OMKAR SINGH versus JAIPRAKASH NARAIN SINGH & ANR. on 9 February 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 15.03.2019 passed by the High Court of Judicature atDAllahabad in Criminal Appeal No. 304 of 1983 by which the High Courthas allowed the said appeal preferred by respondent No.1 herein – originalaccused No.2 and has acquitted him for the offences punishable underSection 302 read with Section 34 of the IPC, the original informant – sonof the deceased has preferred the present appeal.

E2. As per the case of the prosecution, one Omkar Singh son ofParasnath Singh lodged an FIR at Police Station Karanda, DistrictGazipur stating that due to the enmity going on between his familymembers with Udaibhan Singh and his father Jaiprakash Narain Singh@ Lala (original accused Nos.1 and 2) his father has been killed. As perthe allegation, on 21.04.1982, there was marriage of daughter of oneFKailashu Vishwakarma, who was his neighbour where he along with hisTau - Vikrama Singh and his cousin brother Indradeo Singh had gone.After taking meal at about 12 in the night, he along with his Tau andcousin had gone on his pumping set for sleeping where his fatherParasnath was lying from before. He and his cousin Indradeo Singh hadGslept on one cot whereas his Tau had slept on another cot. There wasalantern burning which was hanging on a stick. In between 2:30-3:00 amin the night, accused Udaibhan Singh came near his cot and pulled thebed-sheet on which he and his cousin woke up and his Tau also wokeup. At that moment Jaiprakash Narain Singh @ Lala (A-2) exhortedand stated that Paras is lying here come quickly and shoot him on whichH

Udaibhan Singh (A-1) went near the cot of his father Parasnath andshot him with country made pistol on his chest from a point-blank rangeand when the informant and the witnesses raised alarm then UdaibhanSingh again reloaded his country made pistol and threatened them onaccount of which they kept quiet. Thereafter both the accused ran awaytowards North. During the course of investigation, the InvestigatingOfficer (IO) recorded the statements of the concerned witnesses includingeye witnesses and also collected the relevant evidences. On conclusionof the investigation, the IO filed the chargesheet against both the accusedfor the offences under Sections 302 read with Section 302/34 of theIPC. As the case was exclusively triable by the learned Court of Sessions,the case was committed to the sessions court. Accused pleaded notguilty and therefore both of them came to be tried by the learned SessionsCourt for the offences punishable under Sections 302 and 302/34 of theIPC respectively.

3. In order to bring the guilt of the accused the prosecutionexamined PW-1 Omkar Singh – informant and PW-2 Inderdeo Singhand PW-4 Vikram Singh (all eye witnesses) and PW-3 Dr. P.C. Srivastavawho conducted the post mortem of the deceased and PW-5 SI KamtaSingh. On closure of the evidence on behalf of the prosecution, furtherstatements of the accused under Section 313 Cr.PC were recorded.That thereafter on appreciation of the entire evidence on record andbelieving PW-1, PW-2 and PW-4 (eye witnesses) the learned Trial Courtconvicted A-1 – Udaibhan Singh for the offences punishable under Section302 of the IPC and A-2 – Jaiprakash Narain Singh @ Lala for theoffences punishable under Section 302 read with Section 34 of the IPCand sentenced them to undergo life imprisonment.

4. Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence passed by the learned Trial Court convictingthe accused for the offences punishable under Section 302 and Section302/34 of the IPC respectively, the accused preferred an appeal beforethe High Court. By the impugned judgment and order, the High Courthas though believedthe eye witnesses – PW-1, PW-2 and PW-4 so faras the A-1 – Udaibhan is concerned and has confirmed the judgmentand order of conviction passed by the learned Trial Court convicting theA-1 – Udaibhan, has acquitted A-2 – Jaiprakash Narain Singh @ Lalamainly on the ground that the three prosecution witnesses had given himrole of exhortation only and no overt act has been assigned to him and A

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Atherefore there might be an exaggeration of his role and false implicationby the witnesses in order to see that both the accused – father and sonare put behind the bars because of the property dispute between theparties.

5. Feeling aggrieved and dissatisfied with the impugned judgmentBand order passed by the High Court acquitting respondent No.1 herein -original accused No.2, the original informant has preferred the presentappeal.

6. Shri D.P. Singh Yadav, learned counsel appearing on behalf ofthe appellant has vehemently submitted that in the facts and circumstancesCof the case, the High Court has committed a grave error while acquittingrespondent No.1 herein – original accused No.2.

6.1 It is vehemently submitted by learned counsel appearing onbehalf of the appellant that as such respondent No.1 was named in theFIR. It is submitted that all the three eye witnesses – PW -1, PW-2 &DPW-4 named respondent No.1 – accused who went to the pumping setwhere the deceased was sleeping and that respondent No.1 with acommon intention to murder the deceased accompanied his son – accusedNo.1 and on finding the deceased on a different cot exhorted his son tokill him and thereafter accused No.1 killed the deceased with fire arm.It is submitted that therefore the learned Trial Court rightly convictedErespondent No.1 – accused with aid of Section 34 of the IPC.

6.2 It is further submitted that even as per the finding recorded bythe High Court the motive has been established and proved by theprosecution. It is submitted that unfortunately the High Court has acquittedrespondent No.1 – accused solely on the ground that overt act assignedFto 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 surmisesand conjectures and just contrary to the evidence on record. It is submittedthat the presence of the accused has been established and proved by theGprosecution by examining PW-1, PW-2 and PW-4, who are the eyewitnesses and that their evidence has been believed by the High Court.It is submitted that therefore there is no reason to doubt the presence ofthe accused – respondent No.1 herein at the place of incident.

7. Making the above submissions it is prayed to allow the presentHappeal.

8. Shri Garvesh Kabra learned counsel appearing on behalf of theState has supported the appellant and has submitted that the High Courthas erred in acquitting respondent No.1 – accused No.2.

9. The present appeal is opposed by Shri R.M. Sinha learnedcounsel appearing on behalf of respondent No.1 – accused No.2. It issubmitted by learned counsel appearing on behalf of respondent No.1 –accused No.2 that cogent reasons have been given by the High Courtwhile acquitting respondent No.1 – accused for the offence punishableunder Section 302 of the IPC, and therefore the same is not required tobe interfered with by this Court in exercise of power conferred underArticle 136 of the Constitution of India.

9.1 It is further submitted that as rightly observed by the HighCourt all the three prosecution witnesses had given accused the role ofexhortation only and no further overt act has been assigned to him andeven as per the prosecution witnesses and even the prosecution the firearm was used by accused No.1 and the only allegation against respondentNo.1 herein – original accused No.2 was exhortation. The High Courthas rightly acquitted respondent No.1 – accused for the offencespunishable under Section 302/34 of the IPC.

10. Making the above submissions it is prayed to dismiss the presentappeal.

11. We have heard learned counsel appearing on behalf of therespective parties at length.

12. At the outset it is required to be noted that in the present caseright from the very beginning the name of respondent No.1 was disclosed.Respondent No.1 – accused No.2 was named in the FIR. There arethree eye witnesses to the incident namely PW-1, PW-2 and PW-4 andall the prosecution witnesses have named respondent No.1 – accusedNo.2 and all of them have stated that both the accused came at thepumping set where the deceased was sleeping and at that time on findingthe deceased sleeping on the different cot, respondent No.1 herein –accused No.2 exhorted his son to kill the deceased and his son – accusedNo.1 killed the deceased by fire arm. All the three prosecution witnessesare consistent and fully supported the case of the prosecution. Even theHigh Court has also specifically observed and held that all the threeprosecution witnesses are reliable and trustworthy and there is no reasonto doubt them. Therefore, once even the High Court also found all the AB

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Athree prosecution witnesses – PW-1, PW-2 and PW-4 trustworthy andreliable and in fact confirmed the conviction of accused No.1 for theoffence punishable under Section 302/34 of the IPC, the High Courtought not to have thereafter doubted the presence of accused No.2 –respondent No.1 herein. Once the High Court has even confirmed theconviction of accused No.1 relying upon all the three eye witnesses, theBHigh 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 thatthe High Court has acquitted respondent No.1 – accused No.2 just onthe ground that all the three eye witnesses had given him the role ofCexhortation and no overt act has been assigned to him, this may be dueto exaggeration of his role so as to falsely implicate him and see that thefather and son are put behind bars. However, it is required to be notedthat both the accused – father and son went together to the place/pumpingset where the deceased was sleeping. Even as per the High Court theDmotive has been established and proved. The High Court has also observedthat due to land dispute there was enmity between the parties. Therefore,the High Court ought to have appreciated that respondent No.1 – accusedNo.2 was rightly convicted with the aid of Section 34 of the IPC as hewith a common intention to kill the deceased accompanied his son andon finding the deceased sleeping on the different cot exhorted his son toEkill him and thereafter his son killed the deceased by fire arm. Therefore,once his presence has been established and proved and specific role ofexhortation was assigned to him, the High Court ought to have confirmedthe conviction of respondent No.1 – accused No.2 for the offencepunishable under Section 302/34 of the IPC.F

12.2 It is also required to be noted that as such the High Court hasupheld/confirmed the conviction of accused No.1 for the offencepunishable under Section 302/34 of the IPC.Therefore,once the convictionof accused No.1 for the offence punishable under Section 302/34 of theIPC was upheld/confirmed, the High Court ought to have upheld/Gconfirmed the conviction of accused No.2 who was also charged for theoffence punishable under Section 302/34 of the IPC. Both the accusedwith a common intention went to the place of deceased at mid-night andas observed hereinabove the motive has been established and proved,the High Court has committed a grave error in acquitting respondentNo.1 – accused No.2. The finding recorded by the High Court is justH

contrary to the evidence on record. The impugned judgment and order isunsustainable both, on law and on facts.

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13. In view of the above and for the reasons stated above thepresent appeal succeeds. The impugned judgment and order passed bythe High Court acquitting respondent No.1 – original accused No.2 –Jaiprakash Narain Singh is hereby quashed and set aside and the judgmentBand order passed by the learned Trial Court convicting him for the offencepunishable under Section 302/34 of IPC and sentencing him to undergolife imprisonment is hereby restored. Now respondent No.1 – originalaccused No.2 to surrender within a period of four weeks to undergo lifeimprisonment.

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Bibhuti Bhushan Bose

Appeal allowed.

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