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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1253 of 2008

Dahari & Ors.                              …Appellants

Versus

State of U.P.                                           …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 27.4.2007 in Criminal Appeal No. 3990 of 2005 passed by the  

High  Court  of  Judicature  at  Allahabad,  partly  allowing  the  appeal  

against the judgment and order dated 7.9.2005 passed by the Sessions  

Court, Azamgarh, in Sessions Trial No. 215 of 1991, convicting the  

appellants  and  the  co-accused  under  Sections  302,  149  and  148  of  

Indian  Penal  Code,  1860  (hereinafter  referred  to  as  the  `IPC’)  and  

sentencing them to undergo rigorous imprisonment for life, and also

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one year RI, under Section 148 IPC respectively and further, to pay a  

fine of Rs.10,000/- on each count, and in default of such payment, to  

further undergo a term of four months RI.  

2. The facts and circumstances giving rise to this appeal are as  

follows:

A. On 7.9.1990, Tej Bahadur (deceased) was travelling on a motor  

bike alongwith his friend Ashok at  9.00 a.m. and while doing so, he  

was  followed  by  his  two  brothers,  namely,  Man  Bahadur  and  Raj  

Bahadur who were both on a moped in the village of Kiratpur, district  

Azamgarh. The deceased was riding the motor cycle, while Ashok was  

the pillion rider. When they left the village, they saw the appellants and  

the other accused come out of a sugarcane field, armed with country  

made  pistols  with  which  they  fired  at  the  deceased,  killing  him  

instantaneously.  After this, they immediately ran away.  

B. The incident was witnessed by one Rajesh Singh (PW.3) and  

also  Shashi  Bhushan  (PW.5),  alongwith  some  other  persons.   Man  

Bahadur (PW.1) and Raj Bahadur (PW.2) shifted the dead body of the  

deceased and laid it near a Mango grove, beside the road.  

C. Man Bahadur (PW.1) then lodged an FIR at  10.05 a.m. at a  

police station which was at a distance of about 12 K.M. from the place  

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of  occurrence  of  the  incident.  Mr.  Sarvdev  Singh  (PW.4),  I.O.  

thereafter began investigation. He came to the said spot, recovered the  

dead body, the cartridges and pellets, blood stained earth etc. from the  

aforementioned place of occurrence and prepared the panchnama.  The  

I.O. then also recorded the statement of witnesses and after concluding  

the  said  investigation,  submitted  a  charge  sheet  against  7  accused  

persons.  

D. The learned trial Court, after holding trial, vide judgment and  

order dated 7.9.2005 convicted and sentenced all  the seven accused  

persons, as has been stated hereinabove.   

E. Aggrieved,  all  seven  accused  persons  preferred  Criminal  

Appeal  No. 3990 of 2005 before the High Court,  and by impugned  

judgment and order of the High Court, dated 27.4.2007, the conviction  

and sentence of the appellants was maintained. However, three of the  

convicts namely, Bane, Patiram and Phool Chand were acquitted of all  

charges.  

Hence, this appeal.  

3. Shri  S.R.  Singh,  learned  senior  counsel  appearing  for  the  

appellants  submitted  that  the  High  Court  committed  an  error  by  

convicting the appellants under Sections 302, 149 and 148 IPC, as after  

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the acquittal of three persons among the accused, the total number of  

accused in the said case,  are only four. Therefore, the provisions of  

Section  149  IPC  would  no  longer  be  attracted.  Moreover,  the  

prosecution  withheld  its  most  material  witness,  that  is,  Ashok,  the  

pillion rider of the motorcycle ridden by the deceased, Tej Bahadur and  

no explanation whatsoever was furnished, by the prosecution for his  

non-examination.  Furthermore, it was not possible to inflict upon the  

deceased, the said gun shot injuries in the presence of a  pillion rider on  

the  motor  bike.  Shashi  Bhushan  (PW.5),  a  prime  witness  to  the  

incident, turned hostile and did not support the case of the prosecution.  

Man Bahadur (PW.1) and Raj Bahadur (PW.2) are the real brothers of  

the deceased and therefore, their testimony should not be believed, as  

they  are  no  doubt,  interested  witnesses.  The  evidence  on  record  is  

insufficient to convict the said appellants.  In view of the fact that the  

High Court acquitted three among the accused persons, dis-believing  

the testimony of the witnesses, there is no justification for the Court to  

convict  the said appellants  herein.   Thus,  the appeal  deserves  to  be  

allowed.  

4. On the contrary, Shri Pramod Swarup, learned senior counsel  

appearing for the State vehemently opposed the appeal, contending that  

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the law does not require one to discard the testimony of witnesses who  

are closely related to the deceased/victim. Their evidence must in fact,  

be examined with due care and caution. The appellants must not be  

allowed to take the benefit of any technicalities. In case the High Court  

acquitted  the  three  accused,  it  ought  to  have  convicted  the  said  

appellants with the aid of Section 34 IPC. The appeal therefore, lacks  

merit and is liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.  

6. In the post-mortem report, the following injuries were found on  

the person of the deceased.  

EXTERNAL: -

1. Gun shot wound of entry half cm x half cm x chest   

cavity deep irregular margin situated on left pectoral area   

five cm below left nipple.  

2. Gun shot wound of exit Three cm x two cm x through   

eight cm lateral to thoracic-3, communicating to injury no   

one directing backward horizontally.  

3. Gun shot wound of entry 2.4 cm x cavity deep situated   

over lateral part of back fourteen cm below and in line to   

left shoulder joint with irregular margin.  

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4. Gun shot wound of Exit 4 cm x 3 cm Through on right   

pectoral  area  eight  cm  above  RT  nipple  at  Ten  O'clock   

position communicating to injury number three.  

5. Gun shot wound of entry one cm x one cm x cavity   

deep with irregular margin situated on back at throaic-5.  

6. Gun shot wound of Exit Two cm x one cm x through,   

ten cm lateral to left nipple communicating to injury number   

five.  

7. Gun shot  wound of  entry  one cm x one cm x bony   

deep irregular margin with multiple abrasion on right half   

of face and neck and fracture of scapula and humerus bone   

was found.  

8. Gun shot wound of Entry one cm x one cm x muscle   

deep irregular margin, five cm left lateral to L4 spine.  

9. Gun shot wound of Exit two cm x two cm x muscle   

deep situated on middle of Right Glutal area communicating   

to injury number eight.  

 The doctor opined the cause of death due to shock   

and haemorrhage as a result of ante- mortem injuries.  

7. The medical evidence i.e.  the deposition of Dr. A.K. Pandey  

(PW.6) corroborates the ocular version of events as has been given by  

the eye-witnesses, from which it can be understood that there were a  

total of five gun shot injuries.  It was also stated that the deceased had  

fallen down and was then surrounded by the accused persons, who shot  

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at him repeatedly. Thus, there is no incompatibility in the oral evidence  

and the medical evidence, on record.  

8. In the instant case, the FIR was lodged within a period of one  

hour, at a police station which was at a distance of  12 kms. from the  

place  of occurrence, and this goes to prove that Man Bahadur (PW.1)  

and  Raj  Bahadur  (PW.2)  were  in  fact,  present  at  the  place  of  

occurrence  and  were  in  a  position  to  see  the  accused  from  close  

quarters.  They were also all known to the witnesses. The reason that  

they  happened  to  be  accompanying  the  deceased  was  because  they  

were all going to the Azamgarh Court in relation to a criminal case,  

relating to the murder of one Gharbharan, in which Raghu Prakash, son  

of Raj Bahadur (PW.2), was the accused. There is nothing in the cross-

examination of the eye-witnesses to cast a doubt upon the veracity of  

their testimony or to discredit it in anyway.  

9. It  is  a  settled  legal  proposition  that  the  evidence  of  closely  

related witnesses is required to be carefully scrutinised and appreciated  

before  any  conclusion  is  made  to  rest  upon  it,  regarding  the  

convict/accused in a given case. In case the evidence has a ring of truth  

to it, is cogent, credible and trustworthy, it can, and certainly should, be  

relied upon.  (Vide: Himanshu v. State (NCT of Delhi), (2011) 2 SCC  

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36; Ranjit Singh v. State of M.P., AIR 2011 SC 255; and Onkar &  

Anr. v. State of Uttar Pradesh, (2012) 2 SCC 273).   

10. Man Bahadur  (PW.1)  and Raj  Bahadur  (PW.2)  undoubtedly,  

are the real brothers of the deceased. They, at the time of the incident,  

were following the deceased on their ‘Moped’. They have supported  

the case of the prosecution to the fullest extent, and even though they  

were  thoroughly  questioned  by  the  defence  in  the  course  of  cross-

examination,  they  did  not  elicit  anything  which  could  shake  their  

testimony. Thus, we do not see any reason to discard their testimonies.  

11. So  far  as  the  non-production  of  Ashok,  the  most  material  

witness  to  the  case  is  concerned,  it  is  evident  from the  record  that  

during the cross-examination of Sarvdev Singh, I.O. (PW.4), none of  

the  said  accused  voiced  their  concerns  or  raised  any  apprehension  

regarding the non-examination of Ashok.  He was the only competent  

witness who would have been fully capable of explaining correctly, the  

factual situation. In such a situation, the appellants cannot be permitted  

to advance an argument stating that since the most material witness  

was withheld by the prosecution therefore, adverse inference should be  

drawn against them.  

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12. It has also been canvassed on behalf of the appellants that it  

seems rather improbable, that despite the fact that several injuries were  

caused to the deceased, the pillion rider did not receive a single injury,  

and  therefore,  the  veracity  of  the  entire  case  of  the  prosecution  is  

doubtful. This very issue has been considered at length, by both the  

courts  below.  They  have  come to  the  reasoned  conclusion  that  the  

pillion rider must have run away to save his life and hence, escaped  

injury. The evidence on record is to the extent that the deceased had  

fallen down and that he was then surrounded by the accused and fired  

upon.  Thus,  nothing turns in  favour of  the appellants  based on this  

point raised by them.  

13. In  the  instant  case,  there  was  undisputedly,  prior  ill-will  

existing between the parties, as criminal cases were pending between  

them and Ravi Prakash, son of Raj Bahadur (PW.2)  was still in jail in  

connection with the same.  Hence, there was sufficient motive for the  

appellants to kill the deceased.   

14. Another question worth consideration is whether the appellants  

can be convicted under Section 302 r/w Section 149 IPC in the event  

that the High Court has acquitted three persons among the accused and  

the number of convicts has thus, remained at a number that is less than  

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5,  which  is  in  fact,  necessary  to  form  an  unlawful  assembly  as  

described under Section 141 IPC.  

15. This Court in Amar Singh v. State of Punjab,  AIR 1987  SC  

826,  held as under:  

 “As the appellants were only four in number, there was  no question of their forming an unlawful assembly within   the meaning of Section 141 IPC. It is not the prosecution   case  that  apart  from  the  said  seven  accused  persons,   there were other persons who were involved in the crime.   Therefore, on the acquittal of three accused persons, the  remaining four accused, that is, the appellants,  cannot  be convicted under Section 148 or Section 149 IPC for   any  offence, for,  the  first  condition  to  be  fulfilled  in   designating an assembly an “unlawful assembly” is that   such  assembly  must  be  of  five  or  more  persons,  as   required  under  Section  141  IPC.  In  our  opinion,  the   convictions of the appellants under Sections 148 and 149   IPC cannot be sustained.”  (Emphasis added)

16. Similarly, in  Nagamalleswara Rao (K.)  & Ors.  v.  State of  

Andhra Pradesh, AIR 1991 SC 1075, this Court observed:  

“8. However, the learned Judges overlooked that since   the accused who are convicted were only four in number  and the prosecution has not proved the involvement of   other persons and the courts below have acquitted all the   other accused of all the offences, Section 149 cannot be  invoked for convicting the four appellants herein…. It   is not the prosecution case that apart from the said 15   persons there were other persons who were involved in   the crime. When the 11 other accused were acquitted it   means that their involvement in the offence had not been   proved.  It  would not also be permissible  to assume or   

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conclude that others named or unnamed acted conjointly   with the charged accused in the case unless the charge   itself  specifically  said  so  and  there  was  evidence  to   conclude  that  some  others  also  were  involved  in  the   commission  of  the  offence  conjointly  with  the  charged   accused in furtherance of a common object.

(Emphasis added)

17. Similarly, this Court in Mohammed Ankoos & Ors. v. Public  

Prosecutor,  High  Court  of  Andhra  Pradesh,  Hyderabad, AIR  

2010 SC 566, held as under:    

“35. Section 148 IPC creates liability on persons armed   with deadly weapons and is a distinct offence and there   is  no  requirement  in  law  that  members  of  unlawful   assembly have also to be charged under Section 148 IPC  for legally recording their conviction under Section 302   read with Section 149 IPC. However, where an accused   is  charged  under  Section  148  IPC  and  acquitted,   conviction of such accused under Section 302 read with   Section 149 IPC could not be legally recorded. We find   support from a four-Judge Bench decision of this Court   in  Mahadev Sharma v.  State  of  Bihar, AIR 1966 SC  302…”:  

18. Undoubtedly, this Court has categorically held that in such a  

situation, a conviction  cannot be made with the aid of Section 149  

IPC, particularly when, upon the acquittal of some of the accused,  

the total number of accused stands reduced to less than 5, and it is  

not  the case of  the prosecution that  there  are in fact, some other  

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accused who have not yet been put to trial. However, it is also a  

settled legal proposition that in such a fact-situation, the High Court  

could  most certainly  have convicted the appellants, under Section  

302 r/w Section 34 IPC.  

19. In Nethala Pothuraju & Ors. v. State of Andhra Pradesh,  

AIR 1991 SC 2214, this Court while considering  a similar case, held  

that the non-applicability of Section 149 IPC is no bar for the purpose  

of convicting the accused under Section 302 r/w Section 34 IPC, if the  

evidence discloses the commission of an offence, in furtherance of the  

common intention of such accused.  This is because, both, Sections  

149 and 34 IPC deal with a group of persons who become liable to be  

punished as sharers in the commission of an offence. Thus, in a case  

where the prosecution fails to prove that the number of members of an  

unlawful assembly  are 5 or more, the court can  simply convict the  

guilty persons with the aid of Section 34 IPC, provided that there is  

adequate evidence on  record  to  show  that  such  accused  shared  a  

common intention to commit the crime in question.   

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A similar  view has been re-iterated in  Jivan Lal  & Ors.  v.  

State of M.P., (1997) 9 SCC 119; and Hamlet @ Sasi & Ors. v.  

State of Kerala, AIR 2003 SC 682.  

(See also: Willie (William) Slaney v. State of M.P., AIR 1956 SC  

116; Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326;  

Gurpreet Singh v. State of Punjab, AIR 2006 SC 191;  Sanichar  

Sahni v. State of Bihar, AIR 2010 SC 3786; S. Ganesan v.  Rama  

Raghuraman & Ors., (2011) 2 SCC 83; and Darbara Singh v. State  

of Punjab, JT 2012 (8) SC 530).  

In view  of  the  above,  we  do  not  find  any force in  the  

aforementioned submissions of the appellants  and the same are not  

worth acceptance.

20. It is a broad day light murder at 9.00 a.m. on the main road. The  

eye-witnesses  had been following the deceased  on the  ‘Moped’  as  

they had to attend the court’s proceedings at Azamgarh. The enmity  

between  the  parties  stood  fully  established  as  criminal  cases  were  

pending  between  them.  The  case  of  the  prosecution  stood  fully  

corroborated by the medical evidence and the ocular evidence.  It is  

not probable that the real brothers of the deceased who had been the  

eye-witnesses would implicate the appellants falsely sparing the real  

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assailants, though false implication of some of the persons may not be  

ruled out.  Thus, the High Court was justified in acquitting some of  

the  convicts  as  they  did  not  belong  to  the  family  of  the  

appellants/assailants.   

The appeal  is hence, devoid  of  any  merit  and  is therefore,  

accordingly dismissed.  

…..………………………….J.  (Dr. B.S. CHAUHAN)

         …..….…….….……. ……………………………J.

    (FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi,  October 11, 2012

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