Supreme Court of India
RAM ASREYversusSTATE OF UTTAR PRADESH
- Citation
- 1993 INSC 183
- Decided
- 5 May 1993
- Disposal
- Case Partly allowed
- Bench
- A S ANAND
Holding
The appellant did not share the common intention to murder; he is liable only for culpable homicide not amounting to murder under Section 304 Part‑I read with Section 34, and his conviction under Section 302 is set aside.
Summary
The appellant Ram Asrey, along with Munni Lal and the now‑deceased Radhey Shyam, were charged with the murder of Gokaran Prasad on 24 November 1975. The trial court acquitted them for lack of proof, but the Allahabad High Court convicted Asrey and Munni Lal under Section 302 read with Section 34 IPC, sentencing them to life imprisonment. On appeal, the Supreme Court examined the credibility of eye‑witnesses PW‑5 and PW‑6 and held that their testimony, corroborated by the informant PW‑1, was reliable. It further found that Asrey, a school‑student who only pressed the victim down, did not share the common intention to murder; his participation amounted only to a common intention to cause culpable homicide. Consequently, the conviction under Section 302 was set aside and Asrey was convicted under Section 304 Part‑I read with Section 34, with a ten‑year rigorous imprisonment sentence. The appeal was allowed in part.
Issues considered
- Whether the testimony of eye‑witnesses PW‑5 and PW‑6 can be relied upon despite challenges to their credibility.
- Whether the appellant shared the common intention to commit murder under Section 34 IPC.
- Whether the conviction under Section 302 read with Section 34 is appropriate or should be under Section 304 Part‑I with Section 34.
- Whether the High Court erred in reversing the trial court’s acquittal.
Legislation cited
- Code of Criminal Procedure, 1973s. 379
- Indian Penal Code, 1860s. 302, s. 304 Part I, s. 34
Subjects
murderculpable homicide not amounting to murdercommon intentionSection 34 IPCevidence credibilityappeal against acquittalconviction reductionlife imprisonmentrigorous imprisonment
Judgment
A RAMASREY
v.
STATE OF UTTAR PRADESH
MAY 5, 1993
B
[DR. A.S. ANAND AND N.P. SINGH, JJ.]
0
Indian Penal Code : SS. 34, 302 304 Parr-I-Injuries ajj1icred with
Bankas-Accused persons having different imenrions-Appel/ant allribmedwirh
the role of pressing down the victim/deceased before the other two accused
C persons-,Resu/ting in death-Convicted under Section 304 Part-I read with
Section 341.P.C.
The appellant alongwith Radhey Shyam and Munni Lal were charged
with the murder of Gokaran Prasad on 24.11.1975 at about 5 PM. The Trial
Court on consideration of the evidence concluded that the prosecution has
D failed to prove the case beyond reasonable doubts and acquitted the accused
persons.
On appea.1, the High Court appreciating the facts and circumstances of
the case convicted Munni Lal along with the· appellant for an offence under
Section 302 read with 34 I.P.C. and sentenced each of them to undergo
E rigorous imprisonment for life. During the pendency of the appeal the main
accused Radhey Shyam died.
This appeal is against the High Court's Judgment under Section 379 of
the code of Criminal Procedure. Allowing the Appeal in part,
F
HELD: 1. The High Court has rightly pointed out that PW-6 was not
connected with the prosecution party in any manner and there was no reason
for him to depose falsely, claiming to be an eye-witness of the occurrence. As
such, his evidence can be taken tnto consideration. to corroborate the
evidence of the informant PW-I. (587-C)
G
2. The occurrence took place at about 5 P.M. and the first information
report was lodged at 6.45 P.M. within two hours, the Police Station being at
the distance of four miles from the place of Qccurrence. In the first informa-
tion report the same version of the occurrence was disclosed, whic~ has been
state,d in Court. Apart from naming himself, PW-1 also named PW-Sand PW-
H
582
RAM ASREY v. STA TE OF UTfAR PRADESH 583
6 as eye-witness of the occurrence. The Investigating Officer reached the A
place of the occurrence at 9. P.M. the same evening. In such a situation there
does not appear to be any scope for concoction of a false case to implicate the
accused persons leaving out the real culprits. PW-1 being the brother of the
--- deceased, his going to the Court of Tehsildar at Sitapur and returning to
village with the deceased is most natural. His evidence cannot be rejech;d
merely on the ground that he happened to be the brother of the victim. It has B
been repeatedly pointed out ~y this Court that near relations will be the last
persons to Jeave out the real culprits and to implicate those who have not
participated in the crime. Taking all facts and circumstances into consider-
ation, the prosecution has been able to prove the case as disclosed in FIR
against the accused persons. (587-E-G)
c
3. The appellant was a school student and there was no reason on his part
to share the common intention of committing the murder of the victim. By
merely press!ng down the victim before the other two accused persons,
assaulted him, it cannot be held that appellant had shared the common
intenti~n of causing the death of the victim. In the facts and circumstances of D
the case it has to be held. that he shared only the common intention of culpable
homicide not amounting to murder. He can be attributed with the intention
that the injuries, which were being caused by the other two accused persons,
were likely to cause the death of the victim. (588-E-F)
· 4; The conviction of the appellant under Section 302 read with 34 I.P.C. E
as well as his sentence to imprisonment for life is set aside. He is convicted
under Section 304, Part-I, read with Section 34 of the Penal Code sentenced
to undergo rigorous imprisonment for ten years. (588-G)
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal No. 618 of
F
1985.
From the Judgment ·and Order dated 17 .5.1984 of the Allahabad High Court
in Criminal Appeal No. 564of1977.
R.L. Kohli, and C.P. Lal for the Appellant. G
S.P. Pandey and A.S. Pundir for the Respondent.
The Judgment of the Court was delivered by
H
584 SUPREME COURT REPORTS [I 993) 3 S.C.R.
A N.P. SINGH, J. The appellant along with Radhey Shayam and Munni Lal.
was put on trial for an offence under Section 302 read with Section ~4 of the Penal
Code, for having committed the murder of Gokaran Prasad on 24.11.1975 at about
5.00P.M.
B
It is the case of the prosecution that the deceased along with his brother,
Parbhu Dayal PW-1, on 24.11.1975, had gone to the CourtofTehsildarat Sitapur
to attend their case, which had been fixed for hearing. The case was, however,
postponed. In the evening they were returning to village. On Sitapur Lucknow
-
Road. at about 5.00 P.M. the three accused persons, all armed with Bankas,
emerged from the field of Rani Saheba and ran towards to deceased. PW-1 starte.d
shouting for help. The deceased fell down on the brick stack. It is said that the
c appellant Ram Asrey pressed down the deceased, while Radhey Shyam and
Munni Lal gave the blows with Bankas. The occurrence was witnessed by Parbhu
Dayal, PW-1, Jagannath, PW-5, and Narain, PW-6. In respect of the motive forthe
commission of the offence, it is said that two years prior to the occurrence
aforesaid, accused Radhey Sh yam had erected a wall in front of the house of the
D deceased, who resisted and did not allow the wall to be constructed. For that
Radhey Shyai? was prosecuted and because of that he bore a grudge against the
deceased.
The First Information Report was lodged by PW-1 at about 6.45 P.M.; in
which he gave the details of the occurrence and named PW-5 and PW-6 as the eye-
E witnesses of the occurrence. The Investigatii:Jg Officer visited the spot, made the
inquest and sent the body for post mortem, which was held the next day. During
post mortem examination, the following injuries were found :-
"1. Incised wound 7 ems. x. l cm. x bone deep on the right side of
head 6 ems. above the right eye-brow.
F
2. Lacerated wound 4 ems. x. 1.5 ems. x scalp deep in the mid-line
of head 6 ems. above the root of nose.
3. Lacerated wound 4 ems. x 1.5 ems. x bone deep on the left side
G of head 3 ems. above left eye-brow.
4. Lacerated wound 4.5 ems. x I cm. x bone deep on the outer part
oflefl eye-brow extending down on the outer side of the outer angk
of left eye and below its level.
H
RAM ASRE\' v. STA TE OF UTTAR PRADESH 585
5. Incised wound 8 ems. x 3 ems. x scalp deep on the back of head A
on the left side of middle line 5 ems. behind the left ear.
6. Incised wound 11 ems. x 3 ems. x vertebrae bone deep 4 ems.
below the right ear and 2.5 ems. below left angle of left '1ower jaw
at the level of the body of third cervical vertebrae, underneath of
injury oecsophagus. Thyroid cartilage and neck vessels of both the B
sides out.
7. Incised wound 2.5 ems. x .5 cm. x muscle deep over the front of
1st Pharyanx region of right thumb.
c
8. Incised wound 9 ems. x 2 ems. x muscle deep over the palmar
aspect of left hand starting from the web of left thumb and index
finger going inner and upper side towards the wrist."
According to the doctor, who held the post mortem examination, the incised
wound might have been caused by weapon like Banka. He, however, pointed out D
that Banka had a sharp edge on one side and blunt on the other. He stated :-
"Injury No. 2, 3, 4 might be caused by some blunt weapon. Injury
No. 4 might be caused by some blunt side of the banka. As in my
opinion blunt part of the hanka is about I cm. in width, injury No. E
2 and 3 might be caused ~y sharp fall on the heap of Bajri..
Injury No. 2 and 3 might be caused by blunt part ofbanka if its width
was i .4 ems."
In cross-examination he states :- F
"Injuries No. 2, 3 and 4 are likely to be caused by Iathi. There was
a fraction of fractured bone below injury No. 2. The injury No. 2 is
likely to occur if heavy weight weapon is struck with considerable
force. The injury No. 3 might occur by fall on the Bajri. If anyone
fall with face side in addition to injury Nos. 2 and 3 other abrasions G
are likely to occur on the face:·
Again, in cross-examination about injuries Nos. 2, 3 and 4, he has stated that they
are likely to be caused with latlti portion.
H
586 SUPREME COURT REPORTS [1993) 3 S.C.R.
A The Trial Court pn consideration of the evidence came to the conclusion that
prosecution had failed to prove the case beyond rea->onable doubt. On that finding
the accused persons were acquitted.
The State Government filed an appeal against the judgment of acquittal.
During the pendency of the appeal, the main accused Radhey Sh yam died. The
B High Court, however, after referring lo the different facts and circumstances of the
case, recorded a finding that the charge levelled against the two accused persons, ,,:
namely, the appellant and Munni Lal, had been proved beyond reasonable doubt.
On that finding the High Court convicted the appellant along with Munni Lal, for
an offence under Section 302 read with Section 34ofthe Penal Code and sentenced
each of them to undergo rigorous imprisonment for life.
c
This appeal, under Section 379 of the Criminal Procedure Code, has been
filed on behalf of Ram Asrey, the appellant. We are informed that Munni Lal has
not preferred any appeal to this Court.
D On behalf of the appellant it was urged that the Trial Court had rightly
disbelieved the evidence of the three eye-witnesses PW-1. PW-5 and PW-6
because of the inherent improbabilities in their deposition and lack of consistency
and there was no occasion for the High Court while hearing the appeal against
acquittal to reverse the finding recorded about their credibility. It was also pointed
out that so far Jagannath, PW-5, is concerned, he has been disbelieved notonlyhy
E the Trial Court but even by the High Court saying that he has changed his statement
· from stage to stage, to make it consistent with the statement of PW-1. The High
Court has observed in respect of PW-5 :-
·'We may, therefore, exclude his testimony from consideration, not
F so much because he might not have been present at the spot but
because there arc clements in his testimony which make it unsafe to
place reliance on it having been once disbelieved by the Trial Court.
That is the true angle in which the evidence must be considered by
this Court when dealing with an appeal against acquittal."
G It was urged that the same approach should have been adopted in respect of
Narain PW-6, who claimed to have accompanied PW-5, PW-6, has stated that he
had gone that day to the market ofKhairabad to get Salim Mistry for repairing his
Clwkki, but Salim Mistry was not available and when he was returning to village \
he met PW-5 in the market of Khairabad and both of themstarted for their village.
H
RAM ASREY v. STA1E OF UITAR PRADESH 587
He has further stated that at about 5 P.M. he saw the deceased and PW- l on Sitapur- A
Lucknow Road. Then he claimed to have seen the accused persons coming out
from the field· of Rani Saheba. According to him, this appellant held down the
deceased, while the other two accused persons Radhey Shyam and Munni Lal
struck the deceased with Bankas and caused his death. The High Court has
observed that if the testimony l)f PW-6 is examined in the light of surrounding
circumstances, then it is consistent with the version of PW- I and, as such, the B
.. evidence of PW-I receives adequate corroboration. The High Court has rightly
pointed out that PW-Ci was not connected with the prosecution party in any manner
- and there was no reasbn for him to depose falsely, claiming to be an eye-witness
of the occurrence. As such, his evidence can be taken into consideration to
corroborate the evidence of the informant PW- I.
c
On behalfof the appellant, it was said about PW- I that on his own statement,
he lodged the First Information Report, on the basis of a report written by La!Iu
Ram PW-8 at the spot, which he took to Police Station Khairabad. This aspect of
the matter has been dealt with in the judgment under appeal. We are in complete
agreement. That merely because PW-I lodged the First Information Report on D
basis of a report prepared by PW-8, by itself shall not affect the prosecution
version. The matter would have been different. if the accused persons had shown
some oblique motive on the part of PW-8, who is said to have prepared the report.
The occurrence took place at about 5.00 P.M. and the First Information Report was
lodged at 6.45 P.M. within two hours, the police station being at thedistanceoffour
miles from the place of occurrence. In the First Information Report the same E
version of the occurrence was disclosed, which has been stated in Court. Apart
from naming himself, PW- I also named PW-5 and PW-6 as eye-witnesses of the
occurrence. The Investigating Officer reached the place of occurrence at 9.00 P.M.
the same evening. In such a situation there does not appear to be any scope for
concoction of a false case to· implicate the accused persons leaving out the real
culprits. PW- I being the brother of the deceased, his going to the Court of F
Tehsildar al Sitapur and returning to village with the deceased is most natural. His
evidence cannot be rejected merely on the ground that he happened to be the
brother of the victim. It has been repeatedly pointed out by this Court that near
relations will be the last persons to leave out the real culprits and to implicate those
who have not participated in the crime. Taking all facts and circumstances into
G
consideration. we are ofthe view that prosecution has been able to prove the case
as disclosed in the First Information Report against the accused persons and there
is no reason to reject the same.
The next question which has to be examined is as to whether so far the
H
588 SUPREME COURT REPORTS !1993] 3 S.C.R.
A appellant is com:erned who, according to the prosecution case itself, has not given
any Banka blow to U1e victim, but is said to have pressed down the deceased, before
the other two accused persons Radhey Sh yam and Munni Lal had given the blows,
should have been held guilty for an offence under Section 302 read with Section
34of tile Penal Code. It was pointed out that the appellant was a school student and
there was no reason on his part to share the common intention of committing the
IJ murder of the victim. In this connection, reference was made to the injuries found
on the person of the victim during the post mortem examination. It was pointed out
that the injuries were not consistent with the prosecution case that.the oti1er two
accused persons caused those injuries with Bankos. About injuries Nos. 2, 3 and •
c
4 the Doctor, who held the post mortem examination, has clearly stated that they
must have been caused by some blunt weapon. In respect of injury No. 4,.he has
said that it might have been caused by the blunt side oflhe Banko. This itself shows
-
that amongst the two participants in the occurrence. They had different intentions.
One out of the two assailants i.e. Radhey Shyam imd Munni Lal had used the back
side of the Banka. If one of the two assailants had used the back side of the Banko,
then from this conduct it can be reasonably inferred that such assailant had not the
intention to cause the death of the victim.otherwise there was no reason to use the
D
back side of the Banko, instead of sharp side which in normal course could have
caused the death of the victim. However, so far tile present appeal is concerned,
we are not concerned with eilher of the two other accused persons. But this
circumstance can be taken into consideration for judging the role played by the
appellant. According to us, by merely pressing down the victim before the other
E two accused persons assaulted him, it cannot be held that appellant had shared the
common intention of causing the death of the victim. In the facts and circum-
stances of the case, of course, it has to be held that he shared only the common
intention of culpable homicide not amounting to murder. He can be attributed with
the intention that the injuries, which were being caused by the other two accused
persons, were likely to cause the death of the victim.
F
Accordingly, we set aside the conviction of the appellant under Section 302
read with Section 34, as well as his sentence to imprisonmen·t for life. He is
convicted under Section 304, Part I, read with Section 34 of the Penal Code and
sentenced to undergo rigorous imprisonment for ten years. The appeal is accord-
ingly allowed in part to tile. extent indicated above.
G
S.K. Appeal Partly allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "murder"Sign in to search