Penal Code, 1860 – s. 302 – Murder – Prosecution case that appellants caused fatal injuries to victim to which he succumbed – Conviction of the appellants u/ss. 302/34, and sentenced accordingly, on the basis of the circumstantial evidence and the evidence of an eye witness – High Court upheld the order of conviction and sentence, however held that the prosecution witness was not an eyewitness – On appeal, held: All the circumstances taken together do not clinchingly establish the complicity of the appellants-BB, AB and HR – Mere presence at the scene of crime, cannot be the basis to record a finding of guilt against them by applying s. 34 – However, circumstances noted by the courts below establish the involvement of appellant-DB in causing death of deceased, on account of recovery of the weapon from his house, which was used to assault the deceased – Courts below right in relying upon the evidence of the eye witness and the doctor – Conclusion by the High Court that it was a case of causing murder of the deceased, albeit by DB, an offence liable to be punished u/s.
302 simpliciter is upheld – It is not a case to convert the offence of murder to one u/s. 304 (II) – Appellants-BB, AB and HR acquitted of the offence u/ss. 302/34 by giving them benefit of doubt – However, the conviction and sentence of DB u/s.302 upheld. Disposing of the appeal, the Court
HELD: 1.1 There is no evidence regarding common intention of the accused persons or prior meeting of their minds to kill the deceased. The evidence of PW-5, mentions about the mere presence of all the appellants at the spot where deceased was seen lying on the ground. He does not state that all the appellants were wielding lathis at the relevant time. Nor has he spoken about any disclosure made by the appellants regarding the sequence of events resulted in causing fatal injuries to the deceased. Thus, there is no evidence to indicate as to how appellants-BB, AB and HR could be made accountable for the fatal injuries caused to the deceased to which he eventually succumbed. Even if all the nine circumstances are taken as it is, the same do not clinchingly establish the complicity of appellants BB, AB and HR. There is no tittle of evidence to show that they were wielding lathis or had assaulted the deceased by lathi so as to hold them responsible by applying Section 34 IPC. At best, the chain of proved circumstances would point finger only towards appellant DB, from whose house lathi used to assault the deceased, was recovered. Further, the two fatal injuries, in the opinion of the doctor PW-8, could be caused by a blunt weapon like lathi. Accordingly, for want of clinching evidence to indicate the complicity of three appellants, namely, BB, AB and HR, it would be difficult to sustain their conviction by applying Section
34 IPC, which was the charge framed against them. [Para 4][1101E-F]
1.2 As regards, appellant DB, the nine circumstances noted by the trial court and affirmed by the High Court would certainly establish his involvement in the commission of crime, and in particular, on account of recovery of the weapon from his house, which was used to assault JK. He has not offered any explanation except claiming to be innocent. The medical evidence does indicate that the two injuries were fatal and each of them was sufficient to cause death in ordinary course of nature. PW-8 has deposed that a patient with such injuries can survive up to one hour and beyond that possibility of survival is minimal. The trial court as well as the High Court were right in relying upon the evidence of PW-5 and PW-8 to hold that the nine circumstances were duly established. That being a possible view, the same is upheld. The proved circumstances clinchingly point towards the involvement of appellant DB in the commission of the stated offence of murder. Thus, the concurrent conclusion reached by the two courts about the finding of guilt against the appellant DB for causing the death of JK is upheld. [Para 5][1101-G-H; 1102A-C]
1.3 The fact that only two fatal injuries have been noticed during the postmortem of the dead body of deceased would not bring the case within any exception to hold that it was a case of culpable homicide not amounting to murder. The High Court has found that the deceased was not armed and could not have offered any resistance or challenged the chowkidars armed with weapon. Concededly, though the accused perceived JK as a thief and had chased him but that could be no justification to inflict vigorous stick blows which could cause fatal injuries as noticed in the postmortem report. Therefore, the conclusion reached by the High Court that it was a case of causing murder of the deceased, albeit by accused DB, an offence liable to be punished u/s. 302 simpliciter is upheld. [Para 6][1102-D-F]
1.4 The mere presence of the three appellants-BB, AB and HR, at the scene of crime, cannot be the basis to record a finding of guilt against them by applying Section 34 IPC. The proved chain of circumstances is not enough to establish their complicity in causing the two fatal injuries to the deceased to which he eventually succumbed. The prosecution, however, unerringly established the involvement of DB, on the basis of the circumstances discerned from the record as concurrently found by the trial court and the High Court. Further, it is not a case to convert the offence of murder to one under Section 304 (II) IPC. Appellants BB, AB and HR are acquitted of the offence u/s. 302/
34 by giving them benefit of doubt. The judgment and order passed by the trial court and the High Court is set-aside qua them. However, the conviction and sentence of DB u/s. 302 is upheld. [Paras 7, 8][1102-F-H; 1103-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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