Case: Hare Krishna Vs. State of Bihar

2. The prosecution case as appearing from the Fardbeyan or the FIR lodged by one Sarabjit Tiwary (PW 3), a social worker, on December 12, 1987 in the Arrah Sadar Police Station, was that on that day at about 7 a.m. he was going to his brotherlaw Raghubir Mishra and just as he reached near the main gate of the Sadar Hospital, he saw seven persons. namely, " (1) Hare Krishna Singh, resident of Dhanpura; (2) Sheo Narain Sharma, resident of Berkhembe Gali; (3) Ram Kumar Upadhaya, resident of village Dumaria; (4) Jagdish Singhs nephew of Birampur in military service; (5) brotherlaw of Hare Krishna Singh of Dhobaha in military service" and two more persons whom he could not identify. All the said persons were armed with rifle, gun and pistol, and were standing near northern side of the eastern gate of the hospital. At that time, two rickshaws were coming from the eastern side. In the front rickshaw, Jitendra Choudhary and another person named Lallan Rai, resident of village Maniya, were sitting and in the rear rickshaw there were two girls. As the rickshaw of Jitendra Choudhary came near the persons mentioned above, all of a sudden, Hare Krishna Singh fired at Jitendra Choudhary from his gun, whereupon the latter fell down from the rickshaw with the rifle which he was carrying with him. The other persons also fired upon Jitendra Choudhary along with Hare Krishna Singh, as a result of which he died. After that Hare Krishna Singh picked up the rifle of Jitendra Choudhary and touching his body said, "He is dead, let us take to our heels". It may be mentioned here that the two girls referred to in the Fardbeyan or FIR are Premlata Choudhary (PW 1) and Sobha Choudhary (PW 2), sisters of the deceased Jitendra Choudhary.3. After investigation by PW 9, the chargesheet was submitted against all the appellants and they were put up for trial. The prosecution examined as many as 9 witnesses, of whom PWs 1, 2, 3 and 8 were eyewitnesses. The defence of Hare Krishna Singh was that he was going to Patna along with the appellant Ram Kumar Upadhaya and one Madan Singh in a rickshaw and when the rickshaw reached near the shop of Sita Ram, he received a bullet from behind and fell down. He looked back and saw that one Dipu Prasad and Ram Lal were firing. He also saw the deceased Jitendra Choudhary, Chhatu Choudhary and Lallan Rai (PW 8) firing from the eastern gate of the hospital. He examined five witnesses, DWs 1 to 5, to prove the nature of injury sustained by him.4. The defence of Paras Singh of Dhobaha was that he had not visited the village Dhanpura for the last fifteen years. The defence of other appellants is also a denial of their complicity in the crime.5. The learned Additional Sessions Judge, after an elaborate discussion and analysis of the evidence adduced on behalf of the parties, accepted the prosecution case and convicted and sentenced the appellants as mentioned above. Regarding the injury sustained by Hare Krishna Singh, the learned Additional Sessions Judge was of the view that such injury had been deliberately introduced by him and held that he was not injured in the occurrence. On appeal by the appellants, the High Court affirmed their convictions and sentences. Hence these appeals by special leave.

Reasoning:
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.