Surendra & Ors vs State Of U.P

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITOIN (CRL.) NO. 2874 OF 2008

SURENDRA AND OTHERS ....PETITIONERS

VERSUS

STATE OF U.P. ....RESPONDENT

WITH

SPECIAL LEAVE PETITOIN (CRL.) NO. 3354 OF 2008

ANIL KUMAR ....PETITIONER

VERSUS

STATE OF U.P. ....RESPONDENT

J U D G M E N T

R.M. LODHA, J.

Five persons namely; Surendra, Narendra, Yogesh

all s/o Anoop Singh, Amar Pal s/o Jagpal Singh and Anil

Kumar s/o Roopchand Tyagi were tried for the murder

of Ramchandra Singh under Sections 147,148,302 read

with Section 149 of the Indian Penal Code, 1860 (IPC).

2 The incident occurred on May 19, 1980 at 1.30

p.m. According to the prosecution case, Ramchandra

Singh (deceased) who was on his way on that day to

Siana in a buffalo cart with a cement permit and some

money was waylaid by the accused persons; Surendra and

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Narendra were armed with burri and knife respectively

and other three were having lathis with them. There

was a criminal litigation pending between the deceased

Ramchandra Singh and the accused Surendra, Narendra and

Yogesh. These three accused are real brothers.

Accused Anil Kumar happens to be their brother-in-law.

Surendra, at the time of incident, exhorted the other

accused to kill Ramchandra Singh. In the incident,

Ramchandra Singh sustained 21 injuries. He died on the

next day.

3. On conclusion of the trial, the IVth Additional

Sessions Judge, Bulandshahar convicted the accused for

the offence punishable under Section 302 read with

Section 149 IPC. Accused Surendra and Narendra were

convicted under Section 148 IPC additionally while

accused Yogesh, Amar Pal and Anil Kumar were convicted

under Section 147 IPC in addition to the offence under

Section 302 read with Section 149 IPC. All of them

were sentenced to suffer life imprisonment for

commission of offence punishable under Section 302 read

with Section 149 IPC. Accused Surendra and Narendra

were sentenced to rigorous imprisonment for two years

for the offence punishable under Section 148 IPC while

accused Yogesh, Amar Pal and Anil Kumar were sentenced

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to rigorous imprisonment for one year for the offence

punishable under Section 147 IPC.

4. Aggrieved by their conviction and sentence, the

four convicts namely; Surendra, Narendra, Yogesh and

Amar Pal filed one appeal while the fifth convict Anil

Kumar filed a separate appeal before the High Court.

Both the appeals were heard together. The Division

Bench of the Allahabad High Court, vide its judgment

dated November 14, 2007, dismissed both the appeals.

5. Special Leave Petition (Crl.) No. 2874 of 2008

is at the instance of accused Surendra, Narendra and

Yogesh. The other Special Leave Petition (Crl.) No.

3354 of 2008 is at the instance of accused Anil Kumar.

6. This Court on October 3, 2008, in both the

matters, issued notice limited to the nature of

offence. The controversy is confined to this aspect

only.

7. Mr. Nagendra Rai, learned senior counsel for the

petitioners in S.L.P. (Crl.) No. 2874 of 2008 submitted

that the injuries sustained by the Ramchandra Singh

which cumulatively resulted in his death leave no

manner of doubt that the accused persons did not act

in prosecution of the common object to commit the

murder of Ramchandra Singh. Had the intention been to

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commit the murder of Ramchandra Singh, learned senior

counsel submitted, accused Surendra would not have

used burri as lathi and the other accused would not

have caused injuries on the non-vital parts of the

deceased Ramchandra Singh. In support of his

contentions, Mr. Nagendra Rai, learned senior counsel

heavily relied upon the decision of this Court in

Sarwan Singh and others vs. State of Punjab1 and Kusum

Chandrakant Khaushe vs. Hmlingliana and others2.

8. Mr. P.H. Parekh, learned senior counsel

appearing for the petitioner Anil Kumar in S.L.P.

(Crl.) No. 3354 of 2008 adopted the arguments of Mr.

Nagendra Rai, learned senior counsel. He further

submitted that accused Anil Kumar was not the resident

of the village where the incident occurred and there

was no enmity between him and the deceased Ramchandra

Singh. Accused Anil Kumar had come to the village to

take his wife and merely because he was armed with a

lathi, it can not be said that he acted in furtherance

of the common object with other accused to kill the

victim Ramchandra Singh.

9. Mr. Subodh Markandeya, learned senior counsel

for the State of U.P. highlighted the injuries

1 (1978) 4 SCC 111

2 AIR 1993 SC 401

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sustained by the deceased and the consideration of the

matter by the High Court with regard to the nature of

offence.

10. Dr. Inder Sen (PW4) was the doctor who attended

to the deceased Ramchandra Singh immediately after the

incident when he was brought to the Primary Health

Cente, Siana. He has proved the injury report (Ex. Ka-

2). The following injuries were found on the person of

the deceased:

"1. Bruise 7 cm x 4 cm on the top of right shoulder.

2. Multiple bruises over lapping each other in an area 10cm x 11cm on the upper 3rd of right upper arm in front outer aspect.

3. Peeling of skin in its entire thickness 5 cm x 3 cm on the back of right forearm, 6 cm below the elbow.

4. Bruise 5 cm x 2 cm on the inner back aspect of the middle of right forearm.

5. Abrasion 7 cm x 1 = cm on the inner aspect of right forearm, 3cm above the wrist.

6. Incised wound 1 cm x 1/5 cm x = cm on front aspect of right forearm, just above the wrist, with clean cut margins and fresh bleeding.

7. 2 abrasions = cm x 1cm on the back aspect of the middle right of the middle ring finger of right hand.

8. Swelling with tenderness 6cm x 5cm on the inner side of right hand to the top of thumb and above the index finger. Fracture suspected.

9. Swelling on first digit of right little finger.

10 Bruise 6 cm x 3 cm on the outer aspect of left upper arm 6 cm below the shoulder.

11. Multiple deep bruises 12cm x 8cm with the peeling of skin in an area 4 cm x 4 cm on the middle of left upper arm front and outer aspect.

12. Bruise below the nail of left thumb with

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blood oozing from nail band.

13. Bruise 16 cm x 2 cm on the right side of back oblique from axilla to lower angle of shoulder wing.

14. Bruise 8 cm x 3 = cm on outer aspect of back along 10 to 12th rib right side.

15. Bruise 20 cm x 3 cm in horizontal plane on left side of back just above renal angle.

16. Multiple bruise over lapping 12 cm x 10 cm on the outer of right thigh above the knee.

17. Abrasion 2 cm x 1 cm below the left knee.

18. Abrasion 3 cm x 1 cm in front of right leg

11 cm below the knee.

19. Lacerated wound 2 cm x = cm x 1 cm on the front of right leg 11 cm above ankle.

20. Bruise 8 cm x 2 cm on the front of the left thigh, 6 cm below the groin.

21. Bruise 10 cm x 2 cm on the lower and of left thigh above the knee."

Dr. Inder Sen (PW4) further stated that the injury

Nos. 1,2,4,8,9 to 16, 19 & 20 were caused by blunt

object; injury No. 6 was from a sharp weapon and rest

were by friction.

11. The post-mortem of the dead body was conducted

by Dr. P.C. Agarwal (PW5). He had noted as follows:

"A stitched wound 1 = long on the right forearm, incised wound on the medial aspect of right wrist, abraded contusion 1/4" x 1/4" on the dorsal aspect of right middle and ring fingers, contusion 12" x 4" on the outer aspect of right arm and top of shoulder, contusion 2 1/2" x 2" on the right back in the lower 3rd, 3 contusions 1/2" x 1/4", 3/4" x 1/4", 1 = " x = " on the right knee and the 3rd of front of right leg, stitched wound 3/4" on the upper lower third of front of right leg, abraded contusion 1" x 3/4"

on the middle of left leg, abraded contusion 1 = " x 1/2" on the front side of the left arm, abraded contusion 2" x 1 3/4" on the outer aspect of left arm, contusion 6" x 2" on the front and left side of chest, contusion 3" x 1 1/2" on the

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left upper thigh and contusion 3 1/2" x 1 1/2"

on the outer aspect of left middle leg."

12. In Sarwan Singh1, this Court observed that when

the injuries caused were cumulatively sufficient to

cause death, it was necessary for the Court before

holding each of the accused guilty under Section 302

read with Section 149 IPC to find that the common

object of the unlawful assembly was to cause death or

that the members of the unlawful assembly knew it to

be likely that an offence under Section 302 IPC would

be committed in furtherance of the common object. The

Court then examined the above question in light of the

injuries sustained by the deceased. In paragraph 8 of

the report, the injuries have been noticed. The Court

then noticed the circumstances of the case particularly

that an unexpected quarrel took place between the

members of the same family over a dispute as to water

rights. Consequently, the Court held that the common

object of the assembly was not to cause bodily injury

sufficient in the ordinary course of nature to cause

death. The Court held that the common object of the

assembly, in the circumstances, could only be said to

cause injuries which were likely to cause death. In

Sarwan Singh1, accordingly, it was held that the offence

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would be under Section 304 Part-I IPC.

13. Sarwan Singh1 has no application to the facts

of the present case for more than one reason. In the

first place, the motive for the crime in the present

case has been established. There was criminal

litigation pending between the deceased Ramchandra

Singh and the accused Surendra, Narendra and Yogesh.

The other accused Anil Kumar is the bother-in-law of

these three accused. The enmity between the deceased

and the accused party stands proved. Secondly, all the

five accused were armed with deadly weapons. Accused

Surendra and Narendra were armed with burri and knife

respectively and other three accused were armed with

lathis. Accused Surendra, at the time of incident,

exhorted the other accused, "Kill him. He is the bone

of contention". The attack by the accused party on the

victim has been established to be pre-planned and pre-

meditated. Thirdly; the evidence of Dr. P.C. Agarwal

(PW5) who conducted the autopsy on the body of the

deceased would show that the deceased had fractured

ribs - left 9th, 10th and right 10th and both the lungs

of the deceased were lacerated and were found ruptured.

The legal position is well established that inference

of common object has to be drawn from various factors

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such as the weapons with which the members were armed,

their movements, the acts of violence committed by them

and the result. We are satisfied that the prosecution,

from the entirety of the evidence, has been able to

establish that all the members of the unlawful

assembly acted in furtherance of the common object to

cause the death of Ramchandra Singh.

14. In, what we have indicated above, the decision

of this Court in the case of Kusum Chandrakant Khaushe2

also has no application to the facts of the present

case.

15. The case of the accused Anil Kumar is not at all

distinct from the case of the other accused as has been

sought to be canvassed by Mr. P.H. Parekh, learned

senior counsel.

16. The High Court, while dealing with the question

of nature of offence, observed:

"The last point argued by learned counsel for the appellants was that this was not the case under Section 302 IPC but circumstances and nature of injuries show that this was a case under Section 304 Part-I of Indian Penal Code. But we see no force in this contention because there was enmity between the parties and the attack was well planned. This was not a case of sudden provocation. The injury report Ex. Ka-2 shows that deceased was brutally and badly assaulted by the accused persons and cumulative effect of injuries was the cause of death."

10 17. We find no error in consideration of the matter

by the High Court.

18. Special Leave Petitions are, accordingly,

dismissed.

...........................J. (R.M. LODHA)

...........................J. (H.L. GOKHALE) NEW DELHI FEBRUARY 28, 2012.