Sahni & Ors Vs. State of Bihar  Insc 341 (13 August 2002)
C. Banerjee & Y.K. Sabharwal. Banerjee,J.
trite to record that in the normal course of events the apex Court would not
re-appreciate or effect a further scrutiny of the evidence on record. We,
however, hasten to add here that this is not a rule steadfast or an inevitable
practice flexibility in the administration of justice stands out to be the
hall-mark in our justice delivery system. The requirement of the situation
stands out to be a basic tenet in the Indian jurisprudential system and the
approach being justice oriented the interest of justice would prompt this Court
to rise to the occasion and thus there being a rule steadfast of not
appreciating the evidence would not arise miscarriage of justice or perversity
would prompt even the apex Court to go into the matter since technicality ought
not to outweigh the course of justice.
issue in the contextual facts falls for determination is whether in fact there
has been such a miscarriage warranting intervention of this Court and as
contended to alter the sentence of 302 read with Section 149 IPC to 304 Part II
read with Section 149 IPC the issue no doubt needs a detail scrutiny of
evidence on record but the nature of injuries, the medical evidence and the
eye- witnesses account do not however lend much credence to such a submission
in the matter under consideration.
however at this juncture briefly advert to the factual backdrop. The facts
reveal the prosecution case as below:
8.5.84 at about 11.30 p.m. informant Munar Mahto (PW8) went to Tariyani Chowk
Police Station within the district of Sitamarhi and lodged an FIR (Ext. 3)
stating therein that on the same day at about 3.00 p.m. he along with his
father Gajar Mahto, uncle Bitin Mahto, Ram Bilas Mahto (PW 4) and Ram Chandra Mahto
(PW2) had gone to Turki Bazar.
Jiva Lal Sah and Gagandeo Sah had also gone to Turki Bazar and in the market
where ever the informant and his men went they both kept watch on them after
staying at some distance. After marketing when the informant and his men
started for their house, appellants Jiya Lal Sah and Gagandeo Sah proceeded
ahead of them. When the informant and his men reached a village foothpath,
going towards Ladaura Mahinwara near the field of one Bharat Singh in Nandna Sareh
situated at village Kumhrar, all of a sudden all the appellants came from a
maize crop field and started assaulting the father of the informant who was
going ahead of the informant and his remaining companions. Appellant Gagandeo Sah
and Mahadeo Sahni ordered their companion to kill all even if their lands were
sold and on this instigation appellant Rajendra Sahni started assaulting the
father of the informant with a lathi and appellant Naga Sahni with a Dabiya (a
sharp cutting weapon). When Bitin Mahto, uncle of the informant, tried to
rescue the father of the informant he was assaulted by appellant Gagandeo Sahni
with a Garasa and he, after receiving injuries, fell down. Appellant Bachu Sahni
thereupon started assaulting the father and uncle of the informant with a 'Phatha'
(bamboo stick) and appellant Shyam Nandan Sahni started assaulting the uncle of
the informant with a dagger.
Rajan Sahni and Binod Sahni by putting lathis on both sides of the neck of the
father of the informant pressed their lathis and remaining appellants started
indiscriminately assaulting the father and uncle of informant with lathis
saying that when they had identified them they would finish them. Informant,
Ram Chandra Mahto (PW2) and Ram Bilas Mahto (PW4) out of fear were watching the
occurrence from some distance. It was a moonlit night. When the informant
raised hulla villagers namely, Mitan Mahto, Phul Shankar Mahto (none of them
examined), Ram Ekbal Mahto (PW6) and Mohan Mahto (PW5) replied that they were
coming and after hearing their replies the appellants fled away but appellant Musafir
Sahni was caught and he was assaulted by the mob who had caught him. The
informant found that his father and uncle had died.
post-mortem report as is available on record as regards the injuries sustained
by Jagdish Mahto and who eventually succumbed to the same read as below :
Lacerated wound 1 " X 1/3" scalp deep on left side of occipital
Lacerated wound 1 " X " X scalp deep on left side of occipital
Incised wound 1 " X " X scalp deep on left side of forehead.
Lacerated wound 1 " X 1/3" scalp deep on left parietal region.
Incised wound 1" X 1" X scalp deep on left temporal region behind
Lacerated wound 1 " X " X scalp deep on left temporal region behind
Lacerated wound 2" X " X scalp deep on left side of occipital region.
Bruise 3 " X " on back of left side of chest.
Bruise 4 1/2" X 1" on back of left side of chest.
Bruise 4" X " on back of right side of chest.
Bruise 2" X " on back of right side of chest.
Dr. Bishwanath Bijoria, who happened tobe PW 3 conducted the post-mortem
examination of Jagdish Mahto not only found the above injuries on the dead body
but also categorically recorded that injury Nos. (iii) and (v) were caused by a
sharp cutting weapon which may be 'Chhura' or 'grasa' and remaining injuries
were caused by hard blunt substance which may be lathi or 'phtha' and time
elapsed since death was within 36 to 60 hours approximately. He has stated that
rigor mortis was absent and death was caused by shock and hemorrhage due to
regards the Gajar Mahto, the post-mortem report indicates the following ante-mortem
injuries :- (i) Incised wound 2"X "X1/4" just below chin.
Lacerated wound 1 "X1/3"X1/4" on the right side of the chin.
Lacerated wound 1"X1/4"X " on the right side of mandible area
below right angle of mouth.
Incised wound " X 1/5" X 1/5" on the right side of mandible
Lacerated wound 1 " X " X scalp deep on mid parietal region.
Lacerated wound 1 " X " X scalp deep on occipital region.
Lacerated wound 1 " X " X " at cleft between ring finger and
middle finger of right hand.
Bruise 3 " X " on lower part of front of left side of chest.
Bruise 4" X 1" on lower part of chest and upper part of abdomen.
Bruise 1 " X 1" just right side of chest in front region.
Bruise 3" X " on anterior surface of right thigh.
Bruise 2" X " on anterior surface of right thigh.
Bruise 3 " X 1" on mandible side of left thigh.
Bruise 1 " X " in front of neck.
the self-same doctor who conducted the post-mortem examination also recorded
that the aforesaid injuries, injury Nos.
and (iv) were caused by a sharp cutting weapon which may be a dabia and rest
injuries were caused by hard blunt substance which may be lathi and bhala and
time elapsed since death was 36 to 46 hours approximately. Rigor mortis was
absent and death was caused by shock and hemorrhage due to aforesaid injuries.
medical evidence as is available on record does support the case of the
prosecution that both the deceased died of injuries caused by weapons such as
dagger, garasa and dabia as also by some hard blunt substance which may be in
the category of lathi and phatha.
advocate appearing in support of the appeals has been rather eloquent in his
contentions that the prosecution has failed to establish as to who among the
accused persons had struck the fatal blow resulting in the death of the
deceased and observations of the learned Sessions Judge has been taken recourse
to in support of such a contention, which we will presently refer to and for
convenience sake, the same is set out below:
this case the evidence of doctor does not disclose that which of the injuries
inflicted over the persons of victims was independently sufficient to cause
death in ordinary course of nature. Rather his evidence went to reflect that
the victim died due to shock and haemorrhage due to accumulative affect of the
injuries on the victims. There is no evidence to that effect that all the
accused persons had common intention to commit murder of the two victims. The
evidence on record went to reflect that the mob constituting unlawful assembly
was aware of the fact that they were armed and it may result in dreadful
consequences as well. In this view of the matter I find that there is no
evidence to conclude that all the accused persons were independently guilty of
murder as required under Section 302 IPC under which all the accused persons
stand charged. As such in my opinion, charge under section 302 IPC framed by my
learned predecessor against all the accused persons does not stand substantiated
by the evidence on record as our discussions have shown. As such the accused
persons will get exoneration of direct charge under section 302 IPC.
the evidence on record goes to reflect that all the accused persons had
intended to cause severe injuries by infliction of blows by their respective
deadly weapon which may led to dire consequences and infliction of injuries by
some of the accused persons with deadly weapons like dagger, dabia, garasa and lathis
accumulatively resulted in the death of two victims on the spot. The evidence
lead by the PWs that accused Binod and Rajan had killed Gajar by pressing his
neck in between two lathis by strangulation is not substantiated by the
evidence of doctor. If that would have been proved by the evidence of the
doctor certainly the fate of both these accused persons would have been quite
different and they would have been held guilty of direct charge under section
302 IPC. In view of the evidence it transpires that all the accused persons
jointly jumped upon the two victims and severe blows at the bands of some of
the accused persons with deadly weapon contributed to the commission of murder
of the 2 victims and murder resulted in consequence of the total blows
amounting to accumulative effect of the injuries over the victims. So from the
evidence it becomes conspicuous that some of the accused started with their
respective weapons in prosecuting their common object of doing way with the
lives of the victims committed the murder of two victims. As such their acts
and performance and all warrant the application of section 302 IPC read with
149 IPC and all the accused persons stand charged under section 302/149 IPC as
well." It is on the basis of the aforesaid the Learned Sessions Judge
returned a verdict of guilt and sentencing all the appellants to undergo life
imprisonment under Section 302 read with Section 149 Indian Penal Code.
Appellants Gagandeo Sahni, Shyam Nandan Sahni and Naga Sahni have further been
convicted and sentenced to undergo rigorous imprisonment for 3 years under
Section 148 IPC and the remaining appellants have further been convicted and
sentenced to undergo rigorous imprisonment for 2 years under Section 147 IPC.
it is this conviction and sentence which stands confirmed by the High Court and
hence these appeals before this Court.
decision of this Court in Ramkishan & Ors. v. State of Rajasthan [1997 (7)
SCC 518] has been sheet-anchor for the appellants herein with the reasoning
that this Court ought to come to a conclusion that the offences, if any, in the
facts and circumstances of the matter in issue would only fall under Section
304 Part II read with Section 149 IPC and not under Section 302 IPC. We are,
however, unable to record our concurrence therewith. It is in this context the
observations of this Court in Ramkishan (supra) would be of some relevance.
This Court in paragraphs 3 to 7 stated as below :- "3. The trial court
found that there were two sets of accused in the case, one set belonging to Kumhar
caste while the other belonging to the Gujar community.
appellants belong to the Gujar community. The trial court found that the
evidence of the eyewitnesses who had implicated not only the appellants but
also five others belonging to the Kumhar caste could not be believed fully and
consequently gave benefit of doubt to the five accused belonging to the Kumhar
caste and acquitted them.
trial court after appreciating the evidence, in the case of the appellants,
opined that there was no evidence on the record to show any pre-meditation on
the part of the appellants. It was also concluded that the prosecution had
failed to establish as to who among the 10 accused, had struck the fatal blow
resulting in the death of Bhura. The learned Sessions Judge further observed
that "it remains a mystery who the killers of Bhura are". This
observation was made in the context of as to who had caused the fatal injuries,
particularly when according to the prosecution case itself none of the
appellants was armed with a lathi and the deceased had suffered a few
blunt-weapon injuries. We find that the prosecution has established the
complicity of the appellants with the crime but the question, however, is about
the nature of offence committed by them.
Dealing with the actual assault, the learned Sessions Judge has observed :
Bhura and Ramphool had broken the leg of Ranjita and they were going to 'Foota Dungar'
in bullock cart to fetch wood from there, the Gujar accused must have intended
to attack them by obstructing the cart and inflicting injuries to them in that
situation." (emphasis ours) The trial court went on to observe :
sufficient evidence is not available regarding the fact that all the five
accused were involved in causing the death of the deceased Bhura and that all
the five accused had come out from one 'pole', it cannot be said that they had
formed an unlawful assembly to kill the deceased Bhura before the incident. But
after the start of 'marpit' they (accused) inflicted grievous hurt (to)
deceased Bhura." So far as the recoveries are concerned the trial court
rightly did not believe the same and observed :
have, therefore, no hesitation to conclude that all the ten accused were
arrested on 5.11.1981 and that the evidence regarding their arrest on 21.11.1981,
and disclosure statements and recoveries of weapons on 22.11.1981 is all
fabricated and false. The IO seems to have acted in this manner in his zeal to
strengthen the prosecution case." 6 However, in spite of recording all the
above findings, the trial court still convicted the appellants for offences
under Section 302 IPC and Section 148 IPC and the High Court also confirmed
their conviction and sentence. In our opinion the approach of both the courts
below on the question of nature of offence was faulty and erroneous.
the basis of the findings of the learned trial court, as noticed above, it is
quite obvious that the intention of the appellants could only have been to
cause injuries to the deceased by obstructing his bullock cart and they did not
share any common intention or object to cause the death of the deceased.
Instead by causing injuries with an axe it could be said that the appellants
should have realised that the injuries were likely to cause his death but that
would only bring the case of the appellants under Section 304 Part II IPC and
not one under Section 302 IPC." Unfortunately, however, in the matter
under consideration, there is no factual support for bringing in Section 304
Part II instead of Section 302 and there exists, by appreciation of evidence, a
definite finding that the prosecution has succeeded in establishing the charges
under Section 302 read with Section 149 IPC and accordingly all the accused
persons were so convicted and in addition thereto accused Gagandeo Sahni, Shyam
Nandan Sahni and Naga Sahni were convicted under Section 148 IPC while the
other accused Rajendra Sahni, Mahadeo Sahni, Siyaram Sahni, Rajan Sahni, Ram Binod
Sahni, Bachu Sahni, Mangal Sahni, Lalan Sahni, Jiyalal Sah, Gagandeo Sah and Mosafir
Sahni were convicted under Section 149 IPC. The High Court as the first Court
of appeal dealt with evidence scrutinised it and upon such appreciation and
scrutiny recorded its finding in concurrence with that of the learned Sessions
Judge and it is by reason of specific plea raised in support of the appeals, we
did in fact examine the evidence relied upon and said to be warranting an
alteration of charge and consequent reduction of sentence, but we are afraid
there cannot possibly be any concurrence therewith on the available materials
noted that in the Sessions Trial there were a total of 14 accused persons who
stood convicted by the Sessions Judge, Sitamarhi and 6 of the 14 accused moved
the High Court in appeal, which stands dismissed. Significantly, however,
during the pendency of the appeal before the High Court, appellant No.2 Siyaram
Sahni and appellant No.6 Lalan Sahni passed away, the appeal in High Court thus
stood abated as against the above-noted appellants. The factum of abatement of
appeal as regards the above named two accused persons, however, has not been
dealt with nor mentioned in the judgment of the High Court. We, however, think
it fit and appropriate to record such abatement. Be it also noted that the
appellant No.9 herein, Bachu Sahni also passed away during the pendency of the
appeal before this Court on 14th July, 2001. The appeal against appellant No.9
thus also stands abated.
result the appeals fail and stand dismissed. The appellants herein are to serve
out the remaining portion of the sentence.
SINGH & ORS. VS NAGA SINGH & ORS.