Case Note & Summary
The matter arose from a violent incident on 7.7.1982 in village Baragudha, Haryana, where several Harijan residents were attacked by a group of accused persons. Twelve accused were tried for the incident. The prosecution case was that the accused, belonging to a rival political faction, attacked the complainant party near a dharamshala when they were going to lodge a report about earlier firing in the air. The accused were armed with guns, pistols, gandasas and lathis, and caused injuries to five persons, one of whom, Jagga Singh, later died. The trial court convicted the accused under various sections including Section 302 read with Section 149 IPC for some accused, and other sections for other accused. The High Court partly allowed the appeals and converted the conviction from Section 302/149 to Section 304 Part-II/149 IPC, awarding four years rigorous imprisonment and fine of Rs. 5,000 each. The accused then appealed to the Supreme Court. The appellants contended that the dying declaration Ex.PSS was not reliable and had been rightly rejected by the High Court; that the injured witness Munshi Singh PW11 had turned hostile and did not support the prosecution; that Chhota Singh PW12 was not present at the place of incident; and that the FIR was lodged late. The Supreme Court examined the evidence and held that even if the dying declaration was ignored, the testimony of Chhota Singh PW12 was credible and had withstood cross-examination. The Court noted that Munshi Singh PW11, though declared hostile, had stated in his evidence that a compromise was effected with four named accused, which implied that those persons had taken part in the incident. The mere fact that PW12 was not injured did not make his presence doubtful. The Court found concurrent findings of fact by two courts below and saw no reason to interfere. It upheld the conviction under Section 304 Part-II read with Section 149 IPC. However, considering the lapse of time, the fact that the appellants had been on bail since 28.1.1985 and had already undergone imprisonment for over two years, the Court reduced the sentence from four years rigorous imprisonment to the period already undergone, while maintaining the fine of Rs. 5,000 each. The appeals of deceased appellants were held to have abated. The appeals were dismissed subject to the modification of sentence.
Headnote
A) Criminal Law - Common Object - Sections 149, 302, 304 Part-II Indian Penal Code, 1860 - High Court held that non-use of firearms despite availability indicated absence of common object to murder, and converted conviction from Section 302/149 to Section 304 Part-II/149 - Supreme Court upheld this finding, holding that the common object of the unlawful assembly did not extend to committing murder but to causing such bodily injury as was likely to cause death - Held that conviction under Section 304 Part-II read with Section 149 IPC is justified (No paragraph numbers). B) Criminal Law - Unlawful Assembly - Sections 148, 149 Indian Penal Code, 1860 - The accused were members of an unlawful assembly armed with deadly weapons and inflicted injuries; trial court convicted under Sections 148 and Section 323/324/326 read with 149 IPC - Supreme Court dismissed appeals against these concurrent findings, holding that participation in unlawful assembly and causing injuries was established by credible ocular evidence - Held that membership in unlawful assembly with deadly weapons was proved (No paragraph numbers). C) Criminal Trial - Appreciation of Evidence - Sections 302, 304 Part-II, 149 Indian Penal Code, 1860 - Dying declaration Ex.PSS was rejected by High Court but the Supreme Court held that even if ignored, the evidence of injured eye-witness Chhota Singh PW12 and partly hostile witness Munshi Singh PW11 sufficiently proved the guilt - Held that rejection of dying declaration does not vitiate conviction when other reliable evidence exists (No paragraph numbers). D) Criminal Appeal - Sentencing - Sections 304 Part-II, 149 Indian Penal Code, 1860 - Supreme Court reduced sentence from 4 years rigorous imprisonment to already undergone, considering lapse of time, bail since 28.1.1985, and over two years imprisonment already served; fine of Rs. 5,000 maintained - Held that ends of justice met by reducing sentence to already undergone (No paragraph numbers).
Issue of Consideration
Whether the conviction of the appellants under Section 304 Part-II read with Section 149 IPC was justified based on ocular evidence despite rejection of dying declaration and hostility of injured witness; whether the sentence should be reduced considering delay and period already undergone.
Final Decision
Appeals of deceased appellants abated. The remaining appeals were dismissed subject to modification of sentence: sentence reduced from four years rigorous imprisonment to the period already undergone, while fine of Rs. 5,000 each was maintained.
Law Points
- Concurrent findings of fact based on ocular evidence not disturbed
- rejection of dying declaration does not vitiate conviction if other credible evidence exists
- evidence of injured hostile witness can be relied to the extent it supports prosecution
- common object under Section 149 IPC inferred from conduct
- non-use of firearms indicates lack of intention to murder
- sentence may be reduced considering lapse of time and already undergone imprisonment
