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2011 DIGILAW 203 (ALL)

Dilip and others v. State of U. P.

2011-01-27

AMAR SARAN, NAHEED ARA MOONIS

body2011
Naheed Ara Moonis, J.;- We have heard learned counsel for the appellants and the learned A.G.A. for the State. 2. The prosecution case, which was mentioned in the F.I.R. lodged by the informant Ashok Kumar P.W. 1 on 13.7.2003 at 9.15 p.m. at P.S. Bajariya, Kanpur Nagar, was that on the same day at 3 p.m., there was a quarrel between the deceased Sushil Kumar, brother of the informant after he intervened in a quarrel between one of the appellants Dilip and two other persons Rohit and Rajan. Consequent to this dispute, on the same night at 8 p.m., Sushil, P.W. 5 Jitoo, Vijay Kumar Yadav and P.W. 3 Ram Lakhan Yadav had gathered out side House No. 104/62 Seesamau, for going to a Grih Pravesh ceremony in that house, at that time, the three appellants Dilip, Arjun Pal alias Palauli, Akhtar Karim alias Achchhe Kariya and one Ankur, (who had been acquitted) came there armed with country made pistols and abused the deceased saying that he was acting as a big neta. They all fired causing injuries to Sushil, who fell at the spot. Other persons who were sitting on cots in the lane, ran away on the firing. The accused persons then left threatening any one in the neighbourhood not to depose in the case. When the deceased was being carried to Hallet Hospital, he died on the way. 3. It was submitted by the learned counsel for the appellants that in the F.I.R., the informant P.W. 1 Ashok Kumar does not describe himself as an eye witness and therefore, his testimony in the Court, where he described himself as an eye witness should be excluded. P.W. 3 Ram Lakhan Yadav and P.W. 5 Jitoo are the only two other witnesses, who have been produced. P.W. 3 has failed to support the prosecution case in Court and has been declared hostile. P.W. 5 Jitoo supported the prosecution case in his examination-in-chief., but in his cross examination, he has turned hostile. The appellant Dilip has been in jail for about 8 years as he was not granted bail during trial. 4. It was also argued that as the charge in this case was framed under section 302 read with section 34 IPC, the conviction of the appellants under section 302 simplicitor was illegal. Reliance for this contention was placed on Atmaram Zingaraji Vs. 4. It was also argued that as the charge in this case was framed under section 302 read with section 34 IPC, the conviction of the appellants under section 302 simplicitor was illegal. Reliance for this contention was placed on Atmaram Zingaraji Vs. State of Maharashtra, decided on 13.8.1997 and Subran @ Subramanian & others Versus State of Kerala, 1993 JIC 545 (SC) and Sohan Lal and others v. The State of U.P., AIR 1971 Supreme Court 2064. He also contended that on the same evidence one of the participants Ankur had been acquitted by the Trial Judge. 5. Learned A.G.A., on the other hand, argued that in this incident, the report was promptly lodged, in which all the three appellants were named. The incident took place in the heart of Kanpur town in a "gali" where witnesses were present. It is not fatal for the prosecution, if the informant fails to describe himself as an eye witness in the First Information Report, if he did not consider it fit to describe himself as an eye witness in the F.I.R. on account of some circumstances, as in his cross examination he has denied not being an eye witness, therefore, his evidence ought not to be excluded. 6. It was further submitted that even if due to the terror of the accused persons, looking to the criminal nature of the act, or due to some inducement, one of the witnesses Ram Lakhan Yadav has turned hostile. Even if the other witness Jitoo had been won over during his cross examination, there was little reason to doubt the veracity of the version given by Jitoo in his examination-in-chief which was consistent with the F.I.R. version. In the decisions in Satpal Vs. Delhi Administration, AIR 1976 SC, 294 and Gura Singh Vs. State of Rajasthan, AIR 2001 SC, 330, it has clearly been spelt out that merely because a witness becomes hostile, his entire testimony is not washed of. It is for the Court to consider, whether it can rely on any part of his testimony and that in this case, the testimony of the witness P.W. 5 Jitoo in his examination in -chief ought to have been relied on. 7. Simply because one accused Ankur has been acquitted in the case, rightly or wrongly, it can provide no ground for not relying on the testimony of P.W. 5 Jitoo. 8. 7. Simply because one accused Ankur has been acquitted in the case, rightly or wrongly, it can provide no ground for not relying on the testimony of P.W. 5 Jitoo. 8. The cases relied on by the counsel for the appellants mostly referred to the situation, where there were a number of accused persons, who had been charged under Section 302 read with Section 34 or 149 IPC. In Atmaram Zingaraji's case (supra), Krishna Vs. State of Maharashtra, AIR 1963 SC, 1413 was relied on. In this case, four persons had been charged under section 302 IPC read with the aid of section 34 IPC. Three persons had been acquitted. In such circumstances, the Court observed that the fourth accused could not be convicted under section 302 IPC with the aid of section 34 IPC. Likewise in Subran @ Subramanian's case (supra), where four of the accused persons had been acquitted, the remaining two persons could not be convicted under Section 302 IPC read with Section 149 IPC, as a minimum number of 5 accused persons are required for convicting an accused with the aid of Section Section 149 IPC. Contrary to this, there are many decisions of the Apex Court viz. Radha Mohan Singh @ Lal Sahab Vs. State of U.P., 2006, Allahabad Criminal Law Reports-0-214 (SC), Lallan Rai Vs. State of Bihar, 2003, Cri.L.J., 465 (SC), Ram Ji Singh Vs. State of Bihar, AIR SCW, 4300 (SC), Gurupreet Singh Vs. State of Punjab, 2006 Cri.L.J., 126 (SC), Mangu Khan and others vs. State of Rajasthan, 2005 Cri.LJ. 1748 (SC), Dalbir Singh Vs. State of U.P., (2004) 5 SCC, 334, Niranjan Sheel Vs. State of Tripura, 1999 Cri.LJ, 4498 (SC), where it has been held that even if an accused is charged under section 302 IPC, he can always be convicted even under Section 302 IPC with the aid of Section 34 IPC, if the allegations disclosed that the accused shared a common intention to commit the crime. The contrary position would obviously apply, where a charge has been framed under Section 302 read with Section 34 IPC. The contrary position would obviously apply, where a charge has been framed under Section 302 read with Section 34 IPC. The Court was not barred from reaching the conclusion that the accused persons had an intention to commit the murder and convicting them under section 302 IPC, if the three persons have been convicted by the Trial Court only under section 302 IPC, but the High Court during final hearing was of the view that accused persons could be convicted under section 302 read with section 34 IPC. In view of the decision of the Apex Court in Nalla Bothu Venkaiah Vs. State of Andhra Pradesh, 2002 Cri.LJ, 4081 (SC), paragraph 23, it is clear that even if an accused can be convicted simplicitor under section 302 IPC, if the fatal injury can be attributed to the accused. Wrongful acquittal by the Trial Court, even if it stood, it would not impede the conviction of the appellants under section 302 read with section 149 IPC where there is a charge under section 302 with the aid of Section 149 IPC. The conviction could also be recorded under Section 302 read with Section 34 IPC in place of Section 302 read with 149 IPC, if a finding was reached that the criminal act was committed by several persons less than 5 in numbers in furtherance of their common intention. 9. Considering the aforesaid submissions and without expressing any opinion on the merits of the case and looking to the gravity of the matter, even though the principal appellant Dilip has undergone 9 years in jail, we are not inclined to grant bail to the appellants. Prayer for bail of the accused appellants is rejected. 10. However, hearing of the appeal is expedited. 11. Office is directed to prepare the paper books preferably within three months and to list the appeal for hearing thereafter. 12. We also leave it open for the State or complainant to file an appeal to challenge the non conviction of the appellants under Section 302 read with Section 34 IPC and their conviction only under Section 302 IPC. 13. Let a copy of this order be given to the Sri M.P. Yadav, learned A.G.A. within a week for necessary action.