OMKAR SINGHversusJAIPRAKASH NARAIN SINGH & ANR.

550                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 550              [2022] 1 S.C.R.


A                              OMKAR SINGH
                                       v.
                  JAIPRAKASH NARAIN SINGH & ANR.
                       (Criminal Appeal No. 84 of 2022)
B
                             FEBRUARY 9, 2022
                [M. R. SHAH AND SANJIV KHANNA, JJ.]
             Penal Code, 1860 – s.302 r/w s.34 – Murder – Common
      intention –Two accused, A-2 (respondent no.1) and his son (A-1) –
C     Three PWs – Sessions Court convicted A-1 u/s.302 and A-2 u/s. 302
      r/w 34 – High Court affirmed conviction of A-1, but, acquitted A-2
      – On appeal by first informant/ son of deceased, held: High Court
      erred in acquitting A-2 – All three PWs were consistent and fully
      supported the case of prosecution – Even as per the High Court the
D     motive was established and proved – High Court also observed
      that due to land dispute there was enmity between the parties –
      Therefore, High Court ought to have appreciated that A-2 was
      rightly convicted with the aid of s.34 as he with a common intention
      to kill the deceased accompanied his son and on finding the
      deceased sleeping on the different cot exhorted his son to kill him
E     and thereafter his son (A-2) killed the deceased by fire arm – Once
      the presence of A-2 was established and proved and specific role of
      exhortation was assigned to him, the High Court ought to have
      confirmed the conviction of A-2 u/s.302/34 – Judgment of trial court
      convicting A-2 u/s.302/34 and sentencing him to undergo life
F     imprisonment, accordingly, restored.
            Allowing the appeal, the Court
            HELD:1. Respondent No.1 – accused No.2 was named in
      the FIR. There are three eye witnesses to the incident namely
      PW-1, PW-2 and PW-4 and all the prosecution witnesses have
G     named respondent No.1 – accused No.2 and all of them have
      stated that both the accused came at the pumping set where the
      deceased was sleeping and at that time on finding the deceased
      sleeping on the different cot, respondent No.1– accused No.2
      exhorted his son to kill the deceased and his son – accused No.1
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                                      550
     OMKAR SINGH v. JAIPRAKASH NARAIN SINGH & ANR.                    551


killed the deceased by fire arm. All the three prosecution            A
witnesses are consistent and fully supported the case of the
prosecution. Once the High Court has even confirmed the
conviction of accused No.1 relying upon all the three eye
witnesses, the High Court ought to have confirmed the conviction
of respondent No.1 – accused No.2 also relying upon the three
                                                                      B
eye witnesses. [Para 12][555-F-H; 556-A-B]
       2. It appears that the High Court has acquitted respondent
No.1 – accused No.2 just on the ground that all the three eye
witnesses had given him the role of exhortation and no overt act
has been assigned to him, this may be due to exaggeration of his
                                                                      C
role so as to falsely implicate him and see that the father and son
are put behind bars. However, it is required to be noted that
both the accused – father and son went together to the place/
pumping set where the deceased was sleeping. Even as per the
High Court the motive has been established and proved. The
High Court has also observed that due to land dispute there was       D
enmity between the parties. Therefore, the High Court ought to
have appreciated that respondent No.1 – accused No.2 was rightly
convicted with the aid of Section 34 of the IPC as he with a common
intention to kill the deceased accompanied his son and on finding
the deceased sleeping on the different cot exhorted his son to
                                                                      E
kill him and thereafter his son killed the deceased by fire arm.
Therefore, once his presence has been established and proved
and specific role of exhortation was assigned to him, the High
Court ought to have confirmed the conviction of respondent
No.1 – accused No.2 for the offence punishable under Section
302/34 of the IPC. [Para 12.1][556-C-F]                               F
     3. The High Court committed a grave error in acquitting
respondent No.1 – accused No.2. The finding recorded by the
High Court is just contrary to the evidence on record. The
judgment and order passed by the Trial Court convicting
respondent No.1 – accused No.2 for the offence punishable under       G
Section 302/34 of IPC and sentencing him to undergo life
imprisonment is hereby restored. [Paras 12.2, 13][556-H;
557-A, B]


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552            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      84 of 2022.
            From the Judgment and Order dated 15.03.2019 of the High Court
      of Judicature at Allahabad, U.P. in Criminal Appeal No.304 of 1983
      along with Correction Order dated 02.05.2019 in Crl. Misc. (Correction)
B     Application No.03 of 2019.
            D. P. Singh Yadav, Rajeev Kumar Deora, Ms. Smriti Kumari,
      Shiv Sagar Tiwari, Advs. for the Appellant.
           Ms. Manju Jetley, R. M. Sinha, Garvesh Kabra, Advs. for the
      Respondents.
C
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order dated 15.03.2019 passed by the High Court of Judicature at
D     Allahabad in Criminal Appeal No. 304 of 1983 by which the High Court
      has allowed the said appeal preferred by respondent No.1 herein – original
      accused No.2 and has acquitted him for the offences punishable under
      Section 302 read with Section 34 of the IPC, the original informant – son
      of the deceased has preferred the present appeal.
E            2. As per the case of the prosecution, one Omkar Singh son of
      Parasnath Singh lodged an FIR at Police Station Karanda, District
      Gazipur stating that due to the enmity going on between his family
      members with Udaibhan Singh and his father Jaiprakash Narain Singh
      @ Lala (original accused Nos.1 and 2) his father has been killed. As per
      the allegation, on 21.04.1982, there was marriage of daughter of one
F
      Kailashu Vishwakarma, who was his neighbour where he along with his
      Tau - Vikrama Singh and his cousin brother Indradeo Singh had gone.
      After taking meal at about 12 in the night, he along with his Tau and
      cousin had gone on his pumping set for sleeping where his father
      Parasnath was lying from before. He and his cousin Indradeo Singh had
G     slept on one cot whereas his Tau had slept on another cot. There wasa
      lantern burning which was hanging on a stick. In between 2:30-3:00 am
      in the night, accused Udaibhan Singh came near his cot and pulled the
      bed-sheet on which he and his cousin woke up and his Tau also woke
      up. At that moment Jaiprakash Narain Singh @ Lala (A-2) exhorted
      and stated that Paras is lying here come quickly and shoot him on which
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      OMKAR SINGH v. JAIPRAKASH NARAIN SINGH & ANR.                           553
                       [M. R. SHAH, J.]

Udaibhan Singh (A-1) went near the cot of his father Parasnath and            A
shot him with country made pistol on his chest from a point-blank range
and when the informant and the witnesses raised alarm then Udaibhan
Singh again reloaded his country made pistol and threatened them on
account of which they kept quiet. Thereafter both the accused ran away
towards North. During the course of investigation, the Investigating
                                                                              B
Officer (IO) recorded the statements of the concerned witnesses including
eye witnesses and also collected the relevant evidences. On conclusion
of the investigation, the IO filed the chargesheet against both the accused
for the offences under Sections 302 read with Section 302/34 of the
IPC. As the case was exclusively triable by the learned Court of Sessions,
the case was committed to the sessions court. Accused pleaded not             C
guilty and therefore both of them came to be tried by the learned Sessions
Court for the offences punishable under Sections 302 and 302/34 of the
IPC respectively.
      3. In order to bring the guilt of the accused the prosecution
examined PW-1 Omkar Singh – informant and PW-2 Inderdeo Singh                 D
and PW-4 Vikram Singh (all eye witnesses) and PW-3 Dr. P.C. Srivastava
who conducted the post mortem of the deceased and PW-5 SI Kamta
Singh. On closure of the evidence on behalf of the prosecution, further
statements of the accused under Section 313 Cr.PC were recorded.
That thereafter on appreciation of the entire evidence on record and
believing PW-1, PW-2 and PW-4 (eye witnesses) the learned Trial Court         E
convicted A-1 – Udaibhan Singh for the offences punishable under Section
302 of the IPC and A-2 – Jaiprakash Narain Singh @ Lala for the
offences punishable under Section 302 read with Section 34 of the IPC
and sentenced them to undergo life imprisonment.
       4. Feeling aggrieved and dissatisfied with the judgment and order      F
of conviction and sentence passed by the learned Trial Court convicting
the accused for the offences punishable under Section 302 and Section
302/34 of the IPC respectively, the accused preferred an appeal before
the High Court. By the impugned judgment and order, the High Court
has though believedthe eye witnesses – PW-1, PW-2 and PW-4 so far             G
as the A-1 – Udaibhan is concerned and has confirmed the judgment
and order of conviction passed by the learned Trial Court convicting the
A-1 – Udaibhan, has acquitted A-2 – Jaiprakash Narain Singh @ Lala
mainly on the ground that the three prosecution witnesses had given him
role of exhortation only and no overt act has been assigned to him and
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554             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     therefore there might be an exaggeration of his role and false implication
      by the witnesses in order to see that both the accused – father and son
      are put behind the bars because of the property dispute between the
      parties.
            5. Feeling aggrieved and dissatisfied with the impugned judgment
B     and order passed by the High Court acquitting respondent No.1 herein -
      original accused No.2, the original informant has preferred the present
      appeal.
             6. Shri D.P. Singh Yadav, learned counsel appearing on behalf of
      the appellant has vehemently submitted that in the facts and circumstances
C     of the case, the High Court has committed a grave error while acquitting
      respondent No.1 herein – original accused No.2.
              6.1 It is vehemently submitted by learned counsel appearing on
      behalf of the appellant that as such respondent No.1 was named in the
      FIR. It is submitted that all the three eye witnesses – PW -1, PW-2 &
D     PW-4 named respondent No.1 – accused who went to the pumping set
      where the deceased was sleeping and that respondent No.1 with a
      common intention to murder the deceased accompanied his son – accused
      No.1 and on finding the deceased on a different cot exhorted his son to
      kill him and thereafter accused No.1 killed the deceased with fire arm.
      It is submitted that therefore the learned Trial Court rightly convicted
E     respondent No.1 – accused with aid of Section 34 of the IPC.
             6.2 It is further submitted that even as per the finding recorded by
      the High Court the motive has been established and proved by the
      prosecution. It is submitted that unfortunately the High Court has acquitted
      respondent No.1 – accused solely on the ground that overt act assigned
F     to respondent No.1 – accused No.2 is of exhortation only and therefore,
      his involvement appears to be doubtful.
              6.3 It is submitted that the said finding/observation is on surmises
      and conjectures and just contrary to the evidence on record. It is submitted
      that the presence of the accused has been established and proved by the
G     prosecution by examining PW-1, PW-2 and PW-4, who are the eye
      witnesses and that their evidence has been believed by the High Court.
      It is submitted that therefore there is no reason to doubt the presence of
      the accused – respondent No.1 herein at the place of incident.
            7. Making the above submissions it is prayed to allow the present
H     appeal.
      OMKAR SINGH v. JAIPRAKASH NARAIN SINGH & ANR.                             555
                       [M. R. SHAH, J.]

       8. Shri Garvesh Kabra learned counsel appearing on behalf of the         A
State has supported the appellant and has submitted that the High Court
has erred in acquitting respondent No.1 – accused No.2.
       9. The present appeal is opposed by Shri R.M. Sinha learned
counsel appearing on behalf of respondent No.1 – accused No.2. It is
submitted by learned counsel appearing on behalf of respondent No.1 –           B
accused No.2 that cogent reasons have been given by the High Court
while acquitting respondent No.1 – accused for the offence punishable
under Section 302 of the IPC, and therefore the same is not required to
be interfered with by this Court in exercise of power conferred under
Article 136 of the Constitution of India.
                                                                                C
      9.1 It is further submitted that as rightly observed by the High
Court all the three prosecution witnesses had given accused the role of
exhortation only and no further overt act has been assigned to him and
even as per the prosecution witnesses and even the prosecution the fire
arm was used by accused No.1 and the only allegation against respondent
No.1 herein – original accused No.2 was exhortation. The High Court             D
has rightly acquitted respondent No.1 – accused for the offences
punishable under Section 302/34 of the IPC.
      10. Making the above submissions it is prayed to dismiss the present
appeal.
                                                                                E
      11. We have heard learned counsel appearing on behalf of the
respective parties at length.
        12. At the outset it is required to be noted that in the present case
right from the very beginning the name of respondent No.1 was disclosed.
Respondent No.1 – accused No.2 was named in the FIR. There are                  F
three eye witnesses to the incident namely PW-1, PW-2 and PW-4 and
all the prosecution witnesses have named respondent No.1 – accused
No.2 and all of them have stated that both the accused came at the
pumping set where the deceased was sleeping and at that time on finding
the deceased sleeping on the different cot, respondent No.1 herein –
accused No.2 exhorted his son to kill the deceased and his son – accused        G
No.1 killed the deceased by fire arm. All the three prosecution witnesses
are consistent and fully supported the case of the prosecution. Even the
High Court has also specifically observed and held that all the three
prosecution witnesses are reliable and trustworthy and there is no reason
to doubt them. Therefore, once even the High Court also found all the
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556            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A     three prosecution witnesses – PW-1, PW-2 and PW-4 trustworthy and
      reliable and in fact confirmed the conviction of accused No.1 for the
      offence punishable under Section 302/34 of the IPC, the High Court
      ought not to have thereafter doubted the presence of accused No.2 –
      respondent No.1 herein. Once the High Court has even confirmed the
      conviction of accused No.1 relying upon all the three eye witnesses, the
B
      High Court ought to have confirmed the conviction of respondent No.1
      – accused No.2 also relying upon the three eye witnesses.
             12.1 From the reasoning given by the High Court it appears that
      the High Court has acquitted respondent No.1 – accused No.2 just on
      the ground that all the three eye witnesses had given him the role of
C     exhortation and no overt act has been assigned to him, this may be due
      to exaggeration of his role so as to falsely implicate him and see that the
      father and son are put behind bars. However, it is required to be noted
      that both the accused – father and son went together to the place/pumping
      set where the deceased was sleeping. Even as per the High Court the
D     motive has been established and proved. The High Court has also observed
      that due to land dispute there was enmity between the parties. Therefore,
      the High Court ought to have appreciated that respondent No.1 – accused
      No.2 was rightly convicted with the aid of Section 34 of the IPC as he
      with a common intention to kill the deceased accompanied his son and
      on finding the deceased sleeping on the different cot exhorted his son to
E     kill him and thereafter his son killed the deceased by fire arm. Therefore,
      once his presence has been established and proved and specific role of
      exhortation was assigned to him, the High Court ought to have confirmed
      the conviction of respondent No.1 – accused No.2 for the offence
      punishable under Section 302/34 of the IPC.
F            12.2 It is also required to be noted that as such the High Court has
      upheld/confirmed the conviction of accused No.1 for the offence
      punishable under Section 302/34 of the IPC.Therefore,once the conviction
      of accused No.1 for the offence punishable under Section 302/34 of the
      IPC was upheld/confirmed, the High Court ought to have upheld/
G     confirmed the conviction of accused No.2 who was also charged for the
      offence punishable under Section 302/34 of the IPC. Both the accused
      with a common intention went to the place of deceased at mid-night and
      as observed hereinabove the motive has been established and proved,
      the High Court has committed a grave error in acquitting respondent
      No.1 – accused No.2. The finding recorded by the High Court is just
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      OMKAR SINGH v. JAIPRAKASH NARAIN SINGH & ANR.                            557
                       [M. R. SHAH, J.]

contrary to the evidence on record. The impugned judgment and order is         A
unsustainable both, on law and on facts.
       13. In view of the above and for the reasons stated above the
present appeal succeeds. The impugned judgment and order passed by
the High Court acquitting respondent No.1 – original accused No.2 –
Jaiprakash Narain Singh is hereby quashed and set aside and the judgment       B
and order passed by the learned Trial Court convicting him for the offence
punishable under Section 302/34 of IPC and sentencing him to undergo
life imprisonment is hereby restored. Now respondent No.1 – original
accused No.2 to surrender within a period of four weeks to undergo life
imprisonment.
                                                                               C

Bibhuti Bhushan Bose                                         Appeal allowed.




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