PETITIONER: DUKHMOCHAN PANDEY & ORS., SHAMSUL MIAN & ORS. Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 25/09/1997 BENCH: G.N. RAY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
WITH
CRIMINAL APPEAL NO. 198 OF 1982
IN THE MATTER OF ;
J U D G M E N T
PATTANAIK. J.
Both these appeals arise out of one sessions trial,
Sessions Trial No. 125 of 1975 which was disposed of by the
learned Additional Sessions Judge, Darbhanga on 30th March,
1978. By the said judgment the accused persons were
convicted under Section 302/149 and were sentenced to
imprisonment for life. Twenty seven of the accused persons
were convicted under Section 147 but no separate sentence
was awarded. Rest of the accused persons were convicted
under Section 147 but no separate sentence was awarded. Rest
of the accused persons were convicted under Section 148 IPC
but no separate sentence was awarded. Accused Dukhmochan
pandey, Sarbnarain Mishra, Upendra Pandey, Sanjam Pandey,
Jainandan Mishra, Kapileshwar Mandal, Bhuvneshwar Mandal,
Janak Das, Uttam Pandey, Tapeshwar Pandey, kameshwar Pandey
and Jiwachh Mishra were convicted under Section 302/34 and
were sentenced to imprisonment for life. Then accused
dukhmochan Pandey, Srabarnarain Mishra, Nawal Kishore
Pandey, Shiv Thakur, Jogendra Narain Pandey, Mahendra Narain
Pandey, Shiv Shekhar Pandey, Saukhilal Yadav, Amirilal
Yadav, Sukhram Mishra, Jainandan Mishra, Bamchandra pandey
and Ramchandra Sharma were convicted under Section 302/34
and were sentenced to undergo rigorous imprisonment for
life. In other words while all the accused persons were
convicted under Section 302/149, they were also convicted in
two groups under section 302/34, one group for causing
murder of Razaullah and the other group for causing the
murder of Ahmad Shah. After accused Jiwachh Mishra was
convicted under Section 324 and were sentenced to undergo
imprisonment for 2 years and accused Upendra Pandey, Sanjam
pandey, kapileshwar Mandal, Jogeshwar Mandal, Aghanoo Mandal
and Janak Das were undergo imprisonment for one year. In all
there were 47 accused persons. On appeal, the Division Bench
of the Patna High Court by Judgment dated 11th of December,
1981 acquitted the accused persons of the charge under
Section 302/149 passed by the learned Additional Sessions
Judge and sentence passed thereunder was upheld. The
conviction of different accused persons under Sections 148
was upheld and sentence for three years in respect of the
same accused persons was awarded.. The conviction of 27
accused persons was awarded. The conviction of 27 accused
persons under Section 147 was upheld and sentence of
imprisonment for two years was awarded by the High Court.
Similarly, the conviction of the accused persons under
Section 447 as well as under Sections 323 IPC of the
different accused persons was upheld but the High Court did
not pass any separate sentence under these heads. Those
accused persons whose conviction had been have preferred
Criminal Appeal No. 197 of 1982 are those whose conviction
under Section 147 has been upheld by the High Court.
Prosecution case in nutshell is that a dispute arose
when informant Kapileshwar Pandey sent labourers to his
field for transplanting paddy seeds. On 25.7.1974 during
morning hours while labourers of Kapileshwar Pandey
numbering about 20 were transplanting paddy seeds on the
field and asked the labourers to stop their work.
Kapileshwar Pandey, PW-18 objected to such high handed
action of the mob whereupon accused Uttam Pandey and Upendra
Pandey directed the mob to kill the labourers. Soon
thereafter accused Dukhmochan Pandey and Sarbnarain Mishra
fired from their respective guns as a result of which
Razaullah and Ahmed Shah, who were on the field fell down.
The informant PW-18 being terribly frigtened ran away to the
nearby Janera field and took shelter keeping himself out of
the sight of the assailants. He could see the various
attacks of different attacks of different accused persons on
the laborers who were on the field. While indiscriminating
assault on the laborers was going on somebody cried out that
Magistrate with the police has arrived . The accused persons
hearing such call ran from the place of occurrence. PW-18
who had taken shelter in the nearby janera field then came
out and went upon the field where he found two deceased
lying injured. Immediately after PW-18’S arrival on the
field PWs the magistrate and the armed forces. The informant
PW- 18 wrote a detailed account of the incident and gave the
same to the magistrate, PW-25. It may be stated here that on
account of some armed forces were camping in the village but
on the relevant date of occurrence they were not at the
place of occurrence but arrived there soon after coming to
know of the incident. PW-6, the village Chowkidar being
aware of the tension on the field reported the same to the
Hawaldar PW-21 and PW-21 directed the chowkidar to inform at
the police station. Pursuant to the aforesaid direction, PW-
6 at arrived at the police station at about 11.30 a.m. and
gave a report to the officer in-charge, PW–24 who made a
station dirary entry No. 458. The said PW-24 after making
the station diary entry left for the village and reached the
place of occurance at 3 p.m. It is at that point of time the
written report given by PW-18 to the magistrate was handed
over to him which was treated as the First Information
Report and thereafter he took up the investigation. He made
the inquest over the two dead bodies and then sent the dead
bodies for post mortem examination. In course of
investigation he had also made some seizure, but later on
under the order of the supervising authority, PW-26 took
over the investigation from him and said PW-26 after
completion of investigation submitted the charge-sheet. The
accused persons were committed to the Court of Sessions and
stood their trial. The defence put forward by the accused
persons was one of denial. The prosecution examined 32
witnesses in all of whom PWs 8,9,11,14 and 15 were injured
in course of the occurrence. PWs 7,9 and 10 are the seizure
witnesses. PW-19 is the Deputy Collector who had been
deputed to watch post-mortem conducted on the deceased. PW-
32 is the doctor who conducted the post-mortem examination.
PW-22 established the fact that under the order of the
supervising authority investigation was transferred from PW-
24 to PW-26. PW-25 is the magistrate and PWs- 27,28 and 29
are the members of the armed force who were in the village
camping. The learned Sessions Judge on a through scrutiny of
the prosecution evidence came to hold that the prosecution
has been able to prove the charges against the accused
persons beyond reasonable doubt. On appeal, the high Court
re appreciated the entire evidence on record. On such re-
appreciation the High Court came to the conclusion that PW-
18 was there at the scene of occurrence and had come to the
field being accompanied by Razaullah. Looking to the F.I.R.
which was stated to have been written on the scene of
occurrence and was later handed over to the investigating
officer, the High Court came to the conclusion that the
prosecution story that F.I.R. was written on the place of
occurrence itself is obviously incorrect. But merely on that
score the High Court did not agree with the submission of
the accused persons that the entire case is a concocted one.
Thereupon, the court scrutinized the evidence of the eye-
witnesses and ultimately came to hold that prosecution case
as unfolded through those witnesses implicating the accused
persons in the commission of two murders must be held to
have been established beyond reasonable doubt. In coming to
the aforesaid conclusion apart from holding that the occular
statement of the eye-witnesses corroborates each other,
court also came to the conclusion that the medical evidence
corroborates the prosecution case. An argument advanced on
behalf of the accused persons that the prosecution party was
the aggressor and came upon the field to dispossess one of
the accused persons Sanjam Pandey was rejected by the High
Court. According to the High Court a well organized mob
fully armed with various weapons indulged in several attacks
including gun shots which ultimately resulted in the death
of two persons and several other members of the prosecution
party were injured. The High Court, however, on scrutiny of
the evidence on record came to hold that the object of the
unlawful assembly being to stop the laborers from
transplanting paddy seeds on the field in question, the
conviction under Section 302/149 cannot be upheld and
accordingly the said conviction and sentence passed
thereunder was set aside. But as stated earlier the
conviction on other counts was maintained.
Mr. U.R. Lalit, the learned senior counsel appearing
for the appellants in Criminal Appeal No. 197 of 1982
contended that the star witness of the prosecution is
Kapileshwar Pandey, PW-18 and his evidence is unbelievable
and shaky and could not be relied upon. So far as the other
eye-witnesses are concerned according to Mr. lalit they have
merely repeated the incident in a parrot like manner and the
very fact that each of them have mentioned the name of the
accused persons in the same chronology is enough to hold
that they are the tutored witnesses and as such no reliance
can be placed on them. The further argument advanced by Mr.
Lalit is that if two of the appellants had gun with them and
both of them simultaneously fired the gun as stated by the
prosecution witnesses but they have not been able to
indicate as to whose gun shot hit which deceased, the
conviction of these appellants dividing in two groups and
making each member responsible for death of one of the
deceased is wholly unsustainable. According to Mr. Lalit the
delayed examination of the prosecution witnesses under
Section 161 Cr. P.C., the finding that the F.I.R. was not
written at the place of occurrence as alleged by PW-18, the
number of injuries on the deceased do not commensurate with
the number of accused persons alleged to have assaulted the
deceased, all taken together creates sufficient doubt in the
prosecution case, and therefore, the accused persons are
entitled to get the benefit of doubt. Mr. Lalit also urged
that the charge under Section 149 having failed and the
object of the assembly being to desist the laborers
transplanting paddy seeds, unless and until it is
established that the assailants developed a common intention
at the spot of occurrence to kill the two persons the
conviction under Section 302/34 cannot be sustained.
According to the learned counsel it is, therefore, necessary
for the prosecution to establish that the so called attacks
by each of the accused persons was with intention to kill so
that it can be concluded therefrom that a common intention
to kill the deceased developed at the spur of the moment.
Judged from this angle if some of the accused persons
assaulted the deceased after they fell down after receiving
the gun shot, by means of Lathi not on vital part of the
body of the deceased but on the leg or some other part where
minor injuries have been found by the doctor then such of
the accused persons cannot be convicted by taking recourse
to Section 34 with the main offence under Section 302 IPC.
The learned counsel had also urged that the gun shot
injuries are not on the vital part of the body, and
therefore, the persons who have been alleged to have given
the shot injuries can’t be held liable for the offence of
murder.
The learned counsel of the appellants in Criminal
Appeal No. 198 of 1982 also attacked the impugned judgment
on all the grounds urged by Mr. Lalit appearing for the
appellants in Criminals Appeal No. 197 of 1982 and in
addition contended that the appellants in Criminal Appeal
No. 198 of 1982 have been found to be mere present with the
mob, armed with lathies and have not committed any attack,
consequently their conviction under Section 147 IPC and
sentence passed thereunder is not sustainable in law.
Mr. Sinha, the learned senior counsel for the
respondent on the other hand submitted that there are as
many as 12 witnesses examined on the behalf of the
prosecution of whom PWs 8,9,11,14 and 15 were injured in
course of the incident and when two courts of fact have
already scrutinized the evidence and have come to the
conclusion that the prosecution case has been proved beyond
reasonable doubt it would not be appropriate for this Court
to re-appreciate the evidence and come to its own
conclusion. The learned counsel further contended that no
doubt it is true that initial object of the unlawful
assembly was to desist the persons on the field from
ploughing or from undertaking any agricultural operation.
But at the spot when PW-1 gave a lalkar to finish up the
Mukhiya and others. a common intention developed at the spur
of the moment. Consequently, all those who participated in
the overt attack which ultimately resulted in the death of
two persons Razaullah and Ahmed Shah would be liable under
Section 302/34 and the High Court, therefore, was fully
justified in convicting them thereunder and sentencing them
to imprisonment for life. According to the learned counsel
the fact that a common intention developed at the spur of
the moment is established from the evidence of PWs 1,2,8,9
and 14. Commenting upon the argument of Mr. Lalit that
kapileshwar Pandey being the main target it is difficult to
believe that kapileshwar pandey Kept himself hidden in the
nearby Janera field and yet no accused person followed him,
the learned counsel for the State urged that when
kapileshwar pandey found himself to be the main target of
attack it is but natural for him to run away form the spot
and hide himself at a place available in the vicinity and
accordingly Kapileshwar Pandey did hide himself in the
nearby Janera field. Such conduct on the part of kapileshwar
pandey did hide himself in the nearby Janera field. Such
conduct on the part of kapileshwar is only most probable
conduct of Amman under the circumstances and the High Court
was justified in believing the evidence of said Kapileshwar.
So far as the argument advanced on account of delay in
recording the statements of witnesses by the investigating
officer the learned counsel urged that the materials on
record fully establish that the initial investigating
officer was partial and was not conducting the investigation
fairly on account of which the investigation was transferred
from him to some other man under the orders of the
supervising authority and under such circumstances the
alleged delay in recording the statement of the witnesses
under Section 161 Cr.P.C will not vitiate the prosecution
case. The learned counsel also urged that no doubt the
accused persons have been acquitted of the charge under
Section 302/149 and no appeal has been preferred therefrom
but when a mob of 200 persons came armed with deadly weapons
and several members of the mobs started attacking the
persons on the field the second part of Section 149 gets
attracted, and therefore, the accused persons will be
convicted thereunder. Since no prejudice is caused to the
accused persons and since they are initially charged under
section 302/149 it would be within the powers of this Court
to convict them under Section 302/149 even in the absence of
an appeal against the order of acquittal of
the said charge. The rival contentions require a careful
examination of the materials on record.
At the outset it must be stated that ordinarily this
Court under Articles 136 of the constitution does not re-
appreciate the evidence and the conclusions of the High
Court on a question Mr. U.R. Lalit, the learned senior
counsel appearing for the appellants in Criminal Appeal No.
197 of 1982 contended that the star witness of the
prosecution is kapileshwar Pandey, PW-18 and his evidence is
unbelievable and shaky and could not be relied upon. So far
as the other eye-witnesses are concerned according to Mr.
lalit they have merely repeated the incident in a parrot
like manner and the very fact that each of them have
mentioned the name of the accused persons in the same
chronology is enough to hold that they are the tutored
witnesses and as such no reliance can be placed on them. The
further argument advanced by Mr. Lalit is that if two of the
appellants had gun with them and both of them simultaneously
fired the gun as stated by the prosecution witnesses but
they have not been able to indicate as to whose gun shot hit
which deceased, the conviction of these appellants dividing
in two groups and making each member responsible for death
of one of the deceased is wholly unsustainable. According to
Mr. Lalit the delayed examination of the prosecution
witnesses under Section 161 Cr. P.C., the finding that the
F.I.R. was not written at the place of occurrence as alleged
by PW-18, the number of injuries on the deceased do not
commensurate with the number of accused persons alleged to
have assaulted the deceased, all taken together creates
sufficient doubt in the prosecution case, and therefore, the
accused persons are entitled to get the benefit of doubt.
Mr. Lalit also urged that the charge under Section 149
having failed and the object of the assembly being to desist
the labourers transplanting paddy seeds, unless and until it
is established that the assailants developed a common
intention at the spot of occurrence to kill the two persons
the conviction under Section 302/34 cannot be sustained.
According to the learned counsel it is, therefore, necessary
for the prosecution to establish that the so called attacks
by each of the accused persons was with intention to kill so
that it can be concluded therefrom that a common intention
to kill the deceased developed at the spur of the moment.
Judged from this angle if some of the accused persons
assaulted the deceased after they fell down after receiving
the gun shot, by means of Lalit not on vital part of the
body of the deceased but on the leg or some other part where
minor injuries have been found by the doctor then such of
the accused persons cannot be convicted by taking recourse
to Section 34 with the main offence under Section 302 IPC.
The learned counsel had also urged that the gun shot
injuries are not on the vital part of the body, and
therefore, the persons who have been alleged to have given
the shot injuries can’t be held liable for the offence of
murder.
The learned counsel of the appellants in Criminal
Appeal No. 198 of 1982 also attacked the impugned judgment
on all the grounds urged by Mr. Lalit appearing for the
appellants in Criminals Appeal No. 197 of 1982 and in
addition contended that the appellants in Criminal Appeal
No. 198 of 1982 have been found to be mere present with the
mob, armed with lathies and have not committed any attack,
consequently their conviction under Section 147 IPC and
sentence passed thereunder is not sustainable in law.
Mr. Sinha, the learned senior counsel for the
respondent on the other hand submitted that there are as
many as 12 witnesses examined on the behalf of the
prosecution of whom PWs 8,9,11,14 and 15 were injured in
course of the incident and when two courts of fact have
already scrutinized the evidence and have come to the
conclusion that the prosecution case has been proved beyond
reasonable doubt it would not be appropriate for this Court
to re-appreciate the evidence and come to its own
conclusion. The learned counsel further contended that no
doubt it is true that initial object of the unlawful
assembly was to desist the persons on the field from
ploughing or from undertaking any agricultural operation.
But at the spot when PW-1 gave a lalkar to finish up the
Mukhiya and others. a common intention developed at the spur
of the moment. Consequently, all those who participated in
the overt attack which ultimately resulted in the death of
two persons razaullah and Ahmed Shah would be liable under
Section 302/34 and the High Court, therefore, was fully
justified in convicting them thereunder and sentencing them
to imprisonment for life. According to the learned counsel
the fact that a common intention developed at the spur of
the moment is established from the evidence of PWs 1,2,8,9
and 14. Commenting upon the argument of Mr. Lalit that
kapileshwar Pandey being the main target it is difficult to
believe that kapileshwar pandey Kept himself hidden in the
nearby Janera field and yet no accused person followed him,
the learned counsel for the State urged that when
kapileshwar pandey found himself to be the main target of
attack it is but natural for him to run away form the spot
and hide himself at a place available in the vicinity and
accordingly Kapileshwar Pandey did hide himself in the
nearby Janera field. Such conduct on the part of kapileshwar
pandey did hide himself in the nearby Janera field. Such
conduct on the part of kapileshwar is only most problem
conduct of Amman under the circumstances and the High Court
was justified in believing the evidence of said Kapileshwar.
So far as the argument advanced on account of delay in
recording the statements of witnesses by the investigating
officer the learned counsel urged that the materials on
record fully establish that the initial investigating
officer was partial and was not conducting the investigation
fairly on account of which the investigation was transferred
from him to some other man under the orders of the
supervising authority and under such circumstances the
alleged delay in recording the statement of the witnesses
under Section 161 Cr.P.C will not vitiate the prosecution
case. The learned counsel also urged that no doubt the
accused persons have been acquitted of the charge under
Section 302/149 and no appeal has been preferred therefrom
but when a mob of 200 persons came armed with deadly weapons
and several members of the mobs started attacking the
persons on the field the second part of Section 149 gets
attracted, and therefore, the accused persons will be
convicted thereunder. Since no prejudice is caused to the
accused persons and since they are initially charged under
section 302/149 it would be within the powers of this Court
to convict them under Section 302/149 even in the absence of
an appeal against the order of acquittal of
the said charge. The rival contentions require a careful
examination of the materials on record.
At the outset it must be stated that ordinarily this
Court under Articles 136 of the constitution does not re-
appreciate the evidence and the conclusions of the High
Court on a question of fact or on appreciation of evidence
are considered to be final. But at the same time there is no
bar for this court to re-appreciate the evidence if the
interest of justice so demands. In the case in hand as many
as 47 people out of a mob of 200 persons have been charged
and ultimately have been convicted under different sections
of the penal code and the conviction is based upon the
ocular statement. In that view of the matter we thought it
appropriate to examine the evidence ourselves for coming to
a conclusion as to whether there has been any miscarriage of
justice by an apparent erroneous appropriate to examine the
evidence ourselves for coming to a conclusion as to whether
there has been any miscarriage of justice by an apparent
erroneous appreciation of the ocular evidence. From the
aforesaid stand point the evidence in the case may be
scrutinized. As it appears, PW-18 is the stat witness in
this case. Since it is he who could see the incident from
the beginning to the end after hiding himself in the nearby
Janera field and was the first person to arrive on the spot
after the accused persons left the field when somebody cried
that the Magistrate is coming with the force. PW-18,
Kapileshwar was Mukhiya of the village having been so
elected on 5.7.1962. According to his evidence he went to
the field accompanied by deceased Razaullah at 11a.m. on
25.07.1974 and while the labourers started working on the
field he sat on the southern corner of the field. At 12 noon
a mob of about 200 persons armed with Gun, Bhala, Gadasa,
Bow-arrow and Lathi reached the filed of whom he could see
Dukhmochan Pandey and Sarbnarain holding guns in their
hands; Soukhilal Yadav, Amirilal Yadav, Sukhram Mishra,
Jainandan, Ram Chander Pandey, Ram Chandra Sharma,
Tapeshwar, Kameshwar Pandey and Jiwachch Mishra had Bhalas
in their hands; Mawal Kishore Pandey, Manendra Narian and
Shiv Shekhar Pandey had Gandasa in their hands. Kalimuddin
Mian, Suleman Mian, Shamsul Mian, Chandeshwar Thakur, Horila
kapar and Ram preeti Mishra had gone with arrows in their
hands. He could identify all the accused persons who stood
charged by name and he knew their place of residence. As
soon as the mob reached the place Uttam Pandey and Upendra
Pandey told the labourers to stop the work. The said
witness, PW-18 and the labourers said that the work will not
be stopped and on this uttam Pandey and Upendra Pandey gave
the order to finish all the persons belonging to the party
of PW-18. On such order of Uttam Pandey and Upendra pandey,
Dukhmochan Pandey and Sarbnarain fired their guns which hit
Razaullah and Ahmed Shah and both of them fell down. PW-18
ran away to the nearby Janera field and keeping himself out
of the sight of the accused persons he could see what was
happening to the labourers engaged by him for carrying out
the transplantation operation. Saukhilal, Amirilal, Sukhram
jainandan, Ram Chandra Pandey and Ram Chandra Sharma
assaulted Razaullah with Bhala; Shivnarain Thakur and Nawal
Kishore Thakur assaulted razaullah with Gadasa on his neck;
and Yogendra Narain Pandey, Mahendra Narain Pandey and shiv
Shekar assaulted Razaullah with Gandas. After Razaullah fell
down Tapeshwar Pandey, Kameshwar and Jiwachch assaulted
Ahmed Shah with Bhala Jugeshwar Mandal, Kapileshwar Mandal,
Aghnu Mandal, Janak Das, Sanvam Pandey and Upendera Pandey
assaulted him with lathi. Uttam Pandey by sitting on the
person of Ahmed with Bhala. Kapileshwar Mandal, Jugeshwar
Mandal, Aghnu Mandal, janak Das, Sanyam Pandey and Upendra
Pandey assaulted Bibi Julekha Khatoon and SK. Hadia with
lathi. Kalimuddin Mian, Suleman Mian, Shamsul Mian, Horil
Kapar Chandeshwar Thakur and Rampreet Mishra were shooting
arrows. Mr. U.R. Lalit , the learned senior counsel
contented that this PW-18 admittedly being inimical with the
acused persons his evidence requires a stricter scrutiny for
being accepted. According to the learned counsel the Mukhiya
was the main target and rest of the injured persons were
merely labourers of Mukhiya who were busy in transplantation
operation on the field. Mukhiya could not have escaped from
the clutches of the accused persons who according to the
prosecution case hid himself when a mob of 200 persons came
and then again said Mukhiya could not have seen the entire
occurrence in a sitting position. The learned counsel also
urged that even if it is assumed that he could see the
incident from the Janmera field he could not have been able
to narrate the incident in a graphic manner in which he
narrated. It is in this connection, Mr. Lalit also urged
that the High Court itself on consideration of the entire
material has come to a finding that this witness claimed to
have written the FIR at the spot itself. But a very look at
the FIR at the spot itself . But a very look at the FIR
makes the story impossible and obviously therefore the FIR
had not been written on the field. This finding, according
to the learned counsel, lends corroboration to the
submission that PW-18 has not witnessed the occurrence and
came to the place much later and handed over a written FIR
to the Magistrate which was later on given to the police.
The counsel also urged that a reading of the evidence of PW-
18 would indicate that he was neither on the field at the
time of occurrence nor has seen the occurrence but has been
able to rope in the accused persons by giving their names in
the written FIR. We have carefully scrutinized the evidence
of PW -18 and considered the comments of Mr. Lalit
impeaching his credibility but having examined the evidence
of said PW-18 we are not in a position to hold him to be an
unreliable witness neither we are in a position to hold that
Kapileshwar had not seen the occurrence and has merely
included the names of the accused persons in the written
FIR. No doubt there has been certain embellishments and the
High Court, therefore, was justified in coming to a
conclusion that the FIR was not written at the place of
occurrence as stated by PW-18 . But on that basis the entire
prosecution case cannot be thrown out particularly when out
of 12 witnesses examined on behalf of the prosecution 5 are
the injured witnesses PWs 8,9,11,14 and 15. These injured
witnesses corroborate the evidence of PW-18 with regard to
the manner of assault, the place off assault, weapons used
by different accused persons, the persons, the persons who
assaulted the two deceased persons the arrival of the
Magistrate soon after the occurrence, the arrival of the
investigating officer at the field, handing over of FIR by
kapileshwar to the magistrate. The general comment of Mr.
Lalit in respect of these injured witnesses is that they
repeated in a parrot like manner as to what have been stated
by kapileshwar, PW-18. We are unable to discard their
testimony on this ground particularly when the learned
Sessions Judge as well as the High court after thorough
scrutiny of their evidence have held them to be reliable
corroborating the evidence of star witness PW-18. In our
considered opinion, therefore, the prosecution story as
unfolded through the evidence of PWs 8,9,11,14,15 and 18
cannot be doubted. Mr. Lalit in course of his argument no
doubt had contended that the witnesses were examined by the
police under Section 161 Cr.P.C. after 5 or 6 days of the
incident and no satisfactory explanation for the delay in
recording their statement has been put forward by the
prosecution. Though delayed examination of witnesses by the
investigating agency in certain cases my create a doubt in
the mind of a court for accepting the testimony of the
witnesses, but in the case in hand it is apparent that the
initialinvestigating officer has not been fair enough in
investigating into the offence as a result of which under
the orders of the supervising officer the ivestigation was
transferred to another officer who after taking charge of
the investigation recorded the statement of these witnesses.
Such explanation for delay in recording the statement of
vital witnesses has been held to be a sufficient explanation
and we do not find any justifiable ground to interfere with
that conclusion. In this view of the matter the next
question that arises for consideration is whether in
accordance with the prosecution case itself the common
object of the mob being to desist the labourers from
carriving on the transplantation operation on the field and
not to commit murder of any member of the prosecution party
particularly the deceased Razaullah and Ahmed Shah and the
charge under Section 302/149 having failed, can it be
concluded that some of accused persons developed a common
intention at the spot to kill two deceased persons and in
furtherance of the said common intention they went on
assaulting the deceased persons who ultimately succumbed to
the injuries they sustained. From the prosecution evidence
there cannot be in dispute and in fact the courts below have
come to the finding that a mob of 200 persons came armed
with different weapons with object of preventing the
prosecution party for, carrying on the transplantation
operation on the field. The existence of a common intention
between the participants in a crime is an essential element
for attracting Section 34 of the Indian Penal Code and such
intention could be formed previously or on the spot during
the progress of the crime. Usually it implies a pre-arranged
plan which in turn pre-supposes a prior meeting of mind. But
in a given case such common intention which developed at the
spur of the moment is different from a similar intention
actuated a number of persons at the same time, and
therefore, the said distinction must be borne in mind which
would be relevant in deciding whether Section 34 of the
Indian Penal Code can be applied to all those who might have
made some over attack on the spur of the moment. (See kripal
and others vs. State of Uttar Pradesh. A.I.R. 1954 S.C. 706
Pandurang, Tukia and Bhillia vs. The State of Hyderabad,
1955(1) S.C.R. 1083 and Mohan Singh vs. State of Punjab,
1962 supp(3) S.C.R. 848) . The distinction between a common
intention and a similar intention may be fine, but is
nonetheless a real one and if overlooked, may lead to
miscarriage of justice. In the case of Hardev Singh and
another vs. The State of Punjab, (1975) 3 S.C.C. 731., the
original target of attack was one Kewal Singh who received
only some simple injuries having been caused to him by
accused Harijinder Singh and Piara Singh. But in course of
the incident accused Hardev Singh gave a kirpan blow on the
head of Tej kaur and question of consideration was whether
all the accused persons can be held guilty for the offence
of murder of said Tej Kaur with the aid of Section 34 of the
Indian Penal Code. This Court held that the assault on Tej
Kaur by accused Hardev Singh was his individual act and
consequently other accused persons cannot be held guilty of
the offence under Section 302/34 for the murder of said Tej
Kaur. The question, whether all the persons who made some
overt attack as a result of which some members of the
prosecution party died shared the common intention of the
murder of such persons would be question fact and it is
difficult to give any direct proof of existence of such
common intention and can only be inferred from
circumstances. in other words, unless such common intention
is established as a matter of necessary inference from the
proved circumstances of the case then the accused persons
could be individually liable for their respective overt
attacks and not for the act done by any other person. The
mere fact that the accused persons were armed with some
weapons itself would not be sufficient to attribute common
intention of all of them to commit murder particularly when
in the case in hand the prosecution case itself is that the
accused persons came to the field with the sole object of
desisting the labourers from continuing with the
transplantation operation. Mr. Sinha, learned senior counsel
appearing for the respondent had urged that every person is
presumed to know the natural consequences of his own act and
therefore pursuance to the call being given to kill the
persons of Mukhiya whereafter the accused appellants having
assaulted the two deceased persons with different weapons in
their hands, it must be held that they had developed the
common intention of murdering Ahmed Shah and Razaullah and
as such their conviction under Section 302/34 is us wholly
justified. As has been stated earlier whether all those who
are said to have been armed with some weapons and alleged to
have assaulted the deceased, shared the common intention of
murdering deceased has to be found out from the facts and
circumstances established and found. In other words, it
would be necessary to examine as to the weapon of assault,
on the part of the body on which such assault was committed,
the medical evidence indicating the nature of injuries
caused thereby and the ultimate cause of death of the two
persons.
It may be stated that for causing murder of Ahmed Shah
accused Dukhmochan Pandey, Uttam Pandey, Kameshwar Pandey,
Jibachh Mishra, Sarabnarain Mishra, Jakan Das, Sanjam
Pandey, Upendra Narain Pandey, Tapeshwar Pandey, Jainandan
Mishra, Jugeshwar Mandal, Kapileshwar Mandal have been
convicted under Section 302/34. Witnesses have established
that Dukhmochan Pandey was holding a gun, Uttam Pandey was
holding a Lathi, Kaeshwar Pandey was holding Bhala, Jibaccha
Mishra was holding a Bhala, Sarabnarian Mishra was holding a
Gun, Jakan Das was holding Lathi, Sanjam Pandey holding a
Lathi, Upendra Narain Pandey was holding a Lathi, Tapeshwar
Pandey was holding a Bhala, Jainandan Mishra was holding a
Bhala, Jugeshwar Mandal was holding Lathi and Kapileshwar
Mandal was holding a Lathi. The Doctor, who conducted the
post-mortem examination on the dead body of Ahmed Shah, PW-
32 found the following injuries on him:
“On the same date at 4 p.m. I held P.M. examination on
the body of ahmed Shah S/o. Hakim Shah of the same and found
as follows:
1. Perforating injury 3/4″ x 1/2″
chest cavity almost transverse in
the second right intercostal space
anteriorly.
2. Performating injury 2″x1/2″ x
chest cavity almost transverse in
the foweth right intercosteral
space anteriorly.
3. Lacerated injury 1/4″ long
across the right lip.
4. Both the incisors and one canine
teeth in I got lower jaw broken.
5. Two teeth on upper left jaw and
four teeth on right upper jaw
broken.(Two incisors, one canine
and one premolar).
6. One abrasion 1/2″ x 1/2″ on
right shoulder.
7. One abrasion 1″x 1/2″ on chest
right side, upper part.
8. One abrasion 1″x1/4″ on mid of
back right side.
9. Second and fourth ribs were cut
anteriorly. They were spounder to
injuries Nos. 1 and 2. Intercostal
muscles abo cut. Pheera cut 2
inches long at place on right side
anteriorly. There was a cut in the
upper lobe of the right lung,
anteriorly …..3″x 1″x 1″. The
middle lobe had abodone cut 3/4″
x1″ anteriorly. Chest cavity was
full of blood and blood cloth,
almost faint. Both chambers of
heart were empty.”
According to the doctor injuries Nos. 1 and 2 were
vital caused by some sharp pointed weapon and death is due
to shock, haemorrhage and injuries to vital. organs. From
the nature of injuries sustained by the deceased it can
reasonably be said that the two fatal injuries. Nos. 1 and 2
could be the result of attack by Bhala. The lacerated injury
across the right lip breaking of both the incisors and one
canine teeth in right jaw, breaking of two teeth on upper
left jaw and four teeth on right upper jaw, abrasion found
on right shoulder, abrasion found on right side chest and
abrasion found on the mid of back right side could be caused
by Lathi, From the nature of the injuries found on the dead
body of deceased Ahmed Shah and the nature of the weapons of
assault used by accused holding lathies namely accused uttam
Pandey, Janak Das, Saniam Pandey, Upendra Narain Pandey,
Janak Das, Saniam Pandey, Upendra Narain Pandey, Jogeshwar
Mandal and Kapileshwar Mandal. and the part of the body of
Ahmed Shah on which they assaulted, it may not be possible
to hold that they shared common intention of causing murder
of Ahmed Shah. For an inference of common intention being
drawn for the purposes of Section 34, the evidence and the
circumstances of the case should establish, without any room
for doubt, that a meeting of minds and a fusion of ideas had
taken place amongst different accused and in prosecution of
it the overt acts of the accused persons flowed out. As has
been stated earlier the prosecution case itself is, they
came to prevent the labourers from continuing the
transplantation operation but at the spur of the moment on
account of certain lalkara being given by some of the
accused persons. Persons armed with weapons started
assaulting the deceased. But from mere assault even not on
vital parts of the body which ultimately resulted in causing
some minor injuries, it may not be sufficient to establish
beyond reasonable doubt that they also shared a common
intention of causing murder of deceased Ahmed Shah. In this
view of the matter, the conviction of appellants Uttam
Pandey, Janak Das, Sanjam Pandey, Upendra Narain Pandey,
Jaogeshwar Mandal and Kapileshwar Mandal under Section
302/34 IPC for causing murder of deceased Ahmed Shah cannot
be sustained and the same is set aside. instead they are
convicted under Section 325/34 IPC. Sentenced to undergo
rigorous imprisonment for five years. It is no doubt true
that there is no gun shot injury on him but it is Dukhmochan
Pandey and Sarbnarain Mishra who on being ordered by Uttam
Pandey fired the guns in their hands first, whereafter all
others assaulted with the respective weapons in their hands.
That being the being the position, Dukhmochan Pandey and
Sarbnarain Mishra also could be held liable under Section
302/34 and have been rightly convicted by the courts below.
For causing death of Razaullah the following 12 accused
persons have been convicted under Section 302/34 IPC:
1. Dukhmochan Pandey A-1
2. Shiv Narain Thakur A-3
3. Shivshekhar Pandey A-6
4. Sarabnarain Mishra A-8
5. Sukhram Mishra A-10
6. Saukhilal Yadav A-15
7. Naval Kishore Pandey A-17
8. Jogendra Narain Pandey A-18
9. Mahendra Narain Pandey A-21
10. Ramchandra Pandey A-25
11. Jainandan Mishra A-35
12. Amiri Lal Yadav A-46″
Of these accused persons Dukhmochan Pandey was holding
a Gun, Shiv Narain Thakur was holding a Garasa, Shivshekhar
Pandey was holding a Garasa, Sarabnarain Mishra was holding
a Gun, Sukhram Mishra was holding a Bhala, Saukhilal Yadav
was holding a Bhala, Saukhilal yadav was holding a Bhala,
Naval Kishore pandey was holding a garasa, Jogendra Narain
Pandey was holding a Garasa. Mahendra Narain Pandey was
holding a Garasa. Mahendra Narain Pandey was holding a
Garasa. Ramchandra pandey was holding a Bhala, Jainandan
mishra was holding a Bhala. Doctor, PW-32, found the
following injuries on the dead body of Razaullah:
“1. Incised injury 8″x1/2”, some
what elliptical in shape on lower
part of back of head, just on the
lower part of the accipebal bone.
2. Punctured injury 3/4″ x 1/4″ x
4/4″ and 1″ below the lobule of the
left ear.
3. Perforating injury antori …..
third left inter costal
space…………………
downwards medially.
4. Perforating injury 1/2″ x 1/4″ x
abdominal cavity on men, left side,
upper part.
5. Perforating injury 1/2″ x 1/4″ x
abdominal cavity on abdomen, left
side, front aspect.
6. Oblique punctured injury 2″x
1/4″ x 1″ on right arm anteriorly.
7. abrasion 1/2″ x 1/2′ below right
eye.
8. Incised 4″ x 1/2″ x boale on
left knee.
9. Compound fracture of tibia and
fibula, lower third, left leg.
10. Almost round hole 1/2″ x 1/4″
approximately x bone with lacerated
markings on left leg lower
part(would of entrance).
11. Lacerated injury 1″ x 1/2″ on
the left foot medial malicoli wound
of exit.
Probe was made to enter through
injury No. 11,
if came out through injury No. 11.
Lower part of fibia and fibula were
found cross bed on opening the
injured part. Injury No. 10 was
situated anteriorly on the lower
part of the left leg.
12. Lacerated injury 1/2″ x 1/2″ 1″
on right leg, lower part, medially.
13. Punctured injury 1/2″ x 1/8 x
1/4″ on right ankle joint
anteriorly.
14. Punctured injury 3/4″ x 1/4″ x
bone on right foot anteriorly.
15. Punctured injury 3/4″ x 1/6″ on
sole of the left foot.
Third Ribon left side was found cut
anteriorly. intercostal muscles of
the third left space was also…..
dimension as per injury No. 3
Pleura also cut for 2″ in length
anteriorly. Chest clot blood and
blood clot, approximately a pland
of the left lung cut 3″ x 1/2″ x 1″
anteriorly. Heart, chambers were
empty, each, situated anteriorly
and another laterally. Stomach was
performed in not tolateral surface
along the greater curvature size
1/6′ x 1/6′ x stomach cavity. Some
gruel was found inside the stomach
and a little out of the stomach.
Spleen was also punctured, about
1/6″ in diameter on the front
aspect depth being 1/4″. Abdominal
cavity had also little ceslection
of blood and blood clotal.”
All these injuries according to doctor were ante-mortem
in nature and injuries No. 1,3,4 and 5 were fatal. The
doctor also stated that injuries Nos. 1 and 8 could be
caused by sharp cutting weapon. Injuries No. 9 and 10 and 11
were caused by gunshot. injuries No. 2,3,4,5,6,,12,,13,14
and 15 caused by some sharp pointed weapon and death was due
to shock, haemorrhage and injuries on the vital organs. In a
case of murder where it is established by satisfactory
evidence that all the accused were acting in concert and
were associated with each other in causing assault and
multiple injuries were found on the deceased it leaves no
room for doubt that all the accused had shared a common
intention to cause death (see Aher Pitha Vaishi and others
vs. State of Gujarat, AIR 1983 SC 599). In view of the
nature of injuries found on the dead body of deceased
Razaullah and the weapons of assault in the hands of the
acccused, it would be difficult to hold that all of them had
not shared the common intention of killing the Razaullah
which developed at the spur of the moment on being ordered
by Uttam Pandey. In fact with deadly weapons in their hands
they mercilessly assaulted deceased Razaullah and as such
their conviction under Section 302/34 is fully justified.
So far as Criminal Appeal No. 198 of 1982 is concerned
the appellants have been convicted under Section 147 IPC and
in view of number of eye-witnesses to the occurrence many of
whom are injured witnesses and those witnesses having been
believed by the learned Sessions Judge as well as by the
High Court and while discussing their evidence in the other
appeal we have also believed their testimony, we see no
infirmity in conviction and sentence passed against the
appellants in this appeal, and therefore, the said appeal is
dismissed.
In the net result, therefore, the conviction of
appellants Uttam Pandey, Janak Das, Sanjam Pandey, Upendra
Narain Pandey, Jogeshwar Mandal and Kapileshwar Mandal under
Section 302/34 IPC for causing murder of Ahmed Shah and the
sentence passed thereunder is set aside, instead they are
convicted under Section 325/34 and they are sentenced to
undergo rigorous imprisonment for five years. The conviction
of other accused persons namely Dukhmochan Pandey, Kameshwar
Pandey, Jibacch Mishra, Sarabnarain Mishra, Tapeshwar Pandey
and Jainandan Mishra under Section 302/34 IPC for causing
murder of Ahmed Shah and the sentence passed thereunder is
affirmed. The conviction of all the 12 accused persons,
namely, Dukhmochan Pandey, Shiv Narain Thakur, Shivshekhar
Pandey, Sarabnarain Mishra, Sukhram Mishra, Saukhilal Yadav,
naval Kishore Pandey, Jogendera Narain Pandey, Mahendra
Narain Pandey, Ramchandra Pandey, Jainandan Mishra and Amiri
Lal yadav under Section 302/34 for causing murder of Sk.
Razaullah and sentence passed thereunder is affirmed. Their
conviction and sentence on other counts remain unaltered.
Criminal Appeal No. 197 of 1982 is partly allowed to the
extent indicated above. The conviction and sentence of the
appellants in Criminal Appeal No. 198 of 1982 is affirmed.
Criminal Appeal No. 198 of 1982 dismissed.
The accused – appellants who are on bail are directed
to surrender to serve the balance period of sentence and in
case they fail to surrender steps may be taken for their
arrest to serve the sentence.