LexSUNIL KUMAR AND ANR. versus STATE OF U.P.
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[201 OJ 1 S.C.R. 289 SUNIL KUMAR AND ANR. v. STATE OF U.P. (Criminal Appeal No.1241 of 2003) JANUARY 6, 2010 [V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA, JJ.] A B Penal Code, 1860 - s.304, Part II rlw ss.147 and 149 - Unlawful assembly with common object - Assault with sticks C - Death, due to coma as a result of head injuries - Conviction of accused-appellants - Challenged - Held: Absence of motive was irrelevant in view of availability of evidence of 3 eye-witnesses, one of whom was father of the deceased - Their presence at the incident was most natural - All eye- D witnesses specifically deposed about presence of accused persons and their individual acts in assaulting the deceased on his head - Evidence given by them could not be shaken even in cross-examination - Punishment imposed by Courts below was lenient - Conviction as well as sentence E accordingly upheld. According to the prosecution, the three appellants alongwith two others formed an unlawful assembly and in pursuance of their common object, committed the murder of PW-1 's son, when he was working in his shop, by inflicting injuries upon him with /athis/dandas. F In the post-mortem examination, three injuries were found on the head of the deceased. According to the doctors, death was due to coma as a result of the head G injuries caused by blunt weapons. The appellants alongwith the other two accused were charged and convicted by the courts below under s.304 Part II rlw ss.149 and 147 IPC and sentenced to rigorous 289 H 290 SUPREME COURT REPORTS [2010] 1 S.C.R. A imprisonment for four years. Appellants challenged their conviction before this Court. The other two accused had died in the meanwhile. The appellants contended that there was absolutely 8 no reason for the accused persons to assault the deceased and no motive was attributed to them and in absence of any motive, the prosecution case became extremely doubtful. It was further contended on behalf of the appellants that the evidence of PW-1, being a father, C would be that of an interested witness and there was no possibility of the other two witnesses PW-2 and PW-3 being eye witnesses, as they were busy in their own shops. It was also contended that in any event the offences alleged would not come under s.304 Part II IPC D and at the most would come under s.325 or s.326 IPC. Dismissing the appeals, the Court HELD: 1.1. Motive in a criminal case is irrelevant where evidence of the eye-witnesses is available. In the E present case, there were as many as three eye-witnesses, one of whom i.e. PW-1 was the father of the deceased. Therefore, the question of absence of motive would have no importance whatsoever. [Para 6] [294-F-G] F 1.2. It has clearly come in the evidence that PW-1 was very much present at the shop of the deceased while the shop of PW-2 is just by the side of the shop of the deceased. It has also come in the evidence that the shop of PW-3 is about 20 yards from the shop of the deceased. G Considering this position and also considering that it was 5 O'clock in the evening, there is no possibility of the shop remaining closed and under these circumstances, the presence of the eye-witnesses would be most natural. Therefore, on that count, the evidence cannot be H discarded. Though it was also suggested that the day on SUNIL KUMAR AND ANR. v. STATE OF U.P. 291 which the occurrence took place was Tuesday and as . A such the market remained closed, but the shops of the deceased as also the eye-witnesses were in the nature of small workshops where welding and electric work etc. was going on and under such circumstances, it is not possible to hold that such small shops also remained 8 closed on Tuesday. Again, in the wake of the direct evidence of the witnesses, it cannot be accepted that the shops were not there. All the three witnesses have very specifically deposed about the presence of the accused persons. They have also deposed about the individual C acts in assaulting the deceased on his head. The evidence given by these witnesses could not be shaken even in the cross-examination. [Para 7] [295-A-F] 1.3. As regards the suggestion that PW-1 had in his evidence admitted that he did not pay any tax to the D municipality and there was no permit which would mean that there was no shop as such, merely because the permit was not there, it does not mean that the deceased was not doing the gas welding w
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