State of Bihar v. Pashupati Singh & Anr. & Vice Versa

Judgment

STATE OF BIHAR PASHUPATI SINGH & ANR. & .VICE VERSA September 24, 1973 [H. R. KHANNA AND A. ALAGIRISWAMI, JJ.] Cr_iniinal Law-Practice and procedure-Whether identification chart should conta111 a complete stat~111~nt. The t\vo deceased, husband and wife, along with their daughter and servant were travelling by train. At a wayside station the two appellants and another co·accused, still absconding, got into the compartment armed with deactly wea· pons. The husband and wife were robbed and in the scuffie that followed both were fatally injured. After the arrest of the accnsed they were identified by the daughter and the servant of the deceased. The accnsed were convicted by the trial court for the offences under sections 3!1.4 and 302 I.P.C. The High Court, holding inter o.lia, that in the test identification chart there was no specific mention about the assault by the first accused on one of the deceased. acquitted both the accused of the offence under s. 302 I.P.C. Dismissing the appeal . of the appellants with respect to the offence under s.

394 and allowing the appeal by the State with respect to the offence under s. 302. HEI.D : The use made by the judges of the High Court of the test identification chart was faulty. Tho test identification chart would not and could not be expected to contain a complete statement. The two accused were identified by the two eye-witnesse• and they both spoke of the attack 011 one of the deceased by the second accused. It could not, however, be said that the first accused did not cause injuries to anybody or that nobody caused any injury· to the other deceased. The High Court also did not find that the first accused did not cause any injury to either of the deceased. [74SE1 If it \Vas difficult to say which injury was caused by which of the accused;. the natural inference would be that all the three accused caused one injury each on each o"f the deceased.

As the injury caused by the weapons in the hands of the two accused were such as were enough to cause death, the two accused were equally guilty of murder .. The fact that they could not have started with the intention of committing murder but only to commit robbery was not relevant. The injuries were sufficient in the ordinpry course of. nature to cause death and, therefore, the accused would be guilty of murder. (745 G-H) Considering the fact that there had been a long interval between the date 'of the offence and dismissal of the appeal and the mental agony Undergone by the accused, the ends of justice would be piet if sentence of life imprisonment was award. [7468) CR1inNAL AnELLATE JURISDICTION : Criminal Appeal Nos. 53 and 54 of 1970. Appeals by special leave from the judgment and order dated the 15th October, 1969 of the Patna High Court in Criminal Appeals Nos. 150, 152 and 167 of 1969. u. S. Prasad, S.K. Sinha, B. B. Sinha and D. p. Mukerjea, for the appellant (in appeal 53170) and respondent (in appeal 54/70).

U. P. Singh, for the respondent (in appeal 53/70) and appellants (in appeal 54/70)- BIHAR v. PASHUPATJ SINGH (Alagiriswami, !.) 743. The Judgment of the Court was oelivered by .ArAGIRIS\VAMI, J. The two appellants in Cr!. A. N. 54 of 1970 wc:re tried before the Additional Sessions Judge of Bhagalpur for off-. ences under ss. 302 2nd 394 of the Indian Penal Code and convicted by him for both the offences. On a reference made by the Additional Sessions Judge for confirmation of the death sentence awarded to them and two appeals filed by them, the High Court of Patna upheld their conviction under s. 394 but acquitted them of the offence under section 302. The accused as well as the State of Bihar have appealed to this. Court, the former in respect of their conviction under s. 394 and the State against their acquittal in respect of the offence under s. 302. The facts giving rise to these appeals are as follows :

Ram Prasad Manda!, a resident of Bhagalpur, his wife Rukmini and their daughter Pushpa Devi were returµing from Vellore, where the daughter under-went treatment. They were travelling from Calcutta to Ilhagalpur by the Howrah Danapur Fast Passenger on. 6·4-1965. They were accompanied by their servant Mohan Lal (P.W·l). At Pirpainty railway station appellant Pashupati Singh entered their compartment and when the train reached Ghogha railway station appellant Sutali Rai and another accused, now absconding, got into that compartmen\. The two appellants had Gupti in their hands. After some time the absconding accused took out a Chura and asked· Ram Prasad Manda! to give him whatever he had. AJ>Pellant Pashupati Singh stood near Mohan Lal and Sutali Rai near Rukmini Devi. Ram Prasad Manda! offered whatever he had but tried to catch the hand of the abscondjng accused. Thereupon all the three accused attacked Ram Prasad Manda! who fell down.

Rukmini Devi asked them not to assault and took out her churies from one hand and ·handed over to one of the accused. Her necklace was snatched by one of the three accused and when she tried to pull the alarm chain all the. three assaulted her with the weapons in their hands and she also fell down. Mohan Lal who tried to intervene was assaulted with a Gwpti by Pashllpati Singh and relieved of his wrist watch and rupees fifty or sixty, which he had. Push pa Devi handed over her ornaments. Tite misereants thereafter pulled the chain and got out of the train. When the train stopped, Fireman Abdul Aziz (P.W.8) came to the compartment and found Push pa crying and Ram Prasad. Manda! and· Rukmini Devi lying injured- The Guard (P.W.10) als<,> came there. At the next railway' station Sabour the Assistant Station Master (P.W.5) advised them to go to Bhagalpur as there would be delay in· getting medical aid at Sabour. He also informed Bhagalpur railway station.

The train reached Bhaga!pur at about 1.15 A.M. on 7·4-1965. P.W.10 handed over a written memo, Ext.2, to the Officer-in-charge Railway Police, on the basis of which the first information report was drawn up by P.W.12 at about 1.45 AM. By this time Ram Prasad Manda! was dead and Rukmini Devi was in a serious condition. All' of them were sent to the hospital where Rukmini Devi died at 6 A.M. The aooellant Su tali Rai surrendered on the 10th of May, 1965 while Pashunati Simm was arrested on the 11th of Mav. 1965. In the test irnientification parade held on the 24th of May, 1965 Mohan Lal and' SUPlrnME cpURT REPORTS [ 1971 J 1 s.c.R. Pushpa Devi identified both of them. In due course a charge sheet was laid against both of them with the result already mentioned. Pashupati Singh's defence was that he was innocent, that the two eye witnesses had opportunities to know him before the occurrence and that he had been.shown to them before the identification parade.

Suti!li Rai also alleged that he had been show.n to the identifying witnesses. We are satisfied that the conclusion arrived at by the courts below found. If as alleged by Pashupati Singh, PWs I and 2 and they had properly identified the assailants, is based on a proper appreciation of the evidence. We shall later deal with the question as lo the offence of which the appellants were acquitted. A number of suggestions,. some of them even contradictory of each other, and none of them in any way seriously affecting the veracity of PWs 1 and 2, were put forward before the cou:ts below as well as before this Court. We find them all devoid of substance just as the courts below found. If as alleged by Pashupati Singh, PWs I and 2 had known him earlier there was hardly any need to show him to. them before the identification parade.

What is more, PWs I and 2. if they had known Pashupati Singh earlier, would have informed the police that they knew one of the assailants and could identify him though they did not know his name. That was not the case here. There is no motive either for .PW 1 or PW 2 falsely implicating the appel· !ants. Nothing which can shake their credibility has been elicited in their cross-examination. Very vague and wild suggestions were made about the possibility of Ram Prasad Manda! having been murdered by his nephew Tarkeshwar Prasad; that there had been an attempt on tM life of Ram Prasad Mandal's son and the same person might have been responsib!e for murdering Ram Prasad Manda!; that Ram Prasad might have killed him on that account. There is no substance in any one of these suggestions.

It was also suggested that Mohan Lal was not in the eompartment when the occurrence took place, as Tarkeshwar Prasa.d who is said to have sent money through him to Calcutta 11as not examined and nobody else spoke of his leaving for Calcutta Sol!le argul!lent was even sought to be made on the basis of the pre- ~ence of only two holdalls and of the impossibility of Pushpa Devi having sat on Mohan Lal's holdall. There can be no doubt that Mohan Lal was present in the compartment at the time of the occurrence. . It was not even put to Pushpa Devi in her cross-examination ·that Mohan Lal was not present. Nor was such a suggestion put to Mohan Lal. We consider that the evidence clearly establishes that it was the two appellants and the absconding accused who were responsible for the robbery and the murders committed on the train.

We do not thio_k it necessary to refer at length to all the evidence i.n this case or all the points that were raised in the course Of the a.rgun:ients as we do not consider that they in any way weaken the findings of the cour.ts belpw on the central point about "the robbery and the murders and this Court does not normally re-appraise the evidence excep\ in cas,es of gross miscarriage of justi~. BJHAR v. PASHUPATI SINGH (Alagiriswami, J.) We now come to the aQP!lal filed by the State of Bihar against the acquittal of the, two appellants of the charge of murder· We are of opinion that the conclusion of the High Court on this point cannot be accepted. The learned Judges of the High Court referred to the in· juries found on the two deceased and to the medical evidence that of the 3 injuries found on each of the two deceased one could have been caused by a dagger while the other two could have been caused by a Gupti.

According to the prosecution evidence, the dagger jnjuries were given by the absconding accused while the two other .injuries were given by the two appellants. The learned Judges <thought that Pashupati Singh who was. mounting guard on Mohan Lal would not have gone away from him and assaulted Ram Prasad Manda! and Rukmini Devi. They have also stated that in the test identifica· tion chart there is no mention about specific assault by Sutali Rai on .Rukmiru Devi. They considered that when the weapons were not produced and there was no description of the weapons given, it was difficult to hold that a particular injury was caused by the absconding accused while the other injuries were caused by the two appellants. They were of the opinion that it could not be inferred that the miscreants wanted to commit murder while committing robbery, and that there was no intention or common intention to commit murder.

This was the reason which led them to hold that the appellants were not guilty of, the offence of n,urder. We are of opinion that the use made by the learned Judges of the High Court of the test identiJica· tion chart is faulty. The test identification chart does not and cannot be expected to contain a complete statement. It shows that P.W. 1 identified both the accused and he was robbed of his wrist ·watch and money. It also mentions that he also stated that Sutali Rai attacked Ram Prasad Manda! with Gupti. P.W. 2, Pushpa Devi, is said to have identified both the appellants and stated that she saw Pashupati Singh attack and rob Mohan Lal of his watch and that Sutali Rai attacked Ram Prasad Manda! with a Gupti. It will be seen that the mention here is only about Sutali Rai attacking Ram Prasad Manda! with Gupti. It cannot therefore be said nor do the learned Judges say, that Pashupati Singh did not cause injuries to anybody and nobody caused any injury to Rukmini Devi.

We would have understood it if the learned Judges had stated that Pashupati Singh did not cause any injury to either of the deceased. They do not say so. We should also consider that if it was difficult to say which injury was cansed by which of the accused, the natural inference would be that all the three accused caused one injujry each on each of the de· ceased. As the injuries caused by the Guptis were such as were enough to cause death the two ap~!lants are equally guilty of murder. ( 1974 J 1 S.C.R. The fact that they could not have started out with the intention of committing murder but oniy with the intention pf committing robbery is neither here nor there. If they have caused injuries which were sufficient in the ordinary course of nature to cause death there can be no doubt that they would be guilty of murder. We would, therr.fore, hold differing from the lea'rned Judgts of the High Court, that both .the accused are guilty of the offence of murder.

Considering the fact, however, that there has been a long interval between the date of the offence and now and the appellants having been under a sentence of death till they were acquitted by the High Court they would have undergone a period of mental agony, we would consider that the ends of justice would be met 'in lhe circumstances of this case if a sentence of life imprisonment is awarded to the two appellants. The appeal by the State is allowed. to this extent and the appeal filed by the accused is dismissed. P.B·R. Cr. Appeal 53 of 1970 allowed .. Cr. Appeal 54 of 1970 dismissed.