Case: Hare Krishna Vs. State of Bihar

It is not disputed that he is the brother-in-law of Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below. 25. So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajender Singh, the learned counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence. 26. In the FIR, his name has not been mentioned. It has only been stated "Jagdish Singhs nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The IO (PW 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singhs nephew as given in the FIR. The most significant fact is that PW 3 failed to identify the appellant in the TI Parade. PW 8 did not attend the TI Parade. His case is that he was not called to attend the TI Parade. On the other hand, it is the defence case that PW 8 was called but he did not attend the TI Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur. It is true that PWs 3 and 8 identified Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained. 27. Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both of them have been named in the FIR. It is submitted by the learned counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them. It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the learned counsel submits, that fact will not be sufficient to impute common intention to them. 28. So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him. It is the evidence of all the eyewitnesses, namely, PWs 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha also fired at the deceased. After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, PW 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary. PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary. It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them. 29. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]23. It may be that two empties were found by the side of the dead body of the deceased, but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired. The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out. We do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused. In the circumstances, we are of the view that the appellant Hare Krishna Singh had been rightly convicted and sentenced as above.24. Now we may deal with the case of Paras Singh of Dhobaha one of the appellants in Criminal Appeal No. 690 of 1982. He was found with the accused persons including Hare Krishna Singh. It is not disputed that he is theof Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below.The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses,of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.