1979 JTR(SC) 157
1979 AIR(SC) 1509 ; 1983 AIR(SC) 930 ; 1979 AllLJ 903 ; 1979 CriLR 722 ; 1983 CriLR 403 ; 1983 CriLR 413 ; 1983 2 Crimes(SC) 216 ; 1980 CrLJ 831 ; 1983 CrLJ 1289 ; 1983 1 Scale 672 ; 1979 4 SCC 494 ; 1980 1 SCC(Cri) 109 ; 1981 SCC(Cri) 1975 ; 1981 SCC(Cri) 275 ; 1981 1 SCC(Cri) 275 ; 1983 SCC(Tax) 191 ; 1983 3 SCR 321 ; 1980 ShimLC 60 ; 1979 UJ 885 ; 1979 1 UJ 885 ; 1983 1 UJ 728 ; 1979 KHC 820
SUPREME COURT OF INDIA
S. Murtaza Fazal Ali, A.D. Koshal, JJ.
Kunwar Bahadur and others – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 131 of 1972
Decided On : 22-02-1979
Act
Referred
:INDIAN PENAL CODE : S.302, S.300, S.149, S.307
UNITED PROVINCES BORSTAL ACT : S.7
(A) The accused were charged under Indian Penal Code sections 302 (murder), 300 (culpable homicide not amounting to murder), 149 (unlawful assembly), and 307 (attempt to murder), read with section 148 (resistance to arrest with assault), and also under the United Provinces Borstal Act, 1938, section 7, for a prisoner below twenty-one years sentenced to transportation or life imprisonment. The provisions of sections 302 and 149 establish liability for murder when the act is done by a member of an unlawful assembly with intent or knowledge likely to cause death, while section 307 addresses acts done with intent to kill or cause grievous hurt. Section 7 of the Borstal Act mandates that a juvenile offender sentenced to life imprisonment be sent to a Borstal School for a period not exceeding five years, with such sentence treated as equivalent to a higher sentence of life imprisonment.
(B) Key legal principles include the doctrine of constructive liability under section 149, IPC, where an offender is responsible for acts done by fellow members of an unlawful assembly; the application of juvenile justice provisions under the Borstal Act for offenders below twenty-one years; and the evaluation of evidence to determine the presence, role, and armament of each accused during a joint criminal enterprise.
Facts of the case:
The appellants were accused of involvement in an assault resulting in death, where an unlawful assembly used firearms and lathis. One victim died, and the prosecution relied on eyewitness evidence to link the appellants to the offence. One appellant was a juvenile at the time, and another had already undergone a five-year Borstal sentence.
Findings of Court:
The High Court found the prosecution case fully proved, dismissed the special leave plea, and upheld the convictions under sections 302/149, 307/149, and 148, modifying the sentence of death to life imprisonment. The Court addressed specific allegations regarding the nature of the weapon used by one appellant and the completion of the Borstal term by the juvenile appellant.
Issues:
Whether the High Court correctly inferred the use of firearms by each appellant and whether the appellant categorized as a juvenile had exhausted his term under the Borstal Act, precluding further sentence.
Ratio Decidendi:
Joint criminal enterprise established by acts and declarations; evidence of firing supports inference of guilt even if the exact victim of each shot is unclear; juvenile provision under Borstal Act applies irrespective of the theoretical equivalence of life sentence, and completion of the five-year term bars further imprisonment.
Result:
Appeal dismissed with costs; convictions upheld; sentence modified as per Borstal Act provisions for the juvenile appellant.
(A) The accused were charged under Indian Penal Code sections 302 (murder), 300 (culpable homicide not amounting to murder), 149 (unlawful assembly), and 307 (attempt to murder), read with section 148 (resistance to arrest with assault), and also under the United Provinces Borstal Act, 1938, section 7, for a prisoner below twenty-one years sentenced to transportation or life imprisonment. The provisions of sections 302 and 149 establish liability for murder when the act is done by a member of an unlawful assembly with intent or knowledge likely to cause death, while section 307 addresses acts done with intent to kill or cause grievous hurt. Section 7 of the Borstal Act mandates that a juvenile offender sentenced to life imprisonment be sent to a Borstal School for a period not exceeding five years, with such sentence treated as equivalent to a higher sentence of life imprisonment.
(B) Key legal principles include the doctrine of constructive liability under section 149, IPC, where an offender is responsible for acts done by fellow members of an unlawful assembly; the application of juvenile justice provisions under the Borstal Act for offenders below twenty-one years; and the evaluation of evidence to determine the presence, role, and armament of each accused during a joint criminal enterprise.
Facts of the case:
The appellants were accused of involvement in an assault resulting in death, where an unlawful assembly used firearms and lathis. One victim died, and the prosecution relied on eyewitness evidence to link the appellants to the offence. One appellant was a juvenile at the time, and another had already undergone a five-year Borstal sentence.
Findings of Court:
The High Court found the prosecution case fully proved, dismissed the special leave plea, and upheld the convictions under sections 302/149, 307/149, and 148, modifying the sentence of death to life imprisonment. The Court addressed specific allegations regarding the nature of the weapon used by one appellant and the completion of the Borstal term by the juvenile appellant.
Issues:
Whether the High Court correctly inferred the use of firearms by each appellant and whether the appellant categorized as a juvenile had exhausted his term under the Borstal Act, precluding further sentence.
Ratio Decidendi:
Joint criminal enterprise established by acts and declarations; evidence of firing supports inference of guilt even if the exact victim of each shot is unclear; juvenile provision under Borstal Act applies irrespective of the theoretical equivalence of life sentence, and completion of the five-year term bars further imprisonment.
Result:
Appeal dismissed with costs; convictions upheld; sentence modified as per Borstal Act provisions for the juvenile appellant.
Judgment
FAZAL ALI, J. :- This appeal by special leave is directed against the judgment of the Allahabad High Court dated 5-10-1971 upholding the conviction of the appellants under S. 302 / 149, I. P. C. but commuting the sentence of death to one of life imprisonment. The appellant were also convicted under S. 307 / 149 and sentenced to five years rigorous imprisonment and under S. 148 to two years rigorous imprisonment. We have heard Mr. Mulla, counsel for the appellant at great length and we have also heard Mr. Uniyal for the State. We have been taken through the judgment of the High Court and the evidence of the High Court and the evidence of the eye-witnesses. After perusing the record we find that the prosecution case against the appellants has been fully proved as held by the High Court and there does not appear to be any error of law or misreading of any evidence so as to warrant our interference in special leave. Mr. Mulla, however, specially stressed the cases of two of the appellants, namely, Raja Ram and Nand Kishore. As regards Raja Ram, Mr. Mulla placed reliance on the finding of the High Court which appears to have found that even though Raja Ram was alleged to have been armed with a gun he may have caused an injury with a lathi as he has admitted in his statement under S. 342. The evidence of P. W. proves clearly two facts against this appellant. Firstly the appellant before the occurrence exhorted the other assailants of the decesed persons and the injured to open the assault by gune and other weapons. Secondly, that this appellant was also armed with a gun and there is consistent evidence of the eye-witnesses that all the three guns were fired though only one fire hit Nathu. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having been fired because it may be that even though the other guns were also fired their bullets did not hit anybody. In this view of he matter the High Court was not justified in holding that Raja Ram was armed with a lathi. Moreover, Raja Ram in his statement under S. 342 has not denied his presence at the spot but has admitted his presence there and has even stated in his statement under S. 342 before the committing Magistrate that he had also assaulted the prosecution party with lathi. In this view of the matter there is absolutely no reason to acquit Raja Ram of the charge framed against him. The High Court was, therefore, fully justified in upholding his conviction though not for the reasons given by it. The first countention put forward by the learned counsel for the appellant is, therefore, overruled.
2. It was then argued that so far as appellant Nand Kishore is concerned, he appears to be only 15 years at the time when the occurrence took place and it appears that when he was sent to prison the Jailor referred him to the Sewa Sadan under S. 7 of the United Provinces Borstal Act, 1938. Under this section where a prisoner is sentenced for transportation i.e. life imprisonment and is below the age of 21 years he should be sent to Borstal School where he cannot be detained for more than five years. The law thus contemplates that for such an 1510 offender the sentence of five years will be equivalent even to a higher sentence of life imprisonment. It is not disputed before us that the appellant Nand Kishore had already served 5 years in that institution and has been released therefrom. The question, therefore, of his surrendering to serve the remaining sentence does not arise. With this modification the appeal is dismissed.
Orders accordingly.
For Citation : AIR 1979 SC 1509