CRIMINAL APPEAL NO. 710 OF 2004 CRIMINAL APPEAL NO. 714 OF 2004 CRIMINAL APPEAL NO. 731 OF 2004 CRIMINAL APPEAL NO. 743 OF 2004 --------- Against the judgment and order of conviction and sentence dated 20th August, 2004 passed in S.T. No. 238 of 1995 / 8 of 2004 by Shri Brajendra Kumar Srivastava, Additional Sessions Judge F.T.C., IV, Nawada. -------- Cr. Appeal No. 710 of 2004 Bipin Singh, son of Arjun Sharma, resident of village – Lakhmohua, Police Station – Akbarpur, District – Nawada ……………. Appellant Cr. Appeal No. 714 of 2004 1. Manohar Singh, 2. Subodh Singh, both sons of Jagarnath Singh, resident of village Lakhmohna Police Station, Akbarpur, District – Nawadah, at present resident at New Area Nawadah, P.S. and District – Nawada …………… Appellants Cr. Appeal No. 731 of 2004 Vinod Singh, son of Jagarnath Singh, resident of village – Kakhmashna, P.S. – Akbarpur, District – Nawada …………….. Appellant Cr. Appeal No. 743 of 2004 Kamta Singh, son of Jagarnath Singh, resident of village – Kakhmohna, P.S. – Akbarpur, District - Nawada Versus The State of Bihar ……… Respondents (in all the appeals) --------- For the Appellants : Sarvashri Ramakant Sharma, Senior Advocate Akhileshwar Prasad Singh, Narendra Kumar Singh, Advocates 2 For the State : Shri Ashwini Kumar Sinha, APP For the Informant: Shri Pankaj Kumar, Advocate ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ----------- Mridula Mishra & Dharnidhar Jha, JJ. The present batch of four appeals have been preferred by a total number of five appellants so as to challenging the propriety and correctness of findings and sentence recorded and passed against each of the appellants by the learned Additional Sessions Judge cum – P.O., Fast Track Court – IV, Nawada in Sessions Trial No. 238 of 1995 / 8 of 2004 through judgment passed on 20th August, 2004 in that case. By the impugned judgment, appellant Kamta Singh was found guilty of committing offence under section 302 of the IPC and was directed to suffer R.I. for life as also to pay a fine of rupees five thousand, else to undergo further period of R.I. for one year. Besides, appellant Kamta Singh was also held guilty of committing offence under section 27 of the Arms Act and was directed to suffer R.I. for three years. So far as remaining four appellants are concerned, they were found having committed offence under sections 302/149 of the IPC and each of them was directed to undergo R.I. for life. 2. The prosecution case is founded on the fardbeyan (Ext. 2) of P.W. 15 Dina Singh. It was alleged by the informant that he was in possession of a gairmajarua land for quite some times and had also constructed a house over it. He had entered into an agreement to sell 3 the house along with the land to Balak Yadav (Ram Balak Yadav, P.W. 11) who was to pay the price of the property later on and who had constructed a house over it after obtaining possession from the informant for his younger brother Sanjay Yadav who was already residing in it on the date of occurrence. But appellant Kamta Singh along with his associates drove away the said Sanjay Yadav from the house and captured it and started living in it for which, criminal case was also filed in the police station. 3. In the above background it was alleged that on the day of occurrence, i.e., on 7.9.1994 at about 6 P.M. the informant while he was going to purchase animal feed for his cattle and when he had just come out of Nardiganj road, found appellants armed with guns there along with nine – ten other unknown. It is alleged that appellant Kamta Singh fired a shot on the informant Dina Singh but, it missed its target and, instead, it hit Ganauri Yadav, as a result of which he fell down and died there. It was further alleged that accused persons had also fired shots at the gate of the house of P.W. 15 and there were marks of gun shot thereon. Appellant Kamta Singh was also accompanied by his two younger brothers whose names the informant could not cite in the FIR but, stated that the same would be supplied later on. 4. On the basis of Ext. 2, the FIR of the case (Ext. 2/1) was drawn up and the investigation was taken up by the police officers. On account of the non-examination of any of the police officers, we cannot be sure about the ways the investigation was conducted, but we find 4 from the records of the case that inquest was held on the dead body of the deceased Ganauri Yadav on 7.9.1994 at 19 hours, i.e., 7 P.M. and, the dead body was sent for postmortem examination along with the copy of the inquest report and, accordingly, P.W. 16 Dr. Shailendra Kumar held post mortem examination and prepared the report Ext. 1. This much is clear that after close of investigation, the appellants were sent up for trial, which ended in the impugned judgment. 5. The defence of the appellants was that the story as propounded by the informant was false and concocted and no occurrence in the manner, as was narrated by him, had taken place and, in fact, some unknown persons had shot and killed Ganauri Yadav and, taking advantage of the inimical relationship between the appellants and himself, the informant foisted a false case in league with P.W. 11, Ram Balak Yadav. 6. We have heard Shri Ramakant Sharma and Shri Akhileshwar Prasad Singh, learned counsel for the appellants and we have also heard Shri Ashwani Kumar Sinha, learned APP for the state and Shri Pankaj Kumar, learned counsel appearing for the informant. 7. We were taken through the evidence of three witnesses who have given eye witness account of the occurrence, like, P.Ws. 11, 12 and 15. It was contended that the presence of P.Ws. 11 and 12 appears doubtful inasmuch as P.W. 15 Dina Singh, the informant in paragraph 8 of his evidence, has stated that after the commission of the murder of Ganauri yadav, a mob assembled there which was of about 100 – 200 persons 5 which was also joined by Ram Balak Yadav. It was contended, as such, that P.W. 11 Ram Balak Yadav might not have been present as was claimed by him from the very beginning of the occurrence and as such, his evidence must be discarded. It was contended further that P.W. 12 Navin Kumar was the son of the informant and he along with P.W. 11 appear interested persons because the enmity was admitted on account of the alleged dispute for particular piece of land and as such, the solitary evidence of Dina Singh has to be scrutinized for examining the propriety of the impugned judgment of conviction. It was contended in the above connection that on account of the informant bearing animosity on account of the land dispute, his evidence also could not be said to be above board and could not be relied upon. The whole incident appears suspect leaving the suggestion given to P.W. 15 about the false implication of the appellants, the only probability. It was contended, lastly, that in any view of the matter, the conviction of the appellants under section 302/149 of the IPC would never be sustained in view of the fact that the unlawful assembly which the appellants were allegedly forming, had the common object of killing Dina Singh, the informant, and it was simply by accident that the shot hit Ganauri Yadav and he was killed. As such, the knowledge of the members of unlawful assembly that they were out to kill Ganauri Yadav, appears vanishing and as such, the application of section 149 of the IPC could not be appropriate under the facts of the case. In support of the contention, our attention was drawn to A.I.R. 1965 Supreme Court 1260 6 (Shankarlal Kacharabhai and others Vs. The State of Gujrat), A.I.R. 1996 Supreme Court 3051 (Raghuvir Singh and others Vs. State of Punjab) and lastly 1963 (1) Cri.L.J. 415(AP) (re, Girada Narayana & ors ). 8. Before we proceed to examine the evidence of witnesses, it appears necessary to point out that out of seventeen prosecution witnesses examined so far during the trial, P.Ws, 1, 2, 5, 7, 8, 10, 13 and 14 were not supporting the charges and, in fact, all the above witnesses except P.Ws. 13 and 14 were declared hostile. Out of the remaining prosecution witnesses, P.Ws 3, 4 and 6 were tendered for cross examination. Thus, leaving only two witnesses namely, P.W. 11 Ram balak Yadav and P.W. 12 Navin Kumar as eye witness who came to support the evidence of P.W. 15 Dina Singh, the informant, P.W. 9 Ram Dhari Yadav also falls in the same category of witnesses which is comprised by P.Ws 13 and 14. P.W. 16 Dr. Shailendra Kumar held postmortem examination on the dead body of the deceased also testified the finding of lacerated wound on the right side of the chest interiorly 1” below nipple of the size ½” x ½” x chest cavity deep. The margin of the wound was found blackened and inverted. In the opinion of P.W. 16, it was the wound of entry. On dissection, P.W. 16 found a metallic object lodged in 4th right thoracic vertebra and it was brought out and was sealed and labeled. Right chest cavity was found full of blood and right lungs was lacerated. In the opinion of P.W. 16, the injury was sufficient to cause death in the ordinary course of nature and 7 it was caused by fire arm. Thus, the evidence of P.W. 16 basically supports the prosecution story that Ganauri Yadav was hit by a fire arm and he died on account of injuries which was caused to him by such a shot. 9. The basic issue which was decided by the trial court regarding the participation of the appellants in commission of the offence has been seriously challenged before us, especially, by challenging the very competence of the witnesses. There is no witness named in the FIR. It is a simple statement as to how the incident had occurred and for what reason. The witnesses who came forward to support the killing of Ganauri Yadav, could not be confined only to P.Ws 11, 12 and 15 rather, some of the witnesses who might not have taken the names of any of the accused, do appear telling the trial court and us as well that Ganauri Yadav has been killed at the place of occurrence, which is indicated by the evidence of P.Ws 11, 12 and 15. We could profitably refer to the evidence of P.Ws 9, 13 and 14 in the above respect. P.W. 9 has stated that on halla he came to the place of occurrence and found Ganauri Yadav lying dead there. He stated that he did not know as to who killed him. P.W. 13 has stated that when he was going to his house from the market place and he reached the place which has been described by the witness as Garhpar, and saw that his father was hit by a bullet and he fell down there. He has specified the place where the deceased fell after having received gun shot and, according to P.W. 13, it was a mass of earth where his father had fallen and had died. P.W. 8 14 Dilip Sah has also stated that while he was sitting at his shop, he heard the sound of gun shot and found that Ganauri Yadav was lying on the road near the house of one Raghuvir Sah. He could not see as to who had fired at him. The evidence of these witnesses, we find, sufficiently indicate that Ganauri Yadav had been hit by a gun shot which had been fired by some one else, as a result of which he fell and died at a particular place. 10. Now, turning to the evidence of three witnesses, we find that P.W. 15 has stuck up to his original narration as to how the incident had occurred and for what reason. His evidence specifies as to who were the persons who were standing at a particular place which has been described by him as road near the shop of one Binod Halwai and how they were armed with weapons. P.W. 15 has stated that appellant Kamta Singh had a rifle and others were armed with guns. At time, when P.W. 15 reached at the particular place, which has been described by the witness, the road by the side of one Raghuvir Sah, the deceased Ganauri Yadav also came there simultaneously and the informant started having some talks with him. In the meantime, appellant Kamta Singh fired a shot from a distance of 10-15 feet but the informant hid himself behind a wall and the shot hit Ganauri Yadav on the right side of his chest and he ran to some distance after pressing his chest and fell down on the mass of earth and, ultimately, died there. This evidence of P.W. 15 has been corroborated by the evidence of P.W. 11 Ram Balak Yadav in its entirety. P.W. 12 Navin Kumar has also come to support 9 his father P.W. 15 Dina Singh, but while we were considering the evidence of P.W. 12, we found it would not be safe to rely on the evidence of P.W. 12. The reason which we find for not placing reliance upon the evidence of P.W. 12 appears from the evidence of that very witness. The witness has stated that while he was coming back from a particular shop after having purchased the feed for cattle, appellant Kamta Singh passed some remarks upon him and started chasing him. The witness ran to his house and Kamta Singh was accompanied by other appellants in the chase of P.W. 12. It is alleged by the witness that he was chased up to the gate of his house and during that course, accused Kamta Singh fired a shot, which hit the iron sheet of the gate of the house. Thereafter, he went inside the house and subsequently, came out of it by its rear entry door to find that Ganauri Yadav, the deceased and his father were talking and going together on road. By that time, appellant Kamta Singh came there and fired a shot on him but the shot hit Ganauri Yadav who fell down and died there. 11. We have purposely extracted the evidence of P.W. 12 so as to indicate as to why we were not placing reliance on him. If this part of the incident had really happened, then it was necessary that the informant who had lodged the report, could have stated those facts in the first information report. He has merely stated that appellant Kamta Singh had fired a shot at his gate also. Besides, the conduct of P.W. 12 does not inspire confidence. If he was chased by the group of appellants and if he was targeted by being shot at, then it is simply unbelievable to 10 accept his version that he again came out of door. This appears to be a bit exaggerated that P.W. 12 was telling this part of the story to the court. In addition to the above, the very incident as narrated preceding the main occurrence, would have generated a great ha and hoopla in the locality and it would, then, have created a situation under which the informant and others would not have remained as aloof as is indicated by the facts presented. The informant would have rushed to the police with P.W. 12 to lodge a report of the incident. On these scores, as also on account of being interested in the prosecution as also on account of being the son of the P.W. 15, he came to support the charges. This is the reason upon which we do not find it prudent to place reliance upon P.W. 12. 12. The evidence of P.W. 11 Ram Balak Yadav was sought to be rejected in the light of the evidence of P.W. 15 Dina Singh, the informant of the case which has come in paragraph 8 of his deposition. P.W. 15 has stated that after the shot had been fired, there was a commotion and after the occurrence had taken place, he went to a place, just by the side of Binod Halwai and thereafter, people started trickling in the place of occurrence and it was a crowd of about 100 – 200 persons. The informant stated that he remained there for an hour when the police also came in between and it dispersed the mob. He had, out of the persons who were there as members of the mob, identified Ram Balak Yadav (P.W. 11), Dilip Sah (P.W. 14), Sitaram Halwai (dead) and Rajendra Choudhary (not examined) and others. 11 13. It was contended by Shri Akhileshwar Prasad Singh, learned counsel for the appellant Kamta Singh and others that the evidence at paragraph 8 of P.W. 15 could be sufficient to indicate as if P.W. 11 was never present from the very beginning of the incident and had rather come out of curiosity as one of the members of the mob of lookers that had assembled there. 13. We have difficulty in accepting the contention for many reasons; one reason which we find is that we cannot reject the evidence of a witness by reading the evidence of another witness. Competence of a witness has always to be tested by the evidence of that particular witness and his claim of seeing the occurrence has also to be scanned by considering his evidence or some facts which might have been introduced or elucidated by cross examining that witness. The other reason which appear, is circumstantial in nature. It was a road and it was a road amidst market place. It was business time in the month of September at about 6 P.M. It could be quite busy a place and two persons or a person like the informant, who was hiding behind a wall for evading the attack of the appellant, is never supposed to glance around his shoulders so as to finding out as to who were the persons present at or around the place of occurrence. The above apart, on reading the evidence of P.W. 15 in para 8, we do not find the evidence could be interpreted in the manner as has been done by the learned counsel for the appellants. The answer was to question put to the witness in cross examination and it was replied accordingly. Merely 12 because P.W. 15 was asked to point out as to whom he had identified among the mob, it could never mean that P.W. 11 was not present at the place of occurrence from the very beginning of it. Simply because P.W. 11 was having some interest in the land or the house, which allegedly was usurped or admitted to be usurped by appellant Kamta Singh, we could not reject his evidence as well. On considering his evidence, we found it not suffering from any material defect. There might be some attentions drawn to the statement of the witness but, after considering these statements in paragraphs 12 and 13, we do not find it affecting the material parts of the prosecution case. Those statements related only about the identification of a few appellants, like, appellant Kamta Singh. His evidence, appears to us, inspiring confidence. 14. Thus, we find that the fact that Ganauri Yadav was shot and killed, appears established because, not only it is the evidence of two witnesses, like, P.Ws. 11 and 15 that he was shot and killed, rather those witnesses who have not named any accused as persons who had participated or who had really accomplished the killing, have also stated that Ganauri Yadav was shot and killed. The names of the accused have come from the evidence of P.Ws 11 and 15 that it were Kamta Singh and other appellants who had participated in commission of the murder of deceased Ganauri Yadav who was hit by shot fired by appellant Kamta Singh. Thus, we find that the finding recorded by the 13 learned trial court on the proof of the manner of occurrence and killing of Ganauri Yadav is fit to be upheld. 15. This brings us to consider as to whether the appellants, other than appellant Kamta Singh, could be found guilty under sections 302/149 of the IPC in face of the established fact that Kamta Singh was intending to kill Dina Singh, the informant, but his shot hit the wrong target, i.e., Ganauri Yadav (Mahto) and he was killed instead. 16. The decisions which have been placed before us directly or by implication, have considered the question as regards the application of the provision either of section 34 or section 149 of the IPC. In Shankarlal, the contention was that the accused persons were shooting at a particular person in belief that he was the person whom they intended to kill and in that belief, they were killing the man who was not intended by them to be killed. It was contended that the facts of the case could render conviction of the appellant before the Supreme Court under section 302/34 of the IPC not sustainable. While answering the above poser, the Supreme Court held that it was by virtue of section 34 of the IPC that the criminal act was being punished and that particular provision of section, i.e., section 34, was creating a liability to punish a criminal act which is the result of the concerted action of more than one person; if the said result was reached in furtherance of common intention, each person is liable for the result as if he had done it himself. The Supreme Court further held that the accused persons were firing at the deceased believing him to be the man whom they intended 14 to kill, so it could not be a case under section 301 IPC rather, it could be one under section 302 and other accused persons would equally be liable by section 34 of the IPC. 17. In another decision cited before us, which is reported in AIR 1996 SC 3051, the facts appear almost akin to the facts of the present case. The necessary principle appears laid down in paragraph 9 of the report and we want to profit ourselves by extracting the said paragraph which runs as under: “9. Our critical analysis of the evidence on the record shows that the common object of the unlawful assembly was limited to the attack on Santokh Singh and did not extend to cover the murder of Balwant Singh. Balwant Singh apparently received the injuries when he intervened during the course of the occurrence and those injuries proved fatal. The trial Court rightly found that in the established facts and circumstances of the case, the accused who had actually caused the injuries to Balwant Singh alone were responsible for the murder of Balwant Singh and that others could not be held liable either with the aid of Section 149 or Section 34, IPC.” 18. It may appear from the above discussion made by the Supreme Court that as soon as the facts and circumstances of the case could indicate that there was absence of the knowledge or intention as to who was to be killed, the application of section 149 of the IPC shall vanish 15 and in such a situation, the accused persons other than the main assailant could not be held liable by applying section 149 of the IPC. 19. The provision of section 149 of the IPC punishes every member of the unlawful assembly if any of the members of that assembly