OMKAR SINGH versus JAIPRAKASH NARAIN SINGH & ANR.

Citation: [2022] 1 S.C.R. 550 · Decided: 09-02-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 1 S.C.R.
[2022] 1 S.C.R. 550
550
OMKAR SINGH
v.
JAIPRAKASH NARAIN SINGH & ANR.
(Criminal Appeal No. 84 of 2022)
FEBRUARY 9, 2022
[M. R. SHAH AND SANJIV KHANNA, JJ.]
Penal Code, 1860 – s.302 r/w s.34 – Murder – Common
intention –Two accused, A-2 (respondent no.1) and his son (A-1) –
Three PWs – Sessions Court convicted A-1 u/s.302 and A-2 u/s. 302
r/w 34 – High Court affirmed conviction of A-1, but, acquitted A-2
– On appeal by first informant/ son of deceased, held: High Court
erred in acquitting A-2 – All three PWs were consistent and fully
supported the case of prosecution – Even as per the High Court the
motive was established and proved – High Court also observed
that due to land dispute there was enmity between the parties –
Therefore, High Court ought to have appreciated that A-2 was
rightly convicted with the aid of s.34 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 (A-2) killed the deceased by fire arm – Once
the presence of A-2 was established and proved and specific role of
exhortation was assigned to him, the High Court ought to have
confirmed the conviction of A-2 u/s.302/34 – Judgment of trial court
convicting A-2 u/s.302/34 and sentencing him to undergo life
imprisonment, accordingly, restored.
Allowing the appeal, the Court
HELD:1. Respondent No.1 – accused No.2 was named in
the FIR. There are three eye witnesses to the incident namely
PW-1, PW-2 and PW-4 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– accused No.2
exhorted his son to kill the deceased and his son – accused No.1
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killed the deceased by fire arm. All the three prosecution
witnesses are consistent and fully supported the case of the
prosecution. 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 confirmed the conviction
of respondent No.1 – accused No.2 also relying upon the three
eye witnesses. [Para 12][555-F-H; 556-A-B]
2. 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 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. [Para 12.1][556-C-F]
3. The High Court 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
judgment and order passed by the Trial Court convicting
respondent No.1 – accused No.2 for the offence punishable under
Section 302/34 of IPC and sentencing him to undergo life
imprisonment is hereby restored. [Paras 12.2, 13][556-H;
557-A, B]
OMKAR SINGH v. JAIPRAKASH NARAIN SINGH & ANR.
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
84 of 2022.
From the Judgment and Order dated 15.03.2019 of the High Court
of Judicature at Allahabad, U.P. in Criminal Appeal No.304 of 1983
along with Correction Order dated 02.05.2019 in Crl. Misc. (Correction)
Application No.03 of 2019.
D. P. Singh Yadav, Rajeev Kumar 

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