Omkar Singh vs Jaiprakash Narain Singh on 9 February, 2022


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Supreme Court of India

Omkar Singh vs Jaiprakash Narain Singh on 9 February, 2022

Author: M.R. Shah

Bench: M.R. Shah, B.V. Nagarathna

                                                                   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)



                                          JUDGMENT

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
Signature Not Verified

Digitally signed by R
Natarajan
Date: 2022.02.09
16:13:04 IST
punishable under Section 302 read with Section 34 of the
Reason:

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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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