Case: Hare Krishna Singh &amp; Others Versus State Of Bihar Versus State Of Bihar Vs.

These appeals are directed against the judgment of the Patna High Court affirming the order of the First Additional Sessions Judge, Arrah, convicting all the appellants under Section 302/34IPC and Section 27 of the Arms Act and sentencing each of them to rigorous imprisonment for life and rigorous imprisonment for three years respectively and further convicting the appellant Hare Krishna Singh under Section 379IPC and sentencing him to rigorous imprisonment for three years; all the sentences are to run concurrently. The accused included two persons having the same name Paras Singh. one of village Dhobaha, brother-in-law of Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982, and the other of village Birampur and nephew of Jagdish Singh, the appellant in Criminal Appeal No. 616 of 1982. We shall hereinafter refer to the said two persons as Paras Singh and Dhobaha and Paras Singh of Birampur respectively2. 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 brother-in-law 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) brother-in-law 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 Choudhary3. After investigation by PW 9, the charge-sheet 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 eye-witnesses. 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 him4. 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 crime5. 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: Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is, not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accusedIn the circumstances, we do not think that the materials on record including the statement of Hare Krishna Singh under Section 313 CrPC, Probabilise any case of self-defence or that the deceased had inflicted on him the injury by firing at him from his rifleWe 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 aboveIn 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 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 sustainedCommon intention under Section 34IPC 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 eye-witnesses, 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