Omkar Singh vs Jaiprakash Narain Singh

Omkar Singh vs Jaiprakash Narain Singh - Supreme Court Case 2022

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.84 OF 2022
Omkar Singh                ..Appellant(S)
Versus
Jaiprakash Narain Singh & Anr.             ..Respondent(S)
J U D G M E N T 
M. R. Shah, J.
1. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order dated 15.03.2019 passed by the High
Court of Judicature at Allahabad in Criminal Appeal No.
304 of 1983 by which the High Court has allowed the said
appeal   preferred   by   respondent   No.1   herein   –   original
accused   No.2   and   has   acquitted   him   for   the   offences
punishable under Section 302 read with Section 34 of the
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IPC,   the   original   informant   –   son   of   the   deceased   has
preferred the present appeal.     
2. As per the case of the prosecution, one Omkar Singh son of
Parasnath Singh lodged an FIR at Police Station Karanda,
District Gazipur stating that due to the enmity going on
between his family members with Udaibhan Singh and his
father Jaiprakash Narain Singh @ Lala (original accused
Nos.1   and   2)   his   father   has   been   killed.   As   per   the
allegation, on 21.04.1982, there was marriage of daughter of
one Kailashu Vishwakarma, who was his neighbour where
he  along  with  his  Tau  ­  Vikrama  Singh   and  his  cousin
brother Indradeo Singh had gone. After taking meal at about
12 in the night, he along with his Tau and cousin had gone
on his pumping set for sleeping where his father Parasnath
was lying from before. He and his cousin Indradeo Singh
had slept on one cot whereas his Tau had slept on another
cot. There was a lantern burning which was hanging on a
stick.   In   between   2:30­3:00   am   in   the   night,   accused
Udaibhan Singh came near his cot and pulled the bed­sheet
on which he and his cousin woke up and his Tau also woke
up. At that moment Jaiprakash Narain Singh @ Lala (A­2)
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exhorted and stated that Paras is lying here come quickly
and shoot him on which Udaibhan Singh (A­1) went near
the cot of his father Parasnath and shot him with country
made pistol on his chest from a point­blank range and when
the   informant   and   the   witnesses   raised   alarm   then
Udaibhan Singh again reloaded his country made pistol and
threatened   them   on   account   of   which   they   kept   quiet.
Thereafter   both   the   accused   ran   away   towards   North.
During the course of investigation, the Investigating Officer
(IO)   recorded   the   statements   of   the   concerned   witnesses
including   eye   witnesses   and   also   collected   the   relevant
evidences. On conclusion of the investigation, the IO filed
the chargesheet against both the accused for the offences
under Sections 302 read with Section 302/34 of the IPC. As
the case was exclusively triable by the learned Court of
Sessions, the case was committed to the sessions court.
Accused pleaded not guilty and therefore both of them came
to be tried by the learned Sessions Court for the offences
punishable   under   Sections   302   and   302/34   of   the   IPC
respectively. 
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3. In order to bring the guilt of the accused the prosecution
examined   PW­1   Omkar   Singh   –   informant   and   PW­2
Inderdeo Singh and PW­4 Vikram Singh (all eye witnesses)
and   PW­3   Dr.   P.C.   Srivastava   who   conducted   the   post
mortem  of  the  deceased  and  PW­5  SI  Kamta  Singh.  On
closure of the evidence on behalf of the prosecution, further
statements of the accused under Section 313 Cr.PC were
recorded.   That   thereafter   on   appreciation   of   the   entire
evidence on record and believing PW­1, PW­2 and PW­4 (eye
witnesses) the learned Trial Court convicted A­1 – Udaibhan
Singh for the offences punishable under Section 302 of the
IPC   and   A­2   –   Jaiprakash   Narain   Singh   @   Lala   for   the
offences punishable under Section 302 read with Section 34
of   the   IPC   and   sentenced   them   to   undergo   life
imprisonment. 
              
4. Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence passed by the learned Trial
Court convicting the accused for the offences punishable
under   Section   302   and   Section   302/34   of   the   IPC
respectively,   the   accused   preferred   an   appeal   before   the
High Court. By the impugned judgment and order, the High
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Court has though believed the eye witnesses – PW­1, PW­2
and PW­4 so far as the A­1 – Udaibhan is concerned and
has confirmed the judgment and order of conviction passed
by the learned Trial Court convicting the A­1 – Udaibhan,
has acquitted A­2 – Jaiprakash Narain Singh @ Lala mainly
on the ground that the three prosecution witnesses  had
given him role of exhortation only and no overt act has been
assigned   to   him   and   therefore   there   might   be   an
exaggeration   of   his   role   and   false   implication   by   the
witnesses in order to see that both the accused – father and
son are put behind the bars because of the property dispute
between the parties. 
5. Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order passed by the High Court acquitting
respondent No.1 herein ­ original accused No.2, the original
informant has preferred the present appeal. 
6. Shri D.P. Singh Yadav, learned counsel appearing on behalf
of the appellant has vehemently submitted that in the facts
and   circumstances   of   the   case,   the   High   Court   has
committed a grave error while acquitting respondent No.1
herein – original accused No.2. 
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6.1 It is vehemently submitted by learned counsel appearing on
behalf of the appellant that as such respondent No.1 was
named in the FIR. It is submitted that all the three eye
witnesses – PW ­1, PW­2 & PW­4 named respondent No.1 –
accused who went to the pumping set where the deceased
was   sleeping   and   that   respondent   No.1   with   a   common
intention to murder the deceased accompanied his son –
accused No.1 and on finding the deceased on a different cot
exhorted his son to kill him and thereafter accused No.1
killed   the   deceased   with   fire   arm.   It   is   submitted   that
therefore   the   learned   Trial   Court   rightly   convicted
respondent No.1 – accused with aid of Section 34 of the IPC.
6.2 It is further submitted that even as per the finding recorded
by the High Court the motive has been established and
proved   by   the   prosecution.   It   is   submitted   that
unfortunately the High Court has acquitted respondent No.1
– accused solely on the ground that overt act assigned to
respondent No.1 – accused No.2 is of exhortation only and
therefore, his involvement appears to be doubtful.
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6.3 It   is   submitted   that   the   said   finding/observation   is   on
surmises and conjectures and just contrary to the evidence
on record. It is submitted that the presence of the accused
has   been   established   and   proved   by   the   prosecution   by
examining PW­1, PW­2 and PW­4, who are the eye witnesses
and   that   their   evidence   has   been   believed   by   the   High
Court. It is submitted that therefore there is no reason to
doubt the presence of the accused – respondent No.1 herein
at the place of incident.
7. Making the above submissions it is prayed to allow the
present appeal. 
8. Shri Garvesh Kabra learned counsel appearing on behalf of
the State has supported the appellant and has submitted
that the High Court has erred in acquitting respondent No.1
– accused No.2. 
9. The present appeal is opposed by Shri R.M. Sinha learned
counsel appearing on behalf of respondent No.1 – accused
No.2. It is submitted by learned counsel appearing on behalf
of respondent No.1 – accused No.2 that cogent reasons have
been given by the High Court while acquitting respondent
No.1 – accused for the offence punishable under Section
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302 of the IPC, and therefore the same is not required to be
interfered with by this Court in exercise of power conferred
under Article 136 of the Constitution of India. 
9.1 It is further submitted that as rightly observed by the High
Court all the three prosecution witnesses had given accused
the role of exhortation only and no further overt act has
been   assigned   to   him   and   even   as   per   the   prosecution
witnesses and even the prosecution the fire arm was used
by accused No.1 and the only allegation against respondent
No.1 herein – original accused No.2 was exhortation. The
High Court has rightly acquitted respondent No.1 – accused
for the offences punishable under Section 302/34 of the
IPC. 
10. Making the above submissions it is prayed to dismiss the
present appeal.      
11. We have heard learned counsel appearing on behalf of the
respective parties at length. 
12. At the outset it is required to be noted that in the present
case right from the very beginning the name of respondent
No.1 was disclosed. Respondent No.1 – accused No.2 was
named in the FIR. There are three eye witnesses to the
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incident   namely   PW­1,   PW­2   and   PW­4   and   all   the
prosecution   witnesses   have   named   respondent   No.1   –
accused No.2 and all of them have stated that both the
accused came at the pumping set where the deceased was
sleeping and at that time on finding the deceased sleeping
on the different cot, respondent No.1 herein – accused No.2
exhorted his son to kill the deceased and his son – accused
No.1   killed   the   deceased   by   fire   arm.   All   the   three
prosecution witnesses are consistent and fully supported
the case of the prosecution. Even the High Court has also
specifically observed and held that all the three prosecution
witnesses   are   reliable   and   trustworthy   and   there   is   no
reason to doubt them. Therefore, once even the High Court
also found all the three prosecution witnesses – PW­1, PW­2
and PW­4 trustworthy and reliable and in fact confirmed the
conviction of accused No.1 for the offence punishable under
Section 302/34 of the IPC, the High Court ought not to have
thereafter   doubted   the   presence   of   accused   No.2   –
respondent   No.1   herein.   Once   the   High   Court   has   even
confirmed the conviction of accused No.1 relying upon all
the   three   eye   witnesses,   the   High   Court   ought   to   have
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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 that
the High Court has acquitted respondent No.1 – accused
No.2 just on the ground that all the three eye witnesses had
given him the role of exhortation and no overt act has been
assigned to him, this may be due to exaggeration of his role
so as to falsely implicate him and see that the father and
son are put behind bars. However, it is required to be noted
that both the accused – father and son went together to the
place/pumping set where the deceased was sleeping. Even
as per the High Court the motive has been established and
proved. The High Court has also observed that due to land
dispute there was enmity between the parties. Therefore,
the High Court ought to have appreciated that respondent
No.1 – accused No.2 was rightly convicted with the aid of
Section 34 of the IPC as he with a common intention to kill
the   deceased   accompanied   his   son   and   on   finding   the
deceased sleeping on the different cot exhorted his son to
kill him and thereafter his son killed the deceased by fire
arm. Therefore, once his presence has been established and
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proved and specific role of exhortation was assigned to him,
the High Court ought to have confirmed the conviction of
respondent No.1 – accused No.2 for the offence punishable
under Section 302/34 of the IPC.           
12.2 It is also required to be noted that as such the High Court
has upheld/confirmed the conviction of accused No.1 for
the offence punishable under Section 302/34 of the IPC.
Therefore,   once   the   conviction   of   accused   No.1   for   the
offence punishable under Section 302/34 of the IPC was
upheld/confirmed,   the   High   Court   ought   to   have
upheld/confirmed the conviction of accused No.2 who was
also   charged   for   the   offence   punishable   under   Section
302/34   of   the   IPC.   Both   the   accused   with   a   common
intention went to the place of deceased at mid­night and as
observed hereinabove the motive has been established and
proved,   the   High   Court   has   committed   a   grave   error   in
acquitting   respondent   No.1   –   accused   No.2.   The   finding
recorded by the High Court is just contrary to the evidence
on   record.   The   impugned   judgment   and   order   is
unsustainable both, on law and on facts. 
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13. In view of the above and for the reasons stated above the
present appeal succeeds. The impugned judgment and order
passed   by   the   High   Court   acquitting   respondent   No.1   –
original accused No.2 – Jaiprakash Narain Singh is hereby
quashed and set aside and the judgment and order passed
by the learned Trial Court convicting him for the offence
punishable under Section 302/34 of IPC and sentencing
him to undergo life imprisonment is hereby restored. Now
respondent No.1 – original accused No.2 to surrender within
a period of four weeks to undergo life imprisonment.            
…………………………………J.
   (M. R. SHAH)
…………………………………J.
  (SANJIV KHANNA)
New Delhi, 
February, 9th 2022
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