The Allahabad High Court has dismissed a criminal appeal challenging the conviction and life imprisonment of an accused involved in a brutal murder committed in 1985. The Division Bench comprising Justice Chandra Dhari Singh and Justice Chawan Prakash observed that minor discrepancies in witness statements and defects in investigation do not warrant acquittal when the ocular evidence is consistent and trustworthy.
The Court upheld the conviction of the appellant, Sanwarey, under Sections 302 read with 149 of the Indian Penal Code (IPC), affirming the principle of vicarious liability for members of an unlawful assembly.
Background of the Case
The case dates back to April 7, 1985, in village Gajauli, District Basti. The complainant, Smt. Murta, lodged an FIR stating that her husband, Bideshi Kurmi, was murdered during the night while sleeping in his Khalihan (threshing floor). According to the prosecution, there was a pre-existing dispute and altercation regarding house partition and roof repairs between the deceased and the accused persons—Achhaibar, his sons Phoolman and Sanwarey, and others including Ram Dass and Rajendra.
The prosecution alleged that at approximately 3:00 AM, the accused persons arrived at the spot. Rajendra was armed with a knife, while the others, including the appellant Sanwarey, were armed with lathis. They assaulted Bideshi, resulting in his death on the spot. The postmortem report revealed nine ante-mortem injuries, including fractures and lacerated wounds.
The Sessions Judge, Basti, vide judgment dated May 27, 1987, convicted all five accused for murder and rioting. Aggrieved by the order, the accused preferred an appeal. During the pendency of the appeal, appellants Achhaibar, Rajendra, Ram Dass, and Phoolman passed away, causing their appeals to abate. The High Court proceeded to decide the appeal solely on behalf of the surviving appellant, Sanwarey.
Arguments Raised
Counsel for the appellant, Sri Jaiprakash Narain Raj, raised several grounds challenging the conviction:
- Contradictions: It was argued that there were material contradictions in the statements of the eyewitnesses regarding the specific roles assigned to the accused.
- Light Source: The defense contended that while witnesses claimed to have torches, no recovery memo for the torches was prepared by the Investigating Officer (IO). Further, it was argued that there was insufficient light to identify the assailants.
- Tainted Investigation: The defense highlighted that while the IO claimed blood was found on the clothes of the accused Rajendra, the Forensic Science Laboratory report found no blood, suggesting the investigation was tainted.
- Role of Appellant: It was argued that Sanwarey was armed with a lathi, but the fatal injuries were attributed to the knife carried by the co-accused Rajendra.
Learned Additional Government Advocate, Sri S.N. Tewari, opposed the appeal, submitting that the contradictions were trivial. He argued that since it was a moonlit night and the parties were known to each other, identification was not an issue. He further submitted that non-seizure of the torch was a lapse by the IO which should not benefit the accused.
Court’s Analysis and Observations
The Bench meticulously examined the evidence and legal precedents.
1. On Witness Discrepancies: Addressing the alleged contradictions, the Court noted that the eyewitnesses—the wife of the deceased and neighbors—were natural witnesses. Citing the Supreme Court judgment in State of Rajasthan Vs. Kalki (1981), the Court observed:
“In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time… Material discrepancies are those which are not normal and go to the root of the prosecution case.”
The Court found the testimony of the eyewitnesses to be consistent on material points.
2. On Defective Investigation: Regarding the defense argument that the investigation was tainted due to the forensic report contradicting the IO’s claim about bloodstains, and the failure to seize torches, the Court held that the accused cannot be acquitted solely on the grounds of defective investigation. Relying on C. Muniappan v. State of Tamil Nadu (2010) and Edakkandi Dineshan alias P. Dineshan Vs. State of Kerala (2025), the Court stated:
“It is well within the domain of the courts to consider the rest of the evidence which the prosecution has gathered such as statement of the eyewitnesses, medical report etc. It has been a consistent stand of this Court that the accused cannot claim acquittal on the ground of faulty investigation done by the prosecuting agency.”
3. On Vicarious Liability (Section 149 IPC): The Court rejected the argument that the appellant should be acquitted because he was armed with a lathi while the co-accused used a knife. The Court emphasized that Sanwarey was a member of an unlawful assembly with the common object of eliminating the deceased. Citing Krishnappa Vs State of Karnataka (2012), the Bench held:
“The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not.”
4. On Identification The Court dismissed the plea regarding insufficient light. The Bench noted that the incident occurred on a moonlit night and the parties were relatives and neighbors. Citing Anwar Hussain Vs. State of UP (1981), the Court observed:
“Even if there is insufficient light, a witness can identify a person, with whom he is fairly acquainted or is in intimate terms. From his voice, features etc.”
Decision
The High Court termed the incident a “gruesome murder” where the deceased was “mercilessly attacked.” The Court concluded that the prosecution successfully proved its case beyond reasonable doubt.
“We have carefully scrutinized and examined the evidence of PW-2, Smt Murta, PW-3 Shankar and PW-4 Ram Naresh and we find that they have been correctly marshalled and assessed by the learned Trial Court,” the Bench ruled.
The Criminal Appeal was dismissed. The Court cancelled the bail bond of the appellant, Sanwarey, and directed him to surrender before the concerned court within four weeks to serve out the life sentence.
Case Details:
- Case Title: Achhaibars and others Versus State of U.P.
- Case Number: Criminal Appeal No. 1565 of 1987
- Bench: Justice Chandra Dhari Singh and Justice Chawan Prakash
