SHRI RAM & ANOTHER v. THE STATE OF UTTAR PRADESH November 6, 1974 [Y. V. CHANDRACHUD AND P. N, BHAGWATI, JJ,] Indian Penal Code, Section 107, third paragraph_:.Abetment, meaning of- Proof that crime charged could not have been committed without the interposi· tion of alleged abettor, i/ sufficie111 compliance with the section. Crirrfinal Trial-Conduct of shouting by accused during the occurrence- Court 1101 justified in heaping on,e assumption 011 another ta particular conduct of accused a meaning it does not naturally bear.
Code of Criminal Procedure, Section 342-Fai/ure of accused to explain her shout in her statement-Adverse inference, if could be drawn-Accused, if could rubiected to cross-examination.
Criminal Trial-Identification parade, a weak type of evidence-Oral testi· mony of prosecution witness, if should be corroborated by evidence of identifica- tiqn-Accused asking for an identification parade, a circumstance, in his favour. Three brothers by the name of Sia Ram, Shri Ram and Ram Chandra, a woman by the name of Vio1et, and her son Ramesh were tried by the learned Sessions Judge Farrukhabad, in connection· with the murder of one Kunwar Singh.
The learned Judge convicted Sia Ram under section 302, Penal Code and sentenced him to death. Violet was convicted under section 302 read with section I 09 and was sentenced to imprisonment for life. The remaining three accused were acquitted by th~ Sessions Court. . Sia Ram and Violet challenged their conviction by filing an appeal in the High Court while the State of U.P. filed an appeal against the acquittal of Shri Ram, Ram Chandra and Ramesh,. The High Court confirmed the conviction and sentence of Sia Ram and Violet. It dismissr.d the appeal filed by ·the State Government except in regard to Shri Ram whom it convicted under section 302 read with section 109. He was sen· tenced to imprisonment for life. Shri Ram, Sia Ram and Violet have filed these appeals by special leave.
Allowing the appeals by Sltri Ram and Violet and rejecting that of Sia Ram, HELD : ( i) The only part attributed to Violet is that on seeing the deceased Kunwar Singh, a practising lawyer, who was coming by cycle along with his two brother-lawyers, Brijendra Singh Yadav and Om Prakash Dubey, sbe shouted "The Vakil has come." The Sessions Court and the High Court have accepted the evidence that she did give the particular shout. In accordance with the prac- tice of this Court, no different view ought to be taken of these simple facts. [625A-C]
(ii) In ordE!r to constitute ab1:tment, the abettor must be shown to have "intentionally" aided the commis11ion of the crime. Mere proof that the crime charged could not have been committed withour the interposition of the alleged abettor is not enough complianc1~ with the requirements of section W7. Inten· tional aid and therefore active complicity is the gist of' the offence of abetment under the third paragraph of sec. 107. [625E·F]
(iii) Apart from the words attributed to Violet, there is nothing at all to show that she was aware of the nefarious design of Sia Ram and his associates. Violet who was working as a nurse with a doctor was friendly with Sia Ram who was his compounder but that may explain why, if at all, she agreed to do as directed. It is true that the assailants were carrying guns and hockey sticks. But on that account no fair inference can be drawn that she knew that they had all gathered to commit the m_urder of Kunwar Singh. The Court cannot heap one· assumption on another to give to Violet's conduct a meaning which it does not naturally 'A
. SHRI RAM v. U.P:.STATE (ChDndrachud, /.) bear. The words of Violet are at best in the nature Of a · cirCumstance and they do not, without more, necessarily justify the inference that she was a party lo the murderous design. [6250-H]
(iv) The High Court found fault with Violet for not having offered any ex- . plana tion during the trial as to why she uttered the. particular words. This ap- , roach. is impermissible. The burden was on the prosecution to establish its case ti\~.··~.;· and no adverse inference could be-Yaised against Violet for her·failure to explain bet utterance.
Besides, an acc\JSed cannot while being examined under section 34 2 of the Code of Crimin~! Procedure be subjected to cross-examination and a bald assertion to explain a piece of conduct almost always fails io convince. Therefore, it is not possible to agree with the High Court that Violet would not have announced the arrival of ·Kunwar Singh "unless she was aware that the accused persons were lying in wait on the other side of the road and it was neces- sary to inform them so that they might accomplish their aim." [626D-FJ .c
(v) Shri Ram, along with Ram Ghandra, had moved an application before the Additional District Magistrate (Judicial) who was conducung the committal proceedings that he was not known to the witnesses and therefore he should be put up .for being identified in an identification parade. The Public Prosecutor · objected to that request.
The learned Magistrate upheld the objection and re· fused to direct that a parade be held. The circumstance that Shri Ram bad vqlunt~rily accepted the risk of being identified in a parade but was. denied that .apportunity was an important point in his favour. The High Court rejected it as inconsequential by observing that the oral testimony of witnesses, even if not tested by holding an identification parade, can be made the basis of conviction if the request made by the accused is grou11dless and the witnesses knew the accused prior to the occurrence. It is correct to say that no rule of law requires that the oral testimony of a . witness should be corroborated by evidence of identification. In fact, evidence of .identification is ~tself a weak type of evidence. But the point of ·the niatter is that the court which acquitted Sbri Ram was justifiably lnftuenc~d by~ the. consideration that .though at the earliest stage he bad asked t~at an lde.nuficat1on parade b& held, the 'demand was opposed by .the prosecution and the oarade ·was therefore not held. But that is not the only point in favour of Shri Ram. Brijendra Singli who was riding on bicycle in the company of the deceased did not implicate Shri Ram. It was the other lawyer, Om Prakash Dubey,. who implicated him. His. evidence shows that it would be unsafe to rely on bis capacity or ·ability to identify Shri Ram. Sone Lal who gave the First Information Report at the police also implicated Shri Ram. Sane Lat's evidence is insufficient.lo sustaill the conviction of Shri Ram. In view of the serious in- firmities from which the evide.nce of Dubey suffers, the High Court ought not to have. interfered with the order of aequittal passed by the trial court in favour Shri Ram.
[6~7C; 628A-BJ CalMINArt~PBLLATB JURISDICTION: Crimi!l'al Appeal No .. 142 & 205 of 1973. · . G Appeals from the Judgment and Order dated the 12th Aprif 1973 of the Allahabad High Court in GOvt. Appeal No. 2847 /72 and by Special Leave from the Judgment and order dated the 12th April, 1973 in Crl. A. No. 1954 of 1972 and Ref. No. 87 respectively . D. B. Mukherjee, K. C. Agarwal,, M. M. L. Srivastava and E. C. Agarwala, for' the llppellant.
D. P. Unlyal and 0. P. Rana, for the respondent. The Judgment' of the Court was deiivered by CHANDR.Acmm, J.-These two appeals by special leave arise out of the judgment of the High Court of Allahabad dated April 12, 197~: ·
Three brothm by the rtame of Sia Ram, Shri Ram 'l18d' Ram €ha•; a woman by the lia~ of Violet; and her son Ramesh ·were lried::ty 9-L~19Sup. CI/75 fl975] 2 s.c.R. the learned Sessions Judge Farrukhabad, in connection with the murder of one Kunwar Singh. The ]'earned Judge convicted Sia Ram under section 302, Penal Code and sentenced him to death. Violet was con- victed under section 302 read with section 109 and was sentenced to imprisonment for life. The remaining three accused were acquitted by the Sessions Court. Sia Ram and Violet challenged their conviction by filing an appeal in the High Court while the State of U .P. filed an appeal against the acquittal of Shri Ram, Ram Chandra and Ramesh. The ·High Court confirmed the conviction and sentence of Sia Ram and Violet. It dismissed the appeal filed by the State Government ex- cept in regard to Shri Ram whom it convicted under section 302 read with section 109. He was sentenced to imprisonment for life. The incident in question took place at about 5 J.>.m. on October 20, 1970. The deceased Kunwar Singh was a pract1Sing lawyer and after finishing his work for the day he left the Fatehgarh court along with the brother-lawyers, Brijendra Singh Yadav and Om Prakash Dubey. They were proceedin11 on their bicycles and as they reached a spot near Barhpur Block, Violet is alleged to have shouted : "The Vakil has come". Sia Ram and his companions who were hiding be- hind a Shisham tree came out and confronted Kunwar Singh and his companioqs. Sia Ram, Ram Chandra and Shri Ram are alleged to have been armed with gun.s while Ramesh and an unknown person were carrying hockey sticks. Sia Ram fired a shot from a point blank range as •a result of which Kunwar Singh fell down. All the accused thereafter ran away. Brijendra Singh re1J1oved Kunwar Singh to a nursing home but the latter succumbed to his injury at 5-25 p.m. The other lawyer, Om Prakash Dubey, contacted the District Magistrate and the Superintendent of 'Police vainly ~ttempting to have the dying declaration of Kunwar Sinr,h recorded.
A person called Soney Lal, also alleged to be an eye-witness, lodg- ed the First Information Report at the police station at about 5-45 p.m. The Superintendent of Police K. N. Daruwala reached the spot of occurrence shortly before 6 p.m. R. N. Singh, the Sub-Inspector, held 'all inquest on the dead body of Kunwar Singh and sent it for post- mortem examination.
Dr. Rizvi who performed the post-mortem examination found a firearm wound on the left upper chest of the deceased. There were tattooing and scorching marks around the injury. The eviden.ce of Brijendra Singh Yadav (P.W. 4) is clear on the· part played by the appellant Sia Ram. That evidence shows that Sia Ram fired a shot from his gun. as a result of which Kunwar Singh fell down and died within half an hour. Brijendra Singh's evidence ha$ been accepted by both the courts and we are unable to see any valid reason for reje.cting it. Brijendra Singh is a natural .witness for he, like the deceased Kunwar Singh, had left the court after the court hours. Apart from the fact that he was a coll.&gue of the deceased he was not in any manner concerned with the deep-seated enmity bet· ween the appellant Sia Ram aE1d the deceased. The order of conviction and sentence in regard to Sia Ram must therefore be confirmed. c
c SHRI RAM v. u. P. STATE (Chandrachud, J.) Different considemtions, however, arise in regard to Violet. The only part attributed to her is that on seeing Kunwar Singh she shouted: "The Vakil has come". It is difficult to believe that Violet was assign- ed the particular role, especially when Sia Ram and his companions could themselves have detected the presence of Kunwar Singh more . easily and with lesser ado.
Violet's brother Ramesh a lad of 16 could have with greater ease and effectiveness played 'the swift role of alerting the assailants of Kunwar Singh. But the Sessions Court and the !figh Court have .accepted the evidence that Violet did give the particular shout and m accordance with our usu•al practice we would not like to take a different view of these simple facts.
The question whieh then arises for consideration, a question to which the Sessions Cqurt and the High Court have not paid enough attention, is whether the only inference which arises from the fact that violet gave the particular shout is that by so doing, she intended to facilitate the murder of Kunwar Singh, Section 107 of the Penal Code which defines abetment provides to the extent material that a person. abets the doing of a thing who "Intentionally aides,· by any act or illegal omission, the doing of that thing."
Explanation 2 to the section says that "Whoever, either prior to or at the time of the com- mission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to and the doing of that act." Thu.s, in order to constitute abetment, · the abettor must be shown to have "intentionally" aided the com- mission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107. A person may, for example, invite another casually or for a friendly purpose and that may facilitate the murder of the invitee.
But unless the invi- tation was extended with intent to facilitate the commission of the murder, the person inviting cannot be said to have abetted the murder. It is not enou~ that an act on the part of the alleged abettor happens to facilitate the commission of the crime.
Intentional aiding and therefore active complicity is the itlst of the offence of abetment under the third paragraph .of section 107. Apart from the words attributed to Violet, there is notl)ing at all to show that she was aware ·of the nefarious design of Sia Ram and his associates. Violet who was working as a Nurse with a doctor was friendly with Sia Ram who was his compounder but that may rather explain why, if at all. she agreed to do as directed. Learned counsel for the State contended that Sia Ram and his companions were carrying guns and hockey sticks and therefore she would know that they had all gathered to commit the murder of Kunwar Singh. T!tat is a far not a fair inference to draw. We cannot heap one assumption on another to give . to Violet's conduct a meanin!? which it does not naturally bear. The words of Violet are at best in th.e
n~t~e of a circumstance and they do not, without more, necessarily Justify the inference that she was a. party to the murderous design. lt975] 2 s.c.R. The High Court concluded on the complicity of Violet by a process of reasoning which does not commend to us. It says :
"In case Smt. Violet had not given intimation of the arrival of the advocate, the persons concealing themselves behind the SHISHAM tree may not· have noticed the arrival of · Kunwar Singh in time to assault him. In case the accused
were not assisted by Smt. Violet, they would have to sit in such a manner that they could watch persons moving about on the road. They could not have concealed their identity completely. They could realise that if they were· not.assisted by Smt. Violet and they had 'to act on their own, the deceased may notice their presence and may not proceeed further.
In case the accused persons concealed themselves thorbughly, they may not notice the arrival of the deceased in time to successfully aim at .him. Assistance asked for and rendered by Smt. Violet was real and valuable."
This chain of reasoning contains a multiplicity . of inf~nccs hardly justified by the . solitary circumstance that Viol~t informed Sia Ram and his colleagues of the presence of Kunwar Sm~.
· The High Court found fault with Violet for not havina offered any explanatfon during the trial as to why she i1tt~ the pwcu:ar words. This approach is i,mpermissible. The burden was Dn the
prosecution to ,establish its case and no adverse inference coqld be raised against Violet for her failure to expl~ her utterance; Besides, an accused cannot while being .e:laminc4 .under seetron ~42 of the Code of Criminal Procedure be subjected to cio8!1examiaatipn and a bald assertie>n to explain a piece of conduct almost: '.hlWllY!I fails to cq,nvince. We are, accordingly; unable to agree wjth the High Court that Violet W<>uld not have' 11nnounced the arrival of Kunwar Slpgh "unless she was aware that the accused persons ~
lying in wait c .D on the other side of the road and it was necessary to inform . them so· that they might accomplish .their. aim". . · . , .· . F In regard to Shri Ram, yet different consideratlojm pievail ·because the High Court was dealing with an appeal against an Order' ot acquit- . tal in h!s fave>ur. ,There are certain important c:Onsiderations ·which lend weight to the view of the trial court that it was unsafe to convict Shri Ram.
Shri Ram, aiong l!Vith Ram Chandra, had moved an application before the Additional District Majistrate (Judicial). who was conduct- ing the committal proceedings that he was not known to the witneases an~ therefore. he shoulcl be J>Ut Up for being identifi.ed m an identf11. cation parade.
'J'.he Public Prosecutor objected to that request. The learned Magistrate upheld the objection and refused to direct th~t a parade be held. The circumstance that Shri Ram had volun- tarily acceJ>te<! the risk of .beiitg identified in a parade but was denied that opportunity was an ·important point in his faYonr..
The ffi8h c SHRI RAM v. u. P. STATE (Chandrachud, J.) Court rejected it was inconsequential by observing that the oral testi- mony of witnesses, even if not tested by holding an identification · parade, can be made the basis of conviction if the request made by the accused is groundless and th~ witnesses knew the accused prior to the occurrence. It is correct tq say that no rule of law requires that the oral testimony of a witp.ess should .be corroborated by. evidence of identification. In fact, evidence of identification is itself a weak type of evidence. But the point of the matter is that the court which acquitted Shri Ram was justifiably influenced by the consideration that though at the earliest stage he had asked that an identification parade be held, the demand was opposed by the prosecution and the parade was there- fore .not held.
That is not the only point in favour of Shri Ram. Brijendra Singh Yadav who was riding on the Bicycle in the company of the deceased, Kunwar Singh did not implicate Shri Ram. It is the other lawyer, Om Prakash Dubey, who stated in his evidence that Shri Ram D was armed with a &U1l and he emerged from behind the Shisham trees after Violet gave the call. Dubey is a practisins lawyer and we will spare .hard words. But his evidence leaves much to be desired and, at the least, it shows that it would be unsafe to reply on .his capacity or ability to idel\tify
Sh+i Ram. In paragraph 4 of his evidence, repeated attempts were made by couns~l for Shri Ram to E test. the claim of Om Prakash Dubey that he knew Shri ~am and was therefore able to identify him. Question after question put in cross- examination was answered by the witness by saying either that he did not remember or that he did not know. Dubey claimed that he had appeared for the complainant in a prosecution arising out of the murder of one Hari Singh in which Shri Ram figured as an accused. There were two other accused in that case called 'Manphool' and 'Balister'. Dubey admitted that he could not say if he would be able to recognise Balister and that it was possible that he may not be able to recognise Manphool. It is doubtful whether Dubey appeared in the . case at all, which explains why he made the guarded statement that he had appeared on behalf of the complainant in so far as he coUld . remember. He was unable to say who had engaged him or who appear- ed the case along with him or who was examined as II: witness in the case or who used to instruct him in the case. Enveloped in ~is atmos- phere of doubt, Dubey thought the better of it to say : "I think I had filed my Vakalatnama in that case". The young Dubey had a standing of but 2 years in the District when he is supposed to have appeared for the complainant in the particular case. It is unrealistic to assume that . he was so flooded with work that he could remember no details of an important murder trial.
sum~MB COUB.11 RBPOllTS (1975] 2 s.c.R. Soney Laii who gave tlte First Infommt.i'On Report· at the· police station also implicatdd: Shti Rrun but, apparently, the Higlr Court was not impressed by hi& evidence.
It: has relied' on· the· evidence of Om Prakash Dubey in, order to hold that Shri Ram had played an important role in the murder of KU11WUr Singh. O:insfflering the serious infirmities from which the evidelilie· of Dubey sUf£ers we are of the opinion that the High Court ought not to have interfered with the order of acquittal passed by the trial court iii favol!I' of Shri Ram; · Soney Lal's evidence seems to us· in$\lftl.¢ient to sustaih the conv'iction of Shri Ram.
In the result we dismiss the appeat of Sia Ram and confirm hiS conviction and sentence. We allow the appeals of Viotet and Shri Ram and acquit them. These two Shall. be set at liberty forthwith. V.M.K.
A.ppealS PQltly dllowed.