Cr.Appeal No.284 of 1988
With
Cr.Appeal No.285 of 1988
___
(Against the judgment and order dated 23.5.1988 passed by Shri K.M.Toppo, 4 th
Additional Sessions Judge, Saharsa in S.T.No.28 of 1984)
____
1. Ganga Ram Sah
2. Sita Ram Sah
3. Pitambar Sah
4. Jagdish Sah
5. Umesh Prasad Gupta ....Appellants(in Cr.Appeal No.284 of 1988)
Versus
The State of Bihar .....Respondent
With
Ram Chandra Sah …. Appellant (In Cr.Appeal No.285 of 1988)
Versus
The State of Bihar …..Respondent
For the Appellants ….. Mr.Sidharth Prasad, Advocate
(In both the appeals) (Amicus Curiae)
For the Respondent …. Mr. Lala Kailash Bihari Prasad, learned
(in both the appeals) Public Prosecutor
P r e s en t
The Hon’ble Mr.Justice Sudhir Kumar Katriar
The Hon’ble Mr.Justice Samarendra Pratap Singh
SK Katriar & Both Criminal Appeal No.284 of 1988, and Criminal Appeal No.285 of 1988, have
SP Singh,JJ
been preferred against the common judgment and order dated 23.5.1988, passed by
the 4th Additional Sessions Judge, Saharsa, in S.T.No.28 of 1984. In Criminal
Appeal No.284 of 1988, there are five appellants, namely, Ganga Ram Sah, Sita
Ram Sah, Pitambar Sah, Jagdish Sah and Umesh Prasad Bhagat. In Cr.Appeal
No.285 of 1988, there is only one appellant namely Ram Chandra Sah. By common
judgment, all the five appellants in Cr.Appeal No.284 of 1988 have been convicted
for charge under sections 302/149, 147 of the Indian Penal Code. However,
appellant Ganga Ram Sah has additionally been convicted under section 302/109
I.P.C. also, whereas Pitambar Sah and Sitaram Sah have been convicted under
section 323 of the Penal Code. All five appellants have been sentenced to undergo
rigorous imprisonment for life, under section 302/149 and no separate sentence has
been passed for conviction under other counts. The sole appellant Ram Chandra
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Sah in Cr.Appeal No.285 of 1988 has been convicted under section 302 of the
Penal Code and sentenced to under go R.I. for life.
2. The prosecution case, as made out in the fardbeyan of Jogendra Narayan
Sah, the informant, son of late Suraj Sah, resident of Village- Birgaon, Nayatola,
P.S. Mahishi, District Saharsa, recorded by Shri Yogeshwar Singh, Sub Inspector
of Jalai O.P., on 27.6.1983, at 11 A.M., in short, is as follows:
i) The informant Jogendra Narayan Sah stated that three days ago, the cattle of
Ram Chandra Sah, the sole appellant in Cr.Appeal No.285 of 1988, grazed his
paddy, and he complained to villagers about it. He stated that on 27.6.1983, at
about 9 A.M., he showed the grazed field to the Panches in presence of appellant
Ram Chandra Sah. The Panches advised them not to get broiled in altercation. In
the meantime, Sitam Ram Sah (Appellant no.2), who was present there, struck a
lathi blow on the left leg and thigh of the informant’s brother, Bauku Sah. The
Panches intervened and separated both sides, stating that they would take a decision
in respect of dispute shortly. The informant and his brother returned to their house,
whereas Ram Chandra Sah and Sita Ram Sah rushed towards their house. No
sooner the informant reached his house and was standing south west of it, all the
six appellants named above, as well as on Sukhdeo Sah, the father of appellant
nos.4 and 5 of Cr.Appeal No.284 of 1988, variously armed arrived there. The
informant stated that Ram Chandra Sah was armed with gun and others were armed
with lathi. Soon thereafter, Sukhdeo Sah (who was not sent up), and Ganga Sah,
exhorted other accused to assault, whereupon appellant, Ram Chandra Sah,
repeatedly opened fire from his gun killing informant’s brother Ram Udgar Sah at
the spot. He stated that his brother Ram Udgar Sah sustained wounds on his chest,
neck, and mouth. The other accused persons assaulted him as a result of which he
sustained injuries on the right side of head and right hand. The accused persons also
assaulted his brother Uday Chandra Sah with lathi, on account of which he too
sustained injuries on his head and fell on the ground. His brother Uday Chandra
Sah was carried to hospital for treatment.
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ii) The informant raised hulla, on which one Ram Swaroop Yadav, Pappu
Yadav, Sadhu Sah, Dhodhai Sah (P.W.7), Bauku Sah (P.W.2), came and witnessed
the occurrence and saved them from further assault. The informant alleged that the
accused persons committed the offence, as he had chastised them for damaging his
crops.
iii) On the basis of the aforesaid fardbeyan (Ext.5), a formal F.I.R. being
Mahishi P.S.Case No.33 of 1983 was instituted on 27.6.1983, at 6 P.M., which has
been marked Ext.7. The police after investigation submitted charge sheet. The
Magistrate took cognizance of offence and committed the case to the court of
sessions for trial. Charge under section 302 of the Indian Penal Code was framed
against appellant Ram Chandra Sah, and charge under sections 302/109 of the
I.P.C. was framed against appellant Ganga Ram Sah. Charge under section
302/149, 147 and 323 of the I.P.C. were framed against appellants Pitamber Sah,
Sita Ram Sah, Jagdish Sah and Umesh Prasad Gupta. All the accused persons
pleaded not guilty and claimed to be tried.
3. The prosecution examined altogether 15 witnesses in support of its case
whereas the defence examined 8 witnesses. Out of the aforesaid 15 witnesses, Uday
Chandra Sah (P.W.1), Bauku Sah (P.W.2), Anar Devi (P.W.3), wife of deceased
Ram Udgar Sah, Parvati Devi (P.W.4), mother of the deceased, Ful Kumari
(P.W.8), and the informant Yogendra Narayan Sah (P.W.10), are eyewitnesses of
the occurrence. One of the injured, Sabo Devi (P.W.9), did not support the
prosecution case and was declared hostile. Sadhu Sah (P.W.6), and Dhordhai Sah
(P.W.7), both village Panches have partly supported the prosecution case. They
denied to have seen the actual commission of occurrence and were declared hostile.
Dr. P.K. Jha (P.W.11) examined the injured persons, namely, Uday Chandra Sah
(P.W.1), and Bauku Sah (P.W.2), Ful Kumari (P.W.8), Sabo Devi (P.W.9) at
Maheshi hospital on the day of occurrence. Jugehswar Singh (P.W.12) is the I.O. of
this case. Dr. J.Lal (P.W.13), Civil Assistant Surgeon Sadar Hospital, Supaul held
post mortem on the dead body of the deceased (Ext.13). J.K.Mishra (P.W.14), and
Chotelal Yadav (P.W.15), are formal witnesses.
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4. Uday Chandra Sah (P.W. 1) in his deposition supported the prosecution
case as stated in the fardbeyan. He stated that the cattle of appellant Ram Chandra
Sah had grazed their field. They took the Panches to the field in proof of their
allegation, in presence of Ram Chandra Sah and his associates. In the meantime, an
altercation took place, and appellant Sita Ram Sah assaulted Bauku Sah(P.W.2)
with lathi on his hand and on his left thigh. The Panches separated both sides and
assured to settle the dispute. Thereafter, informant and his cousin returned home.
As soon as he reached his house, he saw appellant Ram Chandra Sah armed with
gun and other appellants armed with lathi to have arrived there. He stated that at the
instigation of Ganga Ram Sah and Sukhdeo Sah, the appellant Ram Chandra Sah
opened fire, causing injuries on the chest, face and mouth of Ram Udgar Sah who
died instantly. He also sustained pellet injuries on the left side of his head. He
further stated that the wife of Sagar Sah and one Ful Kumari, daughter of Bhagan
Sah, also sustained pellet injuries. One bull of Prem Sah also sustained pellet
injuries. Pitambar Sah also assaulted his brother Yogendra Sah with lathi on his
head. He had not seen any injury on the person of Ganga Ram Sah, Sukhdeo Sah
and Sita Ram Sah. He admitted that appellant Ganga Ram Sah has also filed a
counter case.
5. Bauku Sah (P.W.2) is another brother of the deceased Ram Udgar Sah. He
supported the allegation of grazing of the crops by cattle of Ram Chandra Sah. He
stated that Panches had also gone to the field and appellants Ram Chandra Sah and
Sita Ram Sah were also present at that time. He stated that there was hot exchange
between the two sides and appellant Sita Ram Sah assaulted him with lathi on his
left thigh. He stated that as soon as they arrived at their house the accused persons
variously armed came to their door and on order of Ganga Prasad Sah and Sukhdeo
Sah, the appellant Ram Chandra Sah opened fire, killing his brother Ram Udgar
Sah. His brother Ram Udgar Sah sustained injuries on his chest, face, and mouth.
He stated that appellant Pitambar Sah assaulted Jogendra Narain Sah with lathi. He
further stated that Ful Kumari (P.W.8), Sabo Devi (P.W.9), Udai Chandra Sah
(P.W.1), and one bull of Prem Sah received pellet injuries.
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6. P.W.3 Anar Devi, wife of deceased Ram Udgar Sah, also supported the
prosecution case. She stated that in the morning of the fateful day, she came out of
her house on hearing hulla. She saw appellant Ram Chandra Sah armed with gun
and other accused persons armed with lathi, having arrived at her house. She stated
that Ram Chandra Sah opened two fires from his gun killing her husband. She
stated that the appellant Pitambar Sah assaulted the informant Yogendra Sah with
lathi on his head. She further stated that her husband sustained injuries on his chest,
face and mouth. This witness has not named Umesh Prasad Gupta as one of the
accused, having come to her house along with other accused persons. She denied
the suggestion that she had not taken name of any other accused persons other than
the appellant Ram Chandra Sah before the police.
7. P.W.4 Parvati Devi is the mother of the deceased. She too had supported the
prosecution case, as narrated by P.W. 3 Anar Devi, wife of the deceased. She,
however, mentioned the name of Umesh Prasad Gupta also as one of the accused.
8. P.W.5 is a formal witness and has proved the signature of the informant
Yogendra Prasad Sah on protest petition marked as Ext.2.
9. P.W.6 Sadhu Sah, and P.W.7 Dhadhoi Sah, are two Panches, who had gone
to see the field, which was damaged by the cattle of appellant Ram Chandra Sah.
They supported the initial part of the occurrence, in respect of assault made by Sita
Ram Sah on Bauku Sah. However, they denied to have seen the actual occurrence
of murder and were declared hostile. No useful purpose would be served in the
facts of the case in examining their evidence in detail.
10. Ful Kumari Devi (P.W.8) is the daughter of Bhagan Sah. She stated that she
had gone to the place of Sabo Devi (P.W.9) in the morning. Around that time, she
heard hulla and saw appellant Ram Chandra Sah firing at Ram Udgar Sah killing
him on the spot. She stated that she too along with Sabo Devi and one bull
sustained pellet injuries.
11. Sabo Devi (P.W.9) wife of Sagar Sah who was also injured, however,
turned hostile.
6
12. Jogendra Narayan Sah (P.W.10) is the informant of this case. In his
evidence, he has fully supported the prosecution case narrated by him in the F.I.R.
He stated that the cattle of Ram Chandra Sah has grazed his field, and he took
Panches to the field to see for themselves the damage done to the crops. The
appellant Sita Ram Sah, who had also gone to the filed along with appellant Ram
Chandra Sah, assaulted his cousin Baukau Sah with lathi on his head and thigh. He
stated that soon thereafter Ram Chandra Sah armed with gun and other appellants
armed with lathi, came to his house. At the instigation of Sukhdeo Sah (now dead),
and Ganga Ram Sah (appellant no.1), Ram Chandra Sah opened two fires from his
gun resulting in the death of Ram Udgar Sah. The deceased sustained injuries on
chest, neck and face. His brother Udai Chandra Sah and Ful Kumari, who were
standing nearby and one Sabo Devi, and a bull of Prem Sah, also sustained pellet
injuries. He stated that Pitambar Sah (appellant no.3 of Cr.Misc.No.284 of 1988)
assaulted him with lathi on right portion of his head. On hearing hulla, witnesses
came to the place of occurrence and seeing them the accused persons fled away. He
further stated that the I.O. has recorded his fardbeyan (Ext.3), at the place of
occurrence. It appears that the defence has drawn his attention to his fardbeyan,
from which it would appear that his statement was recorded by the I.O., not at the
place of occurrence, but at Jalai O.P. In cross-examination he stated that it is not
correct that he has not mentioned in the fardbeyan that Sabo Devi, Ful Kumari and
a bull of one Prem Sah sustained pellet injuries. The defence has not been able to
elicit any material contradiction going to the root of the prosecution case. The
informant stated that he was in hospital for 17 days. We find that he has
substantially corroborated the prosecution case in his evidence except for some
minor contradictions.
13. Dr. P.K. Jha (P.W.17) prepared injury reports of five persons, namely, Uday
Chandra Sah, Ful Kumari Devi, Sabo Devi, Yogendra Narain Sah, and Bauku Sah
which has been marked Ext.4 to 4/4 respectively. He found fire arm injuries on the
person of Uday Chandra Sah, Ful Kumari, Sabo Devi. He further found that
Jogendra Narain Sah had sustained grievous injuries on his head, caused by hard
7
blunt substance (Ext.4/3). He found Bauku Sah having sustained swelling on his
left thigh, caused by hard blunt substance. The medical report of Doctor by far and
large proves the prosecution case that the aforesaid persons sustained fire arm,
injuries as well, as injuries caused by hard blunt substance.
14. Yogeshwar Singh (P.W.12) is the Investigating Officer of this case. He
found blood stained injuires on the head of the informant. He also found injuries on
the person of Bauku Sah, Ful Kumari, Sabo Devi and Uday Chandra Sah. He sent
all the injured persons, referred to above, to the hospital for treatment. In course of
investigation, he found that the paddy field of the informant was grazed and
damaged by cattle. He found Ram Udgar Singh lying dead on a rasta which was
just south west to the house of the informant. He also saw pellet wounds on a bull
of Prem Sah.
15. Dr. J. Lal (P.W. 13) conducted post mortem (Ext.13) on the dead body of
Ram Udgar Sah on 28.6.1983, at about 10 A.M. He found the following injuries on
the dead body:
i) There were twenty abrasions (pellet marks) on the upper part of the chest.
ii) There were four abrasions (pellet marks) on the front of the chest
iii) There were nine pellet marks on the lower jaw
iv) On opening the chest, the upper loves of the both the lungs were found torn
with free blood in both sides of the chest cavity. The injury was anti
mortem, fatal and caused by gun shot injury.
He recovered three pellets from the chest of the deceased also. He found
that injury no.4 was the cause of the death. He found over 31 pellet marks on the
person of the deceased. He opined that such injuries may be caused due to gun shot
from a distance of 15 yards. Time elapsed since death at the time of autopsy fits
with the time alleged in the prosecution case.
16. J.K.Mishra (P.W.14), and Chhotelal Yadav (P.W.15), are all formal
witnesses and have proved signatures on certain requisitions.
8
17. The defence examined altogether eight witnesses in support of their case.
Mahavir Prasad (D.W.1) is a Medical practitioner who examined the injuries of the
accused Ganga Ram Sah (Ext.A) on 27.6.1983.
18. Dr. Gajendra Prasad Thakur (D.W.7), a Medical practitioner of
Laheriasarai, District Darbhanga, stated that he did treatment of Ram Chandra Sah
from 24.6.1983 to 11.7.1983 as indoor patient in his clinic and proved his urine,
stool, and blood test report (Ext.E to E/2), and Ext.9. He proved his prescription
marked Ext.F to F/2 and proved his certificate dated 11.7.1983 marked Ext.H.
19. Ramdeo Sah (D.W.2), and Raghuvir Sah (D.W.5), a tendered witness, have
claimed to accompany the accused Ram Chandra Sah to Laharia sarai for treatment.
20. Sashidhar Karn (D.W.3), an Advocate’s Clerk, has formally proved
Vakalatnama (Ext.B), complaint petition (Ext.C) of Complaint Case No.338© of
1983.
21. Tribhuwan Narayan Singh (D.W.4) has proved his typing of complaint
petition.
22. Ayodhi Sah (D.W.6) has formally proved the hand writing and signature of
Arun Kumar Singh,a sales man of Krishna Medical Hall, Laheriasarai (Ext.D to
D/10).
23. The charges were explained to the accused persons in terms of section 313
Cr.P.C. in detail. Apart from the denial of charges leveled against them, a plea of
alibi was also taken in respect of appellants Ram Chandra Sah.
24. On consideration of the materials on record, the learned trial court found
that the prosecution has fully proved the manner of occurrence, as alleged by the
prosecution. He also came to the finding that plea of alibi of Ram Chandra Sah is
suspicious, as there was no reason for him to have gone to Laheriasarai for
treatment. He found that the injuries on the person of Ram Chandra Sah is of trivial
nature and as per Doctor can be easily manufactured. He found that the accused
persons have not been falsely implicated on account of complaint case (Ext.C). The
learned trial court held that appellant Ram Chandra Sah is guilty of the offence
under section 302 of the Penal Code and Ganga Ram Sah for the offence under
9
section 302/149 of the Penal Code. He found accused Sita Ram Sah and Pitamber
Sah guilty for the offence under section 323 of the Penal Code. He further found
that all the appellants of Criminal Appeal No.294 of 1988 guilty for the offence
under sections 147 and 302/149 of the Penal Code.
25. Learned counsel for the appellants submits that there is no whisper in the
evidence of the prosecution witnesses, that other appellants shared common
intention with appellant Ram Chandra Sah in killing the deceased. He stated that in
fact other accused persons did not even make any attempt to kill the deceased. He
submits that gun and cartridges used in the commission of crime has not been
seized. He further submits that there are major contradictions in the statement of the
informant Jogendra Narain Sah (P.W.10), as the I.O. has contradicted his statement
that his fardbeyan was recorded at the place of occurrence. He submits that the
informant was not in a position to make statement to the police in view of the
statement of his mother that he became unconscious soon after being injured. He
finally submits that the witnesses, namely, P.Ws 1, 2 and 10, who supported the
prosecution case, are all brothers and submitted that deceased and Uday Chandra
Sah sustained pellet injuries.
26. On the other hand, learned counsel for the State submits that the inference
of common intention could be drawn from the conduct of the accused persons who
all came and went together being variously armed. He further submits that the
witnesses have fully supported the manner of occurrence, place of occurrence and
time of occurrence. In support of his contentions, learned State Counsel relied upon
decisions reported in the case of Willie (Wiliam) Slaney Vs State of Madhya
Pradesh, 1956 SC 116; Lalji & Ors Vs State of U.P., A.I.R. 1989 SC 754; Bikau
Pandey & Ors Vs State of Bihar, A.I.R. 2004 SC 997 and Gangadhar Behera & Ors
Vs State of Orissa, 2003 SCC (Cri) 32.
27. He further submits that the alleged injuries on the person of the accused
Ram Chandra Sah are all superficial and can be easily manufactured. He submits
that the defence has not been able to prove the case of alibi of Ram Chandra Sah
and a plea of alibi has to be proved with all absolute certainty. He submits that the
10
accused persons had reasons for committing the occurrence, as they were infuriated
because of the complaint made against them to the Panches.
28. We now proceed to examine their rival submissions. The main issue is,
whether the prosecution has been able to prove the place and manner of occurrence.
P.W.1, P.W.2 and P.W.10 consistently stated that the cattle of accused persons
grazed their field. In support of their assertion, they even took P.W.6 and P.W.7 to
their field in presence of accused Ram Chandra Sah and Sita Ram Sah. All the
aforesaid witnesses specifically stated that altercation ensued there and accused Sita
Ram Sah assaulted Bauku Sah with lathi on his thigh causing injury. Even the I.O.
in course of investigation inspected the field and found the same to be grazed and
damaged by cattle. Further more P.Ws 1, 2, 3 and 10 had stated in their evidence
that the accused persons thereafter arrived at their house, variously armed and at the
instigation of Sukhdeo Sah and Ganga Ram Sah opened fire killing Ram Udgar Sah
on the spot. The witnesses consistently stated that the accused persons assaulted the
informant on the right side on his head and right hand. They also stated that Uday
Chandra Sah, Ful Kumari, and Sabo Devi, and a bull of Prem Sah, sustained pellet
injuries. P.W. 13 the Doctor, who held post-mortem on deceased Ram Udgar Sah,
opined that the latter died on account of gun-shot injuries. He found that the
deceased had sustained 20 pellet marks on the upper part of chest, 4 pellet marks on
the front part of chest, and 9 pellet marks on the lower jaw. He also found that on
opening the chest, the upper loves of both lungs were found torn with the blood in
both sides of chest cavity. The time elapsed since death as mentioned in the post-
mortem report fits in with the prosecution case. Dr. P.K. Jha, P.W.11, also found
pellet injuries on the person of Uday Chandra Sah. He also found injuries on the
person of the informant on his head and hand, the former being grievous in nature.
29. It is true that he did not find any fire-arm injury on the person of Ful
Kumari Devi and Sabo Devi, and as such the claim of prosecution case that they
also sustained pellet injuries in course of firing opened by accused Ram Chandra
Sah is not consistent with the prosecution case to that extent. It is not uncommon
that such errors in perception do crop up when firing is resorted on a group of
11
persons followed by assault by other weapons. The witnesses in such situation are
in a state of shock and the first anxiety is to save themselves and others. It is not the
defence case that Ful Kumari Devi and Sabo Devi have sustained no injury.
30. Learned counsel for the appellants submits that in view of the statement of
P.W. 3, the wife of the deceased, the informant P.W.10 would not have been in a
position to make his fardbeyan in the same evening. He submits that P.W.3 stated
in her evidence that, after the occurrence, the informant Jogendra Narayan Sah
remained unconscious for 2-3 days. It would be relevant to note here that Anar
Devi(P.W.3) supported the occurrence and has stated in her evidence that accused
Ram Chandra Sah opened fire killing her husband, and accused Pitambar Sah
assaulted the informant with lathi on his head. It would appear from the evidence
that the informant (P.W.10) was also taken to the hospital for treatment of his head
injuries, which was grievous in nature. P.W. 3 being an illiterate woman while
making her aforesaid statement must be making the statement as the informant
remained hospitalized for two to three days.
31. Learned counsel for the appellants submitted that the informant made his
fardbeyan at the place of occurrence in his village, whereas the I.O. stated that he
has recorded the fardbeyan at Jalai O.P. On the basis of such contradiction, he had
submitted that the statement of the informant Jogendra Narayan Sah (P.W.10)
cannot be deemed to be reliable and on scrutinizing of the evidence of the I.O. In
this respect we find that except for aforesaid error in his evidence, his statement has
been consistent with the prosecution case.
32. The next issue is whether prosecution has any motive for committing the
aforesaid occurrence. It is now established from evidence that the informant
complained to the Panches P.Ws 6 and 7 that cattle of accused persons grazed his
field. The accused persons got infuriated, and not only assaulted Bakau Sah at the
time of inspection of the field by Panches itself, but they followed suit, variously
armed and attacked the prosecution side killing the informant’s brother Ram Udgar
Sah. Thus we find that the accused person were angry, as a complaint was made
against them and in fit of rage committed the instant occurrence.
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33. This takes us to the next question, whether charge under section 302/149 of
the Penal Code has been made out against the other accused persons. Learned
counsel for the appellants submits that it would appear from the prosecution case
that other appellants, namely, Sita Ram Sah, Pitambar Sah, Jagdish Sah, Ganga
Ram Sah, and Umesh Prasad Gupta, did not participate in the assault of the
deceased Ram Udgar Sah. He submits that as such no case either under section
302/149 or 302/34 of the Penal Code is made out against the accused appellants.
34. In this respect we find that the witnesses consistently stated that Ganga Ram
Sah and one Sukhdeo Sah (now deceased) exhorted the accused persons to assault
prosecution side, whereupon Ram Chandra Sah opened fire and other accused
persons assaulted the informant and others. It would further appear from evidence
of the prosecution witnesses that all the accused persons came variously armed to
the place of the prosecution side and instantly on the order of Ganga Ram Sah, one
of them, namely, Ram Chandra Sah opened fire killing the deceased. It would
further appear from the prosecution case that after the incident all of them fled
together. It would thus appear from the evidence of prosecution witnesses that all
the accused persons shared common object of committing murder of a member of
the prosecution side in which one of them executed the plan by firing at the
deceased. It is not necessary that individual overt act on the part of every member
of unlawful assembly would be necessary for showing that they shared the same
common object for proving a charge under section 302/149 I.P.C.
35. The aforesaid view of ours finds supports decision of the Apex Court in the
case of Lalji Vs State of U.P., 1989 SC 754; Bikau Pandey Vs State of U.P., 2004
SC 997; G.Bahera and others Vs State of Orissa, 2003 SCC (Cri) 32. It is well
established by now that sharing common object can be culled out from the nature
of assembly, arms it carries, behaviour at or before occurrence. Thus we find and
hold that the prosecution has proved the charge under section 302/109 of the Penal
Code as well as section 302/149 and 147 of the Penal Code against appellant Ganga
Ram Sah and charge under section 302/149 of the Penal Code against appellants
Sita Ram Sah, Pitambar Sah, Jagdish Sah and Umesh Prasad Gupta. We further
13
hold that the charge under section 323 of the Penal Code is also made out against
the appellants Pitamber Sah and Sita Ram Sah.
36. Learned counsel for the appellants also urged the plea of alibi of appellant
Ram Chandra Sah. He submits that Ram Chandra Sah was hospitalized in the clinic
of Dr. J.K. Thakur (D.W.7) from 24.6.1983 to 10.7.1983. He submitted that the
Doctor proved the urine, stool and blood test reports (Ext.E to Ext.E/2). He submits
that Ayodhi Sah (D.W.6) has proved handwriting and signature of Arun Kumar
Singh, a sales man of Krishna Medical Hall (Ext.D to D/10).
37. On careful scrutiny of the defence witnesses, it would appear that the
Doctor has stated in his evidence that the injuries were superficial in nature and can
be manufactured. He admitted in his evidence that no register has been maintained
in respect of indoor patient. He also admitted that even there is no register for
maintaining the case receipt. It would further appear from the evidence that
D.M.C.H., Darbhanga is very close to the clinic of Dr. J.K. Thakur, still he was not
examined there. The aforesaid Ram Chandra Sah is resident of Village Birgaon,
Naya Tola, Mahisi, in the district of Saharsa, and it appears strange that he was
carried for treatment to a far-flung district. In this view of the matter, this court
holds that the trial court has rightly found that the defence has not been able to
prove the alibi of appellant Ram Chandra Sah. It is well settled by now that alibi
must be proved with absolute certainty. In the instant case, the plea of alibi of
appellant is unsustainable.
38. On consideration of the materials on record, we find that the charge under
section 302 of the Penal Code is fully proved against the appellant Ram Chandra
Sah and his conviction by the trial court is in order.
39. From the aforegoing discussion, we find and hold that the prosecution has
been able to prove the charge under section 302 of the Penal Code against appellant
Ram Chandra Sah, charge under section 302/149 of the Penal Code against all the
rest five appellants. The prosecution has also been able to prove further charge
under section 302/109 against appellant Ganga Ram Sah and charge under section
14
323 of the Penal Code against the appellants Pitamber Sah and Sita Ram Sah
beyond all reasonable doubts.
40. In the result, the instant appeal fails and is dismissed. As a consequence, the
bail bonds of the appellants are cancelled and they are directed to surrender before
the learned trial court to serve out the remaining part of their sentences.
41. The Patna High Court Legal Services Committee would pay a sum of
Rs.5000/-(Rupees Five thousand) to Mr. Sidharth Prasad, Advocate, who appeared
in this case as Amicus Curiae and rendered valuable assistance to the court.
(Samarendra Pratap Singh,J)
(Sudhir Kumar Katriar,J)
Patna High Court
Dated the 9th July, 2008
KHAN/A.F.R.