Mohalla Shivapuri within
the limits of Police Station Orai, District Jalaun formed an D
unlawful assembly with the common object to commit the
murder of Salim and inflict injuries on the person of Salim
causing his death. The matter was reported by Hamid Khan,
father of the deceased immediately at 5.30 p.m. It was
contended therein that when Salim was working in his shop at E
about 5 p.m., the accused persons came to his shop and
started asking Salim whether he considered himself to be a
great gunda since he was showing off in the exhibition ground
and thereafter started abusing him in filthy language. On being
objected by Salim, all the accused started beating him with F
lathisldandas whereupon Salim fell down. The complainant
raised an alarm hearing which witnesses Naeem, Mohd. llyas
@ Naushe and several other persons reached the spot. Seeing
them, accused persons fled away from the scene.

      4. Usual investigations followed and the accused came to G
be arrested barely within 2 or 3 days. The injured Salim was'
serit for Medical examination of the injuries where as many as
six contused wounds were found on his body. Salim had
become unconscious and, therefore, all the injuries could not
be· noted. Salim was thereafter transferred to the Medical H
    294     SUPREME COURT REPORTS                 [201 OJ 1 S.C.R.


A College, Kanpur for treatment where next day i.e. on
  24.02.1982 at 7.55 a.m. he breathed his last. The information
  of death was sent to the Police Station, Swarup Nagar, Kanpur
  and an inquest was prepared of his body. Photographs were
  taken and the body was sent for post mortem examination.
B Salim was hardly 22 years old. In the post mortem examination,
  three injuries were found on his head and it was found that he
  had suffered a linear fracture of parietal bone on both sides
  extending from left ear to right ear. Haemetoma was found in
  the brain and according to the doctors, death was due to coma
C as a result of the head injuries caused by blunt weapons. The
  accused were charged for the offences under Secijons 147,
  304, 323 and 504 IPC. They abjured the guilt. Hamid Khan
  (PW-1), Mohd. llyas @ Naushe (PW-2) and Naeem (PW-3)
  were examined by the prosecution as eye-witnesses along with
  others. Their evidence was accepted and the accused persons
D came to be convicted as stated above. Their appeal also failed
  and that is how the accused persons are before us.

       5. Mr. Amarendra Sharan, learned Senior Counsel who
  appeared in both the appeals attacked the judgment of the High
E Court and the Trial Court firstly, contending that there was
  absolutely no reason for the accused persons to assault the
  deceased and no motive has been attributed to all these
  accused persons. Learned Counsel suggested that basically
  the story of the prosecution in the absence of any apparent
F motive became extremely doubtful.

       6. We are not impressed by this submission since motive
  in a criminal case is irrelevant where evidence of the eye-
  witnesses is available. In this case, there were as many as three
  eye-witnesses one of whom was the father of the deceased.
G Therefore, the question of absence of motive would have no
  importance whatsoever.

       7. Learned Senior Counsel then took us extensively
  through the evidence of three eye-witnesses and pointed out
H that the evidence of the father would be that of an interested
      SUNIL KUMAR AND ANR. v. STATE OF U.P.                  295
              . l'{.S. SIRPURKAR, J.]
  witness and there J,as no possibility of the two other witnesses, A
  namely, Mohd. llyas @ Naushe (PW-2) and Naeem (PW-3)
  being the eye-witnesses as according to the Counsel, they were
  busy in their own shops. But it has clearly come in the evidence
  that the father was very much present at the shop while the shop
  of Mohd. llyas @ Naushe (PW-2) is just by the side of the shop B
  of the deceased. It has also come in the evidence that the shop
  of Naeem (PW-3) is about 20 yards from the shop of the
  deceased which is a tractor repairing workshop. Considering
  this position and also considering that it was 5 O'clock in the
  evening, there is no possibility of the shop remaining closed c
  and under these circumstances, the presence of the eye-
  witnesses would be most natural. Therefore, on that count, the
  evidence cannot be discarded. It was also suggested that the
  day on which the occurrence took place was Tuesday and as
  such the market remained closed. The shops of the deceased
                                                                    0
. as also the eye-witnesses were not big shops and they were
  in the nature of small workshops where welding and electric
  work etc. was going on. Under such circumstances, it is not
  possible to hold that such small shops also remained closed
  on Tuesday. Again, in the wake of the direct evidence of the
  witnesses, we cannot accept the contention that the shops E
  were not there. All the three witnesses have very specifically
  deposed about the presence of the accused persons. They
  have also deposed about the individual actsI in assaulting the
  deceased Salim on his head. There is very little cross-
  examination on the actual occurrence. We have seen the F
  evidence and found that the evidence given by these witnesses
  could not be shaken even in the cross-examination.

     8. It was suggested further that PW-1, Hamid Khan had in
his evidence admitted that he did not pay any tax to the             G
municipality and there was no permit which would mean that
there was no shop as such. Now, merely because the permit
was not there, it does not mean that the deceased was not
doing the gas welding work in his shop. In fact, all the witnesses
have unanimously stated about the shop being there and the           H
    296      SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A   deceased being assaulted. Much of the cross-examination was
    redundant of this witness as also the other witnesses. Same
    is the story of evidence regarding Mohd. llyas@ Naushe (PW-
    2). There appears to be some cross-examination as regards
    the identification particularly of Mohd. llyas @ Naushe. However,
B   this witness had actually identified all these accused persons
    since they all knew the deceased as also the accused persons.

        9. The Trial Court as well as the High Court have
  · considered the evidence closely and we do not think that there
C is any error in the appreciation.

        10. Lastly, it was stated by the learned senior Counsel that
  the offence would not be under Section 304 Part II, IPC. At the
  most it could be under Section 325 or 326, IPC. We do not
  think that we can accept this argument. In fact, seeing the
D seriousness of the wounds, injuries on the head including the
  fracture on the head, we wonder as to how the accused were
  charged of the offence under Section 304, IPC. It was absolutely
  incorrect. They should have been charged under Section 302,
  IPC. However, in the absence of the appeal by the State, we
E would not be in a position to do anything in that behalf. Learned
  Coµnsel also suggested that considering that this incident had
  t~lt;~ place in the year 1982 and sentence of four years would
  be harsh punishment. We do not think so. In fact, the punishment
  is on the lenient side. After all, one young life was lost at the
F young age of 22 years. While considering the sentence, merely
  because the appeal pended and merely because the incident
  had taken place long back would not by itself justify any
  interference with the punishment, particularly, when the
  punishment itself is a lenient one.
G        11. In that view, both the appeals are dismissed as being
    without any merit. The accused persons, who are on bail, shall
    immediately surrender within 15 days failing which immediate
    steps including issuance of non-bailable warrant shall be taken.

H B.B.B.                                      Appeals dismissed.