SMT. LAKHIY A DEVI ETC.

GIRJA Y ADA V AND ORS. ETC.

-JIJL Y 14. 1998

/G.T .. 'IANAVATI AND V.N. KHARE. JJ.]

lndiun Penal Code, 1860 :

Ss. 326.//49, J?j. 119 and ]01 Accused urmed with weapons :>et:n by C eyewilnesses chasing th" vicrim Entering thL' room where vic1im too/.. shelter

by breaking open its door Dragging his dead body out of the room and then taking it away High Court disbelieving t:vidence of eye witnes; es as regurds participation of accused is assaulton deceased and selfing aside their conviction u/s 3Jfilf49 and 3251149 But r'onjirming th,, ir convictim1 D U/s 201 Hdd, High Court was nut right in discarding the evidence of eye

wllnesses Order of High Court set aside and order of conviction m recorded by trial court restored Since the incident took place long time back, sentence reduced from 8 years to 5 years R./.

The accused appellants in Crl. Appeal No. 407of1987 were prosecuted E for murder of the son of PWIO, the appellant in Crl. Appeal No. 109of1989.

The prosecution case was that when the son of PWIO was returning to his house from the Kh.ilihan, about 20 persons chased him. He came running to his house and locked himself in a room. The assailants entered the room by breaking open the door and cutting a hole on the thatched roof F of the House, and beat him to death. Thereafter they dragged his body and took it away by scaling the western wall of the house, While they were running towards west of the village, two constables, who were informed about the incident, ran after them and apprehended 4 of them. A sub- Jnspector of Police reached the vill:Jge and took the statement of PWIO, the mother of the deceased. lt was stated that the accused committed the murder because G of previous enmity. Case was rer, istered against 19 persons, but during the trial 2 of them died and the trial proceeded against the remaining 17 accused.

The trial court held that the eye-witnesses exaggerated the manner in which the victim was assaoulted. It also held that one of the accused being H eighty years old was in all probability falsely implicated. He was acquitted 588

L. DEVI v. G. Y ADA V 589

of the charge. As regards the remaining accused, the trial court held that A they were members of an unlawful assembly, the common object of which was to beat the victim and not to cause his death. It convicted the accused under s. 326 read withs. 149 IPC and sentenced each of them to 8 years rigorous imprisonment, except accused 'B' who was convicted under s. 325/149 and was sentenced to 4 years R. I. All the accused were also convicted under s.

201 JPC.

The accused filed appeal before the High Court which, while admitting the appeal, also issued notice for alteration of the conviction for the offence of murder and for enhancement of sentence. On reappreciation of the evidence, the High Court held that though the victim was done to death inside C the room, the accused could not be convicted on the basis of the evidence of the eye- Witnesses as they exaggerated the manner in which injuries were caused to the deceased. In its view, keeping in mind the small size of the room, all the 20 assailants would not have entered the room and everyone of them would not have been able to beat the deceased. The High Court, therefore, set aside the conviction of the accused under s. 326/149 and 325/ D 149 giving them benefit of doubt and discharged the notice for alteration of conviction and enhancement of sentence. However conviction of the accused under s. 201 IPC was confirmed. Aggrieved, the mother of the deceased, the informant in the case, filed Crl. Appeal No. 109 ofl989 against the acquittal of the i:ccused of offences u/s 326/149 and 325/149 lPC as also against the order of High Court discharging the notice for alteration of offence in to one

u/s 302/149 IPC and enhancement of sentence; and the accused filled Crl.

Appeal No. 407/87 against their conviction under s.201 TPC and the sentence as awarded by trial court and confirmed by the High Court.

It was contended for the informant - appellant that the High Court F having believed that murder of the victims was committed inside the room, the door of the room was broken open and the accused had carried away the dead body, should have convicted all of them under s. 302 read with s. 149

IPC

Allowing the appeal of the informant and dismissing that of the accused, G this Court.

HELD: I.I. The High Court was not right in discarding the evidence of the eye-witnesses regarding participation of the accused in the assault on the deceased on the ground that they had exaggerated the manner in which icjuries were caused to the deceased. The presence of all the eye-witnesses H

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A believed by the trial court has not been disbelieved by the High Court. Nor has it disbelieved the presence of all the accused inside the house of the deceased. Though the eye-witnesses have stated that all the accused participated in the assault on the deceased , what the High Court should have appreciated was that the eye witnesses saw the incident from outside that

B small room. From the evidence of the eye - witnesses it stands established that all the accused came running to the house of the deceased; they were armed with weapons; all of them tried to get inside the room; and all of them participated thereafter in carrying away the dead body . It was in that sense that the witnesses stated that all the accused had participated in the assault on the deceased. The eye-witnesses did not state that each of the accused C gave a blow to the deceased and it caused an injury to him.

(594-F; 595-A-CI

1.2. The High Court failed to take into consideration the evidence of the Investigating Officer who narrated about the broken door and roofofthe room, marks of sharp edged weapon on the wall and presence of blood inside the room . The two police constables who had arrived at the scene of the offence immediately after the offence was committed were informed about the manner in which the murder was committed and by whom it was committed. Out of those named an assailants, 4 were actually caught by the two constables who had chased them. Thus the evidence of the eye-witnesses, who even if regarded as interested witnesses because of their enmity with the accused, stood corroborated by the evidence of the police constables and also by the circumstances referred to earlier. (596-DI

1.3. The findings recorded by the High Court are inconsistent inas much as it has believed the prosecution evidence that after the victim had been killed the accused carried away the dead body from the house. The High F Court has confirmed the conviction of the accused under s.201 IPC. If the accused were persons who had carried away the body of the deceased from the small room of his house, then surely they were the persons who had entered his house and in all probability they were the persons who had killed him, otherwise why should they have gone to his house and dragged the body, G as dep_osed by the eye-witnesses and believed by the courts below. It is nobody's case that one set of persons had killed the deceased and other set of persons carried away his dead body. The High Court has completely failed to consider this aspect. [ 594-F-H)

2. The order of the High Court acquitting the accused of the charges H under s. 326/149 and s.325/149 IPC respectively is set aside and the order

L. DEVI v. G. Y ADAY [NANA VA Tl, J.] 591

of their conviction passed by the trial court is restored. As the incident had A taken place long time back, ends of justice would be met if the sentence of rigorous imprisonment of 8 years imposed upon the accused is reduced to 5 years. 1597-BI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. B I 09 of 1989 Etc.

From the Judgment and Order dated 24.9.86 of the Patna High Court in Crl. A. No. 43of1982.

Raju Ramachandran and R.P. Wadhwani for the Appellant.

U.R. Lalit, A. Sharan, Ms. Ambika P. Singh, Ms. Madhu Sharan, Shreeprakash Singh and Anil Kumar Jha for the Respondents.

The Judgment of the Court was delivered by

NANA VA TI, J. Both these appeals arise out of the judgment and order D passed by the Patna High Court in Criminal Appeal No. 43 of 1982. Lakhiya Devi, mother of deceased Chander and the informant in this case, has filed Criminal Appeal No. I 09 of 1989, as the High Court partly allowed the appeal filed by the accused and set aside the conviction of the accused other than accused Budhai under Section 326 read with Section 149 !PC and that of E Budhai under Section 325 read with 149 IPC and also because the High Court discharged the notice issued by it whereby the accused were called upon to answer why their conviction should not be altered to one under Section 302 read with Section 149 !PC and why the sentence imposed upon them should not be enhanced. Criminal Appeal No.407 of 1989 has been filed by the accused as the conviction by the trial court under Section 20 I !PC and the F sentence imposed for that offence have been confirmed.

The prosecution case was that during the night between 6th and 7th April, 1976 Chander Yadav was at his 'Khalihan' situated at a little distance from the village. At about 6 O'clock in the morning, he came running to his G house and after getting the main entrance door opened, he went into a small room where foodgrains used to be stored and closed its door from inside. By that time, about 20 persons including the 16 accused came there running. The assailants were either armed with sticks and sharp weapons. As they saw Chander taking shelter in that small room and closing the door some of them climbed over the roof to make a hole therein and to get inside that room. H

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A Others tried to break open the door of that room. Th.: assailants who had gone ovn the roof were able to make a hole therein and jump inside that room.

By that time the remaining assaitants were also able to break open the door.

AH of them then assaulted Chander and committed his murder. Then they started carrying away the deaci body by dragging it. Lakhiya Devi tried to B prevent them from arrying away the dead body by catching hold of it but accused Saudagar pushed her away by giving a kick on her chest. When her daughter-in-law Shanti Devi tried to prevent them from taking away the dead body she was also pushed aside and threatened. The assailants then carried the dead body of Chander with them by scaling over the western boundary wall of his house and were proceeding towards the west of the village. At C that time two police constables, Shanker Dayal and Kapil Kumar, on being informed about what had happened, ran after the assailants. On seeing the two policemen the assailants started running away but the policemen were able to apprehend four of them. They were Doman, Brahmadeo, Puna, (since deceased) and Jai Natll. After some time a Sub-Inspector of Police of Akbarpur Police Station happened to arrive in the villag~ and on hearing the commotion D went near the house uf Chander and came to know about the incident. He recorded Fard beyan of Lakhiya Devi in the village at about 9.30 A.M. and on the basis thereof an offcni:e was registered against l 9 persons. During the pendency of the trial two accused Jagdish and Puna died and, therefore, the trial proceeded against the remaining 17 accused. It was alleged against all E of them that they had committed the murder of Chander in prosecution of their common object and because of the previous enmity.

In order to prove its case the prosecution had mainly relied upon the evidence of 6 eye-witnesses and the two police constables who had apprehended the above-named 4 accused. The accused had also examined 7 F eye-witnesses in defence and that was mainly for the purpose of estabtishing the plea of alibi.

The tra: court bdieved the evidence of the eye-witnesses and the two police constables, as it ; tood corroborated by the find of broken door, broken G roof and a trail of blood from the said room upto the western boundary wall of the house of Chander. At the same time it also held that the eye-witnesses has exaggerated the manner in which the deceased was assaulted and it was likely that all the accused had not taken part in beating Chander. It also held that in all probabitity the accused Doman who was 80 years o; d was falsely implicated as one of the persons who had participated in the assault on H Chander. Taking this view of the evidence the trial court further held that all

L.DEVIv.G. YADAV[NA~AVATI.J.J 593

the accused except Doman were members of an unlawful assembly. the common A object of which was to beat Chander and not cause his death. Accordingly

it convicted all the accused under Section 326 read with Section 149 IPC and sentenced them to suffer rigorous imprisonment for a period of 8 years.

Budhai was convicted under Section 325 read with Section 149 IPC as he was armed with a stick and was sentenced to suffer R.I. for 4 years.

Aggrieved by the conviction the accused preferred an appeal to the High Court. As stated earlier, the High Court while admitting their appeal had issued a notice for alteration of the conviction for the higher offence of murder and also for enhancement of sentence. The High Court, on reappreciation of the evidence, found that the version given by the eyc-wimesses C was not supported by the medical evidence. The eye-witnesses had stated that all the 20 assailants had assaulted Chander but the number of injuries found on his person were only eight. Six of them were incised wounds and 2 were abrasions. The reasoning of the High Court was that if all the 20 assailants had participated in the assault then the number of injuries on the person of Chander would have been more. The High Court also held that the D eye-witnesses had exaggerated the manner in which Chander was assaulted

... and killed. It observed that as the room in which Chander was killed was small all the 20 assailants would not have entered that room and everyone of them would not have been able to beat Chander. If all the 20 assailants had entered

that room and wielded their weapons that would have left some marks of E violence on the walls and the Kothis (big earthen jars) which were kept in that room. The heap of potatoes lying in that room would have been disturbed.

If the roof was cut and a hole was made therein then the cut portion of the roof and broken tile; would have been found inside that room but no such articles were attached by the investigating officer from that room. For all these reasons the High Court held that, though it believed that Chander was done F to death inside that room, the evidence of the eye-witnesses as regards the manner in which Chander was killed could not be relied upon. The High Court, however, believed their evidence as it was corroborated by the evidence of the two police constables and the trail of blood starting from that room and going upto the western boundary of that house and held that the accused Q had then carried away the dead body of Chander from that room. It, therefore, confirmed their conviction under 5ection 20 l IPC and giving benefit of doubt to them on the ground that Chander was not beaten in the manner stated by the eye-witnesses, set aside the conviction of all the accused except Budhai under Section 326 read with Section 149 !PC and that of Budhai under Section 325 read with Section 149 !PC and acquitted them of all other charges. H

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,\ ( onsquently the notice issued for altt:ration of their conviction for the

higher offence and enhancement of sentence was also discharged.

\-Ir. Raju Ramchandran, :earned senior advocate appearing for Lakhiya lkvi contended that the High Court committed a grave error in ac4oitting the o; ccused as stated above and that has also led to failure of justice. lie B submitted that the High Court having belkved that murder of Chander was

t:ummitted inside his house in that small room, that the door of that room was broken open and that the accused had then carried away the dead body by dragging it, ought to have believed that th.: accused were atso the murderers and should have convicted a!! of them under Section 302 read with Section C 149 !PC. On the other hand it was contended by :Vlr. U .R. Lalit. '.earned senior advocate appear; ng for the accused, that even though it is possible to take a diferent view on re-appreciation of the evidence, this Court should not interfere with the order of acquittal, as it cannot be said that the view taken by the High Court is perverse or so unreasonable as to justify interforence by this Court.

As stated earlkr t'1e prosecution had examined 6 eye-witnesses inctuding l.a1'hiya Devi (PW 0) to prove that the accused 11ad committed murder of Chander. The trial court believed the presence of all these eye-witnesses. The High Court did not disbelieve it. Tht: reason given by the High Court for not E convicting tht: accused for the murder of Chander on the basis of thetr

evidence was that they had exaggerated th" manner in which injuries were caused to Chander. We have already set out earlier the reasons given by the High Court for taking that view. In our opinion, the High Court was wrong in rejecting the cvid.:nce of the eye-witnesses on this ground. Mort:over, the findings recorded by it are inconsistent inasmuch as it has bt:lieved the F prosecution evidenc.: that after Chander was killed the accused had carried away the dead body from the house. The High Court has confirmed the conviction of the accused under Section 20 I !PC. If accused were the persons who had carried away the dead body of Chander from that small room of his house then surely they were the persons who had entered tht: house of G Chander and in all probability they were the persons who killed him. If tht:y

were not the person' who had killed chandt!r then why should they haw gone to his house and dragged the dead body from that room right upto the western boundary of the wall upto the pipal tree situakd in the west of that village. It was nobody's case that one set of persons had killed Chander and another set of pt:rsons had carried away his dead body. The High Court has H completely failed to consider this aspect.

L. DEV Iv. n. Y ADA V [NAN A. VAii. J. [ 595

Though all the eye-witnesses have st<itc:d that al! the accused had A panicipated in the assault of Chander what the High Coun should have appreciated was that the eye-witnesses had >cen the incident from outside that small room. All the accused had come running to the >10use of Chander.

They were armed with weapons. All of them had tried to get 'nside that room and all had participated thereafter in carrying away the dead body of Chander.

It was in that sense that the witnesses had stated that all the accused 1iad panicipated in the assau It on the deceased. The eye-witnesses had not stated that each of the accused had given a blow to Chander and that his blow had caused an in, iury to him. The High Court was. therefore. wrong in holding that the evidence of the eye-witnesses stood contradicted by the medical evidence on record.

The second reason given by the High Court for disbelieving the evidence of the eye-witnesses was that looking to the smallness of that room it was not at aH :ikely that ail the 20 assailants were able to enter into that room and assault Chander. The size of that room was about 1 l' x 8'. It was, therefore,

not impossible. as believed by the High Court, for atl the accused to have D entered that room. As deposed by the investigating officer there were only two earthen jars in that room. Not only the two flaps of the door of that room but the southef'l wall inside that room had marks caused by sharp edged articles. He had also noticed that the dour was broken open. Blood had also fallen on the small heap of potatoes. The High Court failed to take into consideration this evidence and erroneously proceeded on the basis that no marks of violence were found on the inner walls of that room and that in all probability aH the accused could not have entered that room as it was too small.

One more reason given 1by the High Court for not placing reliance upon F the evidence of the eye-wit11esses was that all of them had stated that 6 accused had climbed over the roof of that room and had cut a hole therein whereas no cut portion of that room nor the broken tiles were found inside that room. Regarding cutting of the roof also the High Court had not correctly appreciated the evidence of the eye-witnesses and the investigating otlicer. G All the witnesses have stated that it was a thatched roof with tiles. The height of that roof was about 6' 5". the investigating officer had deposed that he .. had noticed a small opening having been made in the south western portion of that roof and that some pieces of broken tiles were lying near that room.

That clearly ; ndicatcd that the accused had removed some tiles and thrown them on the ground outside the room. Therefore, not finding any cut portion H

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A of that roof or the broken tiks inside that room was not a circumstance justifying raising of any doubt regarding truthfulness of their evidence. The fact that a hole was made in the roof and broken pieces of tiks were lying near that room was recorded by the inwstigating officer. Merely because of the omission of the investigating officer to seize the broken pieces of those B tiles it was not proper for the High Court to draw an inference that the version of the eye-witnesses regarding some of the accused having gone over the roof and made a hole therein was not believable.

Thus the n:asons given by the High Court for nut placing reliance upon the evidence of the eye-witnesses were 'lOt proper and sufficient. We have C already stated earlier that the High Court did not disbelieved the presence of all the accused inside the house of Chander. In fact the High Court has believed the prosecution evidence that they were the persons who had carried away the dead body of Chander from that small room. The two police constables who had arrived at the scene of the offence immediately after the offence was committed were informed about the manner in which the murder D was committed and by whom it was committed. Out of those named assailants 4 were actually caught by the two constables who had chased them. Thus the evidence of the eye-witnesses, who can be regarded as interested witnesses because of their enmity with the accused, stood corroborated by the evidence of the police constables and also the circumstances referred to by us earlier.

E The High Court was, therefore, not right in discarding their evidence regarding participation of the accused in the assault on Chander. From the evidence of the eye-witnesses it stands established that the accused had chased Chander right upto his house, that at that time they were armed with weapons, that they had entered the house of Chander and forcibly entered into the room in which Chander had taken shelter and that they had assaulted him. Thus F they were all members of an unlawful assembly. Their subsequent conduct also indicates that they were members of an unlawful assembly and that whatever they had done was done in prosecution of their common object. As the trial court held that the common object of that untawful assembly was only to beat Chander and not to cause his death and the order of acquittal G under Section 302 read with Section 149 lPC was not challenged before the High Court either by the State or the informant we do not consider it proper to interfere with that finding.

We, therefore, allow Criminal Appeal No.109of1989 filed by Lak.hiya Devi, set aside the order of acquittal passed by the High Court of all those H accused who were convicted by the trial court under Section 326 read with

L. DEVlv. G. YADAV [NANAVATI, J.) 597

Section 149 !PC and restore the order of their conviction passed by the trial A court. We also set aside the acquittal of Budhai under Section 325 read with Section 149 IPC and restore the order of his conviction and sentence passed by the trial court. As the incident had taken place long time back we are of the opinion that ends of justice would be met if the sentence of rigorous imprisonment of 8 years imposed upon the accused (except Budhai) is reduced from 8 years to 5 years. We dismiss Criminal Appeal No.407 of 1987 filed by B the accused against their conviction under Section 20 I !PC. As accused Baudhu (Respondent No.9A in Criminal Appeal No. I 09 of 1989 and Appellant No I 0 in Criminal Appeal No.407 of 1987) died during the pendency of these appeals, they had abated qua him.

RP.

Informant's Appeal allowed and C

Accused Appeal dismissed.