CRIMINAL APPEAL No.392 OF 1988 (D.B.) ******* Against the Judgment and order dated 21st July, 1988, passed in Sessions Trial no. 20/1979 by Sri Dina Nath Prasad, 10th Additional Sessions Judge, Arrah. ******* 1.Sri Kishun Pandey 2.Dina Nath Yadav ------------Appellants Versus The State of Bihar -----------Respondents ******* For the Appellants : S/Shri Kamal Nayan Choubey, Sr.Adv. Subhash Chandra Dubey, Ambuj Nayan Choubey & Siddharth Harsh For the State : Sushri Shashi Bala Verma ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra, JJ. There were originally three accused in the first information report (Exhibit-1). One of them, namely, Bhuar Pandey, was killed during the course of trial as may appear from the evidence of P.W.2 in paragraph 5. The trial proceeded against the two appellants, who stood charged with the deceased accused Bhuar Pandey under Sections 302/34 and 307/34 of the Penal Code. The judgment was pronounced by the learned 10th Additional Sessions Judge, Arrah, on 21st July, 1988 in Sessions Trial 2 no. 20 of 1979 and the two appellants were found guilty of committing the two offences they had been charged with. After hearing on sentence, the learned Judge directed each of the appellants to suffer rigorous imprisonment for life and rigorous imprisonment for ten years for their individual conviction under Sections 302/34 and 307/34 of the Penal Code. The above finding of guilt and sentence are being assailed by the two appellants in the present appeal. 2. The prosecution case is contained in the fardbayan of Nasiruddin Mian, which was recorded on 30th March, 1974 in the Government Hospital, Itarhi. It was alleged that he was bringing some articles for sale by a horse and when he had reached in front of the house of one Baban Dhobi the two appellants were seen standing nearby, who were armed respectively with Sonta (Lathi) and Bhala. Appellant Shri Kishun pandey, asked the informant, Nasiruddin Mian, to stop. He complied. In the meantime, deceased accused Bhuar Pandey appeared there with a gun and fired a shot at the informant who started running and during that course was hit by the pellets and 3 fell down. The uncle of Nasiruddin Mian came to lift him. The second shot was fired by Bhuar Pandey and that hit Suleman Mian, the uncle of the informant. The mother of the informant was also hit by pellets. 3. Both the informant and injured Suleman Mian were brought to Itarhi Government Hospital where they were admitted for being treated and during that course Suleman Mian breathed his last in the hospital. 4. The Investigating Officer has not been examined as such we do not know as to how the investigation had proceeded. This much is apparently clear that the three accused persons were sent up for trial which, ultimately, resulted in the judgment of conviction, as indicated just now. 5. We have heard Shri Kamal Nayan Choubey, senior counsel appearing for the appellants, who has submitted that there was no allegation against either of the two appellants of committing any overt act except that appellant, Shri Kishun Pandey was alleged to have asked the informant to stop. It has not been stated as to what was the purpose for stopping the informant and whatever act 4 was, ultimately, done appears the individual act of deceased accused Bhuar Pandey. But, still the appellants stood convicted for the twin offences. It was contended that subsequently during the course of recording evidence the witnesses appeared embellishing the prosecution case by introducing additional fact that appellant Shri Kishun Pandey ordered Bhuar Pandey to kill upon which he had fired the shot. But the attention of each witness was drawn to that particular fact by suggesting to each of them that they had not made that statement during the course of investigation which fact was not proved on account of the non-examination of the Investigating Officer. It was contended that in face of the fact that the allegation of remonstrating the main assailant Bhuar Pandey to fire the shot, there could not be any material to suggest that the accused persons had acted in furtherance of their common intention to commit the offences. 6. Sushri Shashi Bala Verma also conceded that the improvement made by the witnesses were not in their earlier statements before the Police and as regards the sharing of common intention or having conspired together 5 or even that the accused persons could have shared common intention at the spot, there was no evidence in that behalf. 7. We have perused the evidence of P.Ws.1, 2, 3, 4, 5, 6 and 7 and we find that except P.W.2, Usman Ghani Khan, who was not really an eye-witness to the occurrence, none of the above witnesses have made above statement that Shri Kishun Pandey had ordered deceased accused Bhuar Pandey to fire. It is true that they had made the statements, but they had been suggested during cross examination after their individual attentions being drawn to this improvement that they had not made this statement before the Police. The case of the defence could be prejudiced on account of the non-examination of the Investigating Officer who could have been the only witnesses to prove whether any of the witnesses had really made such statement before him under Section 161 of the Code of Criminal Procedure. In absence of the examination of the Investigating Officer of the case we could draw an inference that had he been examined by the prosecution he would not have said that the witnesses had 6 made that particular improved statement before him. 8. By excluding the above evidence from the depositions of the witnesses there does not remain any allegation against the two appellants about acting in concert or acting with pre meeting of mind, what is generally branded as acting in furtherance of common intention. It could be either preceding the commission of the offences or it could occur just at the time of the occurrence was taking place. But, for raising the above inference materials to that effect is required to be produced before the Court that on account of a particular fact or a conglomeration of facts an inference could be raised that the accused persons were sharing common intention or had shared common intention at the spur of moment which would happen at the place of occurrence itself. For getting the inference to the above effect raised in the mind of the Court the prosecution is required to lead evidence in that behalf. We are of the opinion that an evidence of the above character could be placed before the Court by presenting concrete facts about the participation of the individual accused person in the commission of the offence 7 either in its entirety or on any part of it. 9. We have already noticed that there is absolutely no material brought on the record to indicate that the accused persons had a pre-arranged meeting of mind or that they had decided to do the illegal act even by legal means or had conspired to do an act through one of them. The evidence is wholly depleted on the aspect of the case that even after having appeared at the scene of occurrence the accused persons were sharing the intent of each other or had acted in furtherance thereof. There is complete absence of allegation of committing individual acts against the two appellants and in our considered view the quality of evidence, which was produced before the court below, did not warrant recording finding against the appellants of committing the offence either under Section 302 or 307 of the Penal Code by virtue of 34 of the Indian Penal Code. In our considered view, the charges had not been proved which entitle the appellants to acquittal. 10. In the result, the appeal is allowed. The two appellants are acquitted of the charges by setting aside the judgment of conviction and sentences passed upon 8 them. Both the appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. (Dharnidhar Jha, J.) (Akhilesh Chandra J.) Patna High Court, The 06th April, 2010. AAhmad/ (NAFR).