Ganga Ram Sah & Ors vs State Of Bihar

The case of the prosecution, which has been successfully established before the trial court as well as the High Court, is as follows:

2. After investigation, the police submitted final chargesheet implicating all five persons named in the FIR, as accused. The trial court framed the charges against them under the aforesaid provisions. To prove these charges, the prosecution examined 15 witnesses altogether. Out of the aforesaid 15 witnesses, Uday Chandra Sah (PW-1), Bauku Sah (PW-2), Anar Devi (PW-3), wife of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother of the deceased, Ful Kumari (PW-8) and the informant Yogendra Narayan Sah (PW-

The defence version of the appellants before the trial court was that they have been falsely implicated in the P.S. Case No.33 of 1983 as they had lodged a complaint case against the prosecution party bearing No.338(C) of 1983 for an occurrence of same date under Sections 147, 148, 149, 323, 324, 352 and 380 of the IPC filed against the prosecution party wherein cognizance has been taken. As a matter of fact, accused Ram Chander Sah took the plea of alibi saying that he was being treated for Jaundice by Dr. J.K. Thakur, at Laheriasarai between 24.06.1983 to 10.07.1983 and therefore on the day of occurrence, he was not present in the village.

On defence side also, eight witnesses were examined. These witnesses included one Dr. Gajendra Prasad Thakur (DW-7), a medical practitioner of Laheriasarai. After the trial was over, the learned Additional Sessions Judge after analysing the evidence and material produced before him came to the conclusion that charges against the accused persons had been satisfactorily proved by the prosecution. Ram Chandra Sah was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 IPC and rest of the accused persons were also sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/109 IPC.

We are not convinced with the aforesaid arguments. It may be mentioned that the FIR was registered on the basis of fardbayan given by the informant Yogendra Narayan Sah immediately after the incident. There is no time lag between the incident and the FIR. In the said FIR, both appellant Nos. 1 and 3 are specifically named. Insofar as appellant No.1 is concerned, specific allegation is made in the FIR that it was the exhortation of appellant No.1 which led to the said assault. Accused Ram Chandra Sah fired two gun shots hitting Ram Udgar Sah (brother of the informant) which caused instant death. Two other eye-witnesses, namely, PW- 1 and PW-2 have also specifically given the statement to this effect, thereby supporting the version of the prosecution. These witnesses were cross-examined at length but their testimony could not be shaken. Presence of Ganga Ram Sah at the scene of occurrence has not been denied. The role attributed to him, therefore, stands proved, as rightly held by the trial court as well as the High Court.

Here the accused persons had gone to the house of the complainant fully armed with gun and lathis. This visit was preceded by a scuffle which had taken place just before that. One person was carrying gun whereas others were armed with lathis. The moment they reached the house of the complainant, who was there with his family members, appellant No.1 directed others to attack the victims party. On this exhortation, Ram Chandra Sah pulled his gun and shot twice at Ram Udgar Sah. Other accused persons started assaulting Uday Chandra Sah who sustained wounds on his chest, neck and face. They also assaulted the complainant as well his brother Uday Chandra Sah with lathis. Complainant sustained injuries on the right side of the head and right hand whereas Uday Chandra Sah sustained injuries on his head and had to be carried to hospital for treatment. All these acts and events taken together proved beyond doubt that the common object of the unlawful assembly was not only to cause grievous hurt but to kill the members of the opposite camp. The aforesaid judgment, therefore, does not apply to the facts of this case.

It is trite law that the common object of the unlawful assembly has to be inferred from the membership, the weapons used and the nature of the injuries as well as other surrounding circumstances. Intention of members of unlawful assembly can be gathered by nature, number and location of injuries inflicted. In the instant case, repeated gun shots fired by Ram Chandra Sah on the person of deceased Ram Udgar Sah, and the injuries caused by lathis by other accused persons on the complainant and his second brother on their heads, clearly demonstrate the objective to cause murder of these persons. We, thus, do not find merit in this appeal which is, accordingly, dismissed.

JANUARY 27, 2017.

(1981) 2 SCC 755 [2] 1993 Supp (2) SCC 534