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   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 ½ cm on the inner aspect  of right forearm, 3cm above the wrist. 6. Incised wound 1 cm x 1/5 cm x ½ cm  on  front  aspect  of  right  forearm,  just  above  the  wrist, with clean cut margins and fresh bleeding. 7. 2 abrasions ½ 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 ½ 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 ½ 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 ½ 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 ½ “ x ½ “ 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 ½  “  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.”

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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.