RAKESH AND ORS. versus STATE OF U.P.

Citation: [2002] SUPP. 1 S.C.R. 213 · Decided: 18-07-2002 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Dismissed

Judgment (excerpt)

RAKESH AND ORS. 
A 
v. 
STATE OF U.P. 
JULY 18, 2002 
[Y.K. SABHARWAL AND H.K. SEMA, JJ.] 
B 
Penal Code, 1860: Sections 147, 149, 302 and 304Part111149. Murder-
Identity of accused not established-Accused acquitted on benefit of doubt-
Correctness of-Held, doubt in the story of the prosecution has to be reasonable 
and not in1aginary-On the testimony of prosecution witnesses corroborating 
from records, if it stands established that accused had committed the murder, C 
they could be held guilty of the charge. 
According to the prosecution, there was enmity between accused 
persons and deceased. Earlier one 'R', an MLA, was allegedly murdered 
by the deceased who was convicted by the Sessions Court. However, on 
appeal High Court set aside the conviction. On the fateful day, when PWl/ D 
Complainant alongwith deceased was returning fro~ his aunt's house, 
both of them were intercepted by the accused persons and they had beaten 
the deceased brutally in the presence of several persons including PW2. 
On the complaint of PWl, an FIR was recorded; soon after Sub-Inspector 
(PW4) went to the spot and found the deceased in precarious condition. E 
Two of the accused present there were arrested; blood stained clothes were 
recovered and deceased was sent to hospital where he succumbed to his 
injuries. Another report was lodged by one of the accused alleging that 
deceased went to the house of 'R' to molest his widow. 
Sessions Court acquitted four of the accused-appellants as they were F 
not arrested at the place of occurrence of crime and as their identity had 
not been established. Two of the accused were not convicted for offence 
under Section 302/149 I.P.C. but were convicted under Section 304 Part 
Il/149 I.P.C. as it was not clear as to which of the injuries had proved 
fatal and who had caused the injuries. High Court allowed the State G 
appeals and convicted all the six accused for offences under Section 147 
and 302/149 IPC for the murder of deceased. Hence these appeals. 
lt was contended for the appellant that High Court was under a 
wrong impression that one of the accused was son of 'R' while in fact he 
was son of another person of similar name; and this was because the H 
213 
214 
SUPREME COURT REPORTS [2002] SUPP. I S.C.R. 
A Investigating Officer did not mention the parentage of the accused persons 
in the site plan. 
Dismissing the appeals, the Court 
HELD: 1. 
Many of the injuries on the deceased are clearly deep 
B injuries on head. The Sessions Court did not consider the impact of these 
injuries and instead convicted accused 'A' for offence under Section 304 
and not under Section 302 on the ground that it was not clear as to which 
of the injuries had p'roved fatal. The Sessions Court lost sight of the fact 
that the accused has also been charged for offence under Section 302/149 
C IPC. The view of the Sessions Court was clearly perverse. The High Court 
has given valid and justifiable reasons for setting aside the conviction 
under Section 304 and convicting accused 'A' for offence under Section 
302/149 IPC. 
2.1. As regards the appeals of the other four accused, the Additional 
D Sessions Judge after rejecting the defence story of deceased having visited 
the house of late 'R' to molest his widow held that all the accused, including 
those whose identity had not been properly established, were concerned 
in the matter. In view of the identity of four accused persons not being 
established these accused were acquitted by the Additional Sessions Judge 
who held that there might be some other persons with the same name. 
E The doubt in the story of the prosecution has to be reasonable and not 
imaginary. Undoubtedly, one of these accused was the Secretary of 'R' 
and was involved in getting the bail of PWl cancelled in the murder case 
against him. No specific role was established against him and insofar as 
accused 'S' is concerned, his name was not mentioned in the FIR and for 
F 
these reasons they were entitled to benefit of doubt, their identity having 
not been established. In the FIR though name of the said accused was not 
mentioned as younger son of 'R', High Court on thorough scrutiny of the 
evidence has rightly reversed the judgment of acquittal of these accused. 
2.2. Omission to mention the parentage of the accused and the 
G witnesses in the written report of PWl did not mean that the FIR was 
written afterwards. On the facts of the case, it rather lends assurance to 
the testimo

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