TEJ PAL Vs. STATE OF U P
LAWS(ALL)-1992-2-68
HIGH COURT OF ALLAHABAD
Decided on February 26,1992

TEJ PAL Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents


Referred Judgements :-

GODHU VS. STATE OF RAJASTHAN [REFERRED TO]
VISHWA NATHI VS. STATE OF JAMMU AND KASHMIR [REFERRED TO]


JUDGEMENT

M.K.Mukherjee, J - (1.)Tej Pal, Munshi and Chiranji, the three appellants before us, along with Ramesh and Neksey were placed on trial before the learned Additional Sessions Judge, Third Court, Etah. Against Ramcsh Charges under sections 148 and 302 of the Indian Penal Code were framed for committing the offence of rioting, armed with a deadly weapon, with the common object of murdering one Keval Singh and for committing flis murder and against the other four accused, charges under section 147 and 149 read with section 302 of the Indian Penal Code were framed. Against appellants Tej Pal and Neksey, charge under section 302 read with section 115 of the Indian Penal Code was also framed for the self-same murder. On conclusion of the trial, the learned Judge recorded an order of acquittal in favour of Ramesh and Neksey in respect of all the charges framed against them and in favour of appellant Tej Pal in respect of the charge under seCtion 302 read with section 110 of the Indian Penal Code. He, however, convicted and sentenced the three appellants under sections 147 and 149 read with section 302 of the Indian Penal Code. Hence this appeal at their instance.
(2.)There can be no manner of doubt that Tej Pal, Munshi and Chiranji could not have been convicted under section 302 with the aid of section 149 of the Indian Penal Code when the Prosecution case was that the five accused only formed the unlawful assembly and two of them, namely, Ramesh, who allegedly shot Keval dead, and Naksey, who exhorted him, had been acquitted and there is no Government appeal against their acquittal. In spite of our above finding, let us examine the evidence adduced during the trial in the light of the observations made by the Supreme Court in the case of Mohan Singh v. State of Punjab, to ascertain whether the appellants were actuated by any common intention to murder Keval. There is on record the following three dying declarations of deceased Keval (i) the First Information Report which Narsing Pal (P,W. 3) claimed to have taken down on the dictation of his brother Keval Singh and lodged in the police station Avagarh with his signature thereon. (ii) the statement of the deceased Keval Singh recorded by the Investigating Officer under section 161 of the Code of Criminal Procedure and (iii) the statement of Keval recorded by Dr. S. Prasad, Superintendent, District Hospital, Bahriach (P.W. 6).
(3.)The Additional Sessions Judge while dealing with the above dying declarations has not found them reliable at all in respect of the accused Ramesh and Naksey and he observed that they had been implicated as a result of tutoring. So far as the appellants are concerned, he proceeded to hold them guilty on the finding that they shared the common intention to murder Keval. The Additional Sessions Judge, in view of the Supreme Court decision in Godhu and another v. State of Rajasthan, could certainly examine, in spite of the dying declarations having been found to be unreliable with regard to Ramesh and Neksey, whether the appellants had made a plan and acted in concert to bring about the murder of Keval. But then, we find that the Additional Sessions Judge has totally misconstrued, and even misquoted, the evidence including the above dying declarations to record his finding of their guilt.


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