Deciding Authority: Supreme Court of India
Name of the Judges: Justice Harjit Singh Bedi, Justice Chandramauli Kr. Prasad
Date of Judgment: 6 October 2010
Facts of the Case: The prosecution commenced on the basis of a report given by informant Ramjee Singh (P.W. 4) before the Sub Inspector of Police on 9th August, 1985 at 9:15p.m. in Vikram Government Hospital, Patna. According to the First Information Report, four years prior to the occurrence, the informant had purchased a house from one Ramanand Mistri which was adjacent to the house of accused Bali Ram Singh. The prosecution alleged that the said accused Bali Ram Singh had demolished the wall of the purchased house and on 9th August, 1995, he had gone to the Police Station to lodge the report. While the informant was returning from the police station along with his brother Ashok Singh (deceased) and reached in front of the house of said Bali Ram Singh all the accused including the appellant herein surrounded the deceased and the present appellant was alleged to have exhorted to shoot them dead whereupon accused Bali Ram Singh fired from his pistol causing injury to the deceased Ashok Singh. Hearing the sound of shots, according to the prosecution, witnesses Kedar Singh (P.W. 1) and Lal Bahadur Singh (P.W. 3) came there and seeing them all the accused persons fled away from the place of occurrence. The injured Ashok Singh was brought on a cot to Vikram Government Hospital and was declared dead. The appellant was charged for commission of the offence under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The appellant denied to have committed the offence, and claimed to be tried. Prosecution in order to bring home the charge altogether examined six witnesses out of which P.W. 1 – Kedar Singh, P.W. 2- Shivendra Singh and P.W. 3 – Lal Bahadur Singh claimed to be the eye witnesses to the occurrence. P.W. 5 Dr. Pramod Kumar Jha held the post mortem examination on the dead body of the deceased. In the examination under section 313 of the Code of Criminal Procedure, the appellant besides pleading false implication has also pleaded alibi asserting that at the time of occurrence he was on duty as a night guard in the Commercial Taxes Office at Barh and in order to prove the same examined four witnesses. The trial court came to the conclusion that the prosecution had been able to prove its case beyond all reasonable doubt and, accordingly, held the appellant guilty under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. Besides, the appellant, two other persons namely, Bali Ram Singh and Ram Anuj Singh were also held guilty under Section 302/34 of the Indian Penal Code. Aggrieved by their conviction and sentence all the aforesaid accused persons preferred separate appeals. All the appeals were taken up for consideration by the High Court together and by common judgment dated 26th August, 2003, the appeal preferred by Ram Anuj Singh was allowed and he was acquitted of all the charges. However, the appeal preferred by the appellant herein was partly allowed and while maintaining his conviction and sentence under Section 302/34 of the Indian Penal Code, his conviction under Section 27 of the Arms Act was set aside. It was against the conviction and sentence under Section 302/34 of the Indian Penal Code that the appellant had preferred this appeal by leave of the Court.
Judgment: Mr. P.S. Mishra, the learned Senior Counsel for the appellant contended that the role attributed to the appellant is that of an order giver which was not fit to be believed. He pointed out that according to the prosecution this appellant was armed with a country made weapon but had not used the same. He submitted that it was unbelievable that an accused armed with a weapon would have refrained from using the said weapon. Accordingly, he submitted that the appellant cannot be held guilty of offence under Section 302 of the Indian Penal Code with the aid of Section 34 thereof. In support of his submission, he placed reliance on a judgment of this Court in the case of Parshuram Singh v. State of Bihar (2002) 8 SCC 16 wherein it was observed, “The role attributed to A-4 Parshruam Singh is that he had a pistol with him and he threatened the other persons who reached the scene. Here also, if A-4 Parshruam Singh had the common intention to murder the deceased, it is highly improbable that he would have refrained from using an inherently lethal weapon like the pistol which was in his possession. He would have threatened others from coming into the fray perhaps as a measure adopted by him to save them from receiving injuries.”
Mr. Chandan Kumar, learned counsel for the State, however, submitted that the appellant played a vital role and the High Court rightly upheld his conviction. Having appreciated the rival submissions, the Court found substance in the submission of Mr. Mishra. The only role attributed to the appellant was that he exhorted the accused persons to kill the deceased. It had come in the evidence of the eye witnesses that this appellant was armed with country made weapon but its use by him had been disbelieved and his conviction under Section 27 of the Arms Act had been set side. According to the prosecution, the appellant was armed with a country made weapon. Prosecution had been unable to prove that the said appellant had used the same. It was highly improbable that the appellant would have refrained himself from using the lethal weapon which was in his possession. The Court opined that the prosecution had not been able to prove beyond all reasonable doubt the role attributed to the appellant and he was entitled to be given the benefit thereof.
Decision: The Court allowed the appeal, set aside the judgment and order of conviction and sentence of the appellant. He was on bail. His bail-bonds stood discharged.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi