SUPREME COURT OF INDIA

Before:- K.T. Thomas and R.P. Sethi, JJ.

Cri. Appeal No. 1051 of 1998. D/d. 14.11.2000.

Pyarey and others - Appellants

Versus

State of U.P. - Respondent

Indian Penal Code, 1860, Sections 149 and 300 - Murder - Unlawful assembly - Out of five, two accused only ran behind the deceased - Though they were armed no attack made nor anything alleged to be said by them on the spot nor they prevented the deceased from running away - Common object or intention to kill cannot be inferred - Conviction of the said two accused under Section. 300/149 set aside and acquitted.

[Paras 6, 7 and 9]

ORDER

Five persons were convicted for the murder of one Tota Ram under Section 302 rad with Section 149 of the Indian Penal Code and all of them were sentenced to imprisonment for life. Though all the five preferred an appeal before the High Court one of them died during the pendency of that appeal - his name is Dori. So the case as against him stood abated. A Division Bench of the Allahabad High Court heard the appeal of the remaining four and confirmed the conviction and sentence passed on them.

2. We heard arguments of Mr. Praveen Swarup, learned counsel for the State at length. Mr. M.C. Dhingra, learned counsel for the accused reported that he is engaged in the High Court. We requested the State counsel to take us through the evidence of the eye-witnesses so that any point in favour of the accused should not be missed.

3. The substance of the case is this :

First accused Pyarey was already an accused in a murder case (in the murder of one Mohan). The deceased in the present case Tota Ram was cited as a witness to the occurrence in that earlier murder case. Prosecution case is that Pyarey wanted deceased Tota Ram not to give evidence against Pyarey in the murder case, but that demand was spurned down by Tota Ram.

4. On 21-11-1978 when Shobhi Ram (P.W. 1) was doing agricultural operations in his field his brother Tota Ram came by that way accompanied by two other persons (Manohar and Summeri). It was then that all the five accused ran towards the field. Seeing them running Manohar and Summeri fled away from the scene. As Tota Ram knew that the target of the assailants was himself he tried to escape from the scene. But he was chased by all the five accused and after some chase they succeeded in stopping the deceased. Three of the assailants (Pyarey, Dori and Gaindan) were armed with sharp cutting weapons similar to axe and they stood in front of the deceased blocking his further running. The other two persons (Khargi and Shobi) were armed with sticks, but they could reach only on the back side of the deceased. Witnesses' version is that the five assailants surrounded the deceased and the first three assailants attacked the deceased with the axe. Injuries sustained by the deceased thereby were so devastating that he died at the spot instaantaneously.

5. There were two eye-witnesses, P.W.1 - Shobhi Ram and P.W. 2 - Ajudhi Singh. The evidence of both of them was discussed in detail by the trial Court and the High Court. In the light of the defence strategy (totally denying their participation in the crime) the two Courts considered the broad criticism levelled against those witnesses. Yet the two Courts have chosen to place reliance on their testimony.

6. In this appeal under Article 136 of the Constitution we are not inclined to reopen the appreciation of evidence of the two eye witnesses. Still we entertain doubt as to whether accused Khargi and Shobhi would have shared the common object to murder Tota Ram. Evidence of the eye-witnesses has shown only that those two persons ran and remained behind the deceased. In spite of the fact that they were armed with sticks none of them used those weapons to inflict at least one beating on the deceased. None of them said anything at the spot. None of them prevented the deceased from running away nor did they step forward to stand in front of the deceased.

7. In the aforesaid broad situation it is difficult to conclude that accused Khargi and Shobhi ran only because they also shared the common object with the other assailants. Perhaps they would have run to rescue the deceased, but if that is too much to imagine at least they would have run to see what was going to happen. To say that their running was only with the common object along with the other assailants to murder the deceased we require something more to have been done by them. As the prosecution witnesses did not attribute anything more to those two accused we find it fifficult to confirm the conviction of thise two persons with the help of Section 149 of the Indian Penal Code.

8. In the result we confirm the conviction and sentence passed on accused Pyarey and accused Gaindan for the offence under Section 302 read with Section 34 of the Indian Penal Code. But we allow the appeal in respect of the accused Khargi and accused Shobhi and we set aside the conviction and sentence passed on them and acquit them. We direct that they should be released furthwith if they are not required in any other case.

9. This appeal is disposed of accordingly.

Order accordingly.