Kabari & Ors Vs. State of Bihar  Insc 634 (4 December 2001)
Banerjee & Y.K. Sabharwal Y.K. Sabharwal, J.
Criminal Appeal No.873 of 2000]
case relates to murder of three persons in a faction ridden village which had
seen several murders. On the date of occurrence at about 10 a.m. there was murder of Naseeb Kabari. According to the
case of the prosecution, the accused persons were part of an unlawful assembly
of about 50 persons and were armed with deadly weapons like gun, bhala, farsa
and garasa. In prosecution of their common object, they caused death of Shital
Singh and Ram Sewak Singh, who along with one Khattar Singh was believed by the
unlawful assembly to be responsible for murder of Naseem Kabari.
Singh and Shital Singh are cousin brothers. According to the prosecution, they
were both assaulted by means of farsa by accused Bhikhar Raut. Accused Deep Narayan
Singh cut the neck of Ram Sewak Singh while accused Israil Kabari assaulted
with the bhala on the abdomen of Shital Singh. Both died instantaneously.
Thereafter the unlawful assembly went to the house of Khattar Singh and,
according to the prosecution, accused Tarni Prasad Singh, Bhikhar Raut and Tahir
Kabari snatched his son Santosh Kumar Singh aged about three years from the lap
of the wife of Khattar Singh. He was taken away and on the next day, Santosh
Kumar Singh was found murdered and his dead body was found buried in a paddy
field from where it was recovered by the Investigating Officer.
persons were placed on trial having been charged under Sections 302/34 and 148
of the Indian Penal Code (`IPC' for short) for intentionally and knowingly
causing the death of Ram Sewak Singh, Shital Singh and Santosh Kumar Singh in
furtherance of their common intention. They were also further charged under
Sections 449 and 380 IPC. Accused Israil Kabari was separately charged under
Section 302 IPC simpliciter for murder of Shital Singh. Deepan Singh @ Deep Narayan
Singh was also separately charged for murder of Ram Sewak Singh. Bhikhar Raut, Tahir
Kabari and Tarni Prasad Singh were also charged under Section 302/34 IPC for
murder of Santosh Kumar Singh.
17 accused, two, namely, Jahuri Raut and Hakim Kabari were acquitted by the
Sessions Court. Deepan Singh @ Deep Narayan Singh died when the appeal was
pending in the High Court and so also the accused Nirsu Narayan Singh. Bhulla
Bind did not challenge conviction and sentence imposed on him by the Sessions
Court. The plea of alibi of accused Mod Narayan Singh was accepted by the High
Court resulting in his acquittal. The remaining accused are appellants in these
the two accused, who were acquitted, the rest were convicted for offence under
Section 302/34 IPC for causing death of Ram Sewak Singh and Shital Singh. Bhikhar
Raut, Tahir Kabari and Tarni Prasad Singh were also convicted for offence under
Section 364 IPC. They were, however, not found guilty of offence under Section
302/34 IPC for the murder of the child Santosh Kumar Singh on the finding that
nobody has actually seen them committing his murder. As already stated, dead
body of Santosh Kumar Singh was found in a paddy field on the next day. The
Sessions Court found that the child had been kidnapped from the lap of his
mother for which these three were found guilty. All, except those who were
acquitted, were also convicted for offence under Sections 148 and 149 IPC. All
the accused persons were acquitted of the charge under Section 380 IPC. Those
found guilty of offence under Section 302/34 IPC were directed to undergo
imprisonment for life and rigorous imprisonment for three years for offence
under Section 148 IPC and 10 years for offence under Section 449 IPC. Bhikhar Raut,
Tahir Kabari and Tarni Prasad Singh were also sentenced to undergo rigorous
imprisonment for 10 years for offence under Section 364 IPC.
Sessions Court based the conviction mainly on the evidence of PW-1 and PW-8.
PW-1, Deopari Devi is widow of Ram Sewak Singh and PW-8, Ramadhar Singh who was
aged about 14 years at the time of occurrence is son of Shital Singh. PW-2 is
the mother of Santosh Kumar Singh from whose lap, the three accused took away
the child. The Sessions Court based the conviction for offence under Section
364 mainly upon the testimony of PW-2 Pawan Devi, PW-4 Nandini Devi and PW-5 Ramashish
High Court has confirmed the conviction and sentence awarded by the Sessions
court except that of Mod Narayan Singh, as already stated. The judgment of the
High Court is based primarily on the testimony of PW-1 insofar as the
conviction of the accused for the murder of Ram Sewak Singh and Shital Singh is
concerned. In respect of PW-8, the High Court expressed doubts about his
presence in the house on the ground that he being a school student and it
having not been proved that he was not in school and also that PW-1 had not
deposed about his presence and he did not mention the name of PW-1 in his fardbayan.
The conviction for offence under Section 364 IPC was confirmed as a result of
the acceptance of the testimony of the mother of the child and also other
witnesses as noticed hereinbefore.
counsel for the appellants contends that there is no evidence whatsoever for
conviction of the appellants and the High Court having found the presence of
PW-8 doubtful ought to have acquitted all the appellants instead of confirming
their conviction on the solitary statement of PW-1.
is widow of the deceased Ram Sewak Singh. She has given graphic account of the
occurrence. Ram Sewak Singh and Shital Singh had common courtyard. She was
cooking food in her kitchen at about 11 a.m. when the incident happened. She saw them going to the courtyard of Sarjug
Singh which was contiguous. She gave detailed account of how Israil Kabari
pierced bhala in the abdomen of Shital Singh and how Bhikhar Raut assaulted
both of them with farsa and how Deepan Singh @ Deep Narayan Singh had cut the
neck of her husband. Deepan Singh is already dead. She is a natural,
trustworthy, reliable and competent witness. She saw the occurrence. Her
deposition is consistent with the course of events and conduct natural with
that of a wife. It is true that if the presence of PW-8 is doubtful, it becomes
a case of conviction based on the testimony of a solitary witness. There is,
however, no bar in basing conviction on the testimony of solitary witness so
long as the said witness is reliable and trustworthy. The Sessions Court and
the High Court examined the testimony of PW-1 and found no reason to disbelieve
it. We have also gone through the testimony of PW-1. We are also of the view
that her deposition is most natural, reliable and trustworthy. She could not be
shaken in the cross-examination. Simply because 14 years' old boy did not name
her in the fardbayan, in the facts of the case, is of no consequence and does
not require her evidence to be rejected. He must have been under a mental
tension on account of the murder of his father and uncle. In our view, there is
no infirmity in the conviction and sentence of Bhikhar Raut and Israil Kabari
for offence under Section 302/34 IPC.
as other appellants are concerned, the finding of the High Court is that there is
no specific allegations against them. There is no evidence whatsoever to
establish that any criminal act was done by them in furtherance of a common
intention. As above noticed, there were about 50 persons. Nothing was shown
before the Sessions Court or the High Court or even before us to establish
common intention of the remaining accused. The common intention is different
than the common object. The charge against them is not under Section 149 IPC.
Even otherwise, it was not shown that the ingredients of Section 149 had been
established. There is total absence of evidence both in respect of Section 34
as well as Section 149 IPC. Therefore, it is not possible to confirm the
conviction of the appellants other than Bhikhar Raut and Israil Kabari.
regard to the incident of kidnapping of Santosh Kumar Singh, we find that on
appreciation of evidence, the three persons abovenamed were rightly convicted
under Section 364 IPC. Their conviction was rightly maintained by the High
Court. It is based on the testimony of the mother of Santosh Kumar Singh from
whose lap the child was kidnapped and also the testimony of other witnesses
(PWs-4 and 5). We find no merit in the contention that three persons could not
have been convicted for kidnapping of a three year old child. Bhikhar Raut, Tahir
Kabari and Tarni Prasad Singh have been rightly convicted and sentenced for
offence under Section 364 IPC.
foregoing reasons, we partly allow the appeals and set aside the conviction of
the appellants other than Bhikhar Raut and Israil Kabari for offence under
Section 302/34 IPC. The appeals of Bhikhar Raut and Israil Kabari are, however,
dismissed. The conviction of Bhikhar Raut, Tahir Kabari and Tarni Prasad Singh
under Section 364 IPC is maintained and their appeals challenging that
conviction are dismissed. All the appeals stand disposed of in the above terms.