Shiva Shankar
Pandey & Ors Vs. State of Bihar [2002] Insc
381 (9 September 2002)
S. Rajendra
Babu & P. Venkatarama Reddi. P.Venkatarama Reddi, J.
These
appeals are by special leave against the judgment of Patna High Court in two
criminal appeals, which were dismissed by the High Court, thereby upholding the
conviction by the trial Court. Eight persons including the seven appellants herein,
were charged of murdering one Mangalanand Pandey on 18.10.1993. Accused Nos. 2,
3, 5 to 8 are the appellants in Criminal Appeal No. 817 of 2000. Accused No.4
is the appellant in the other appeal. The Special Leave Petition in so far as
the accused No.1 Dinesh Pandey, who actually killed the deceased with the shots
fired by him, was dismissed by this Court. The said accused was convicted under
Sections 302 and 341 I.P.C. and Section 27of the Arms Act. The remaining seven
accused, who are appellants herein, were convicted under Section 302 read with
Sections 149 and 341 I.P.C. and sentenced to undergo life imprisonment.
The prosecution
case is that on 18.10.1993 at about 5.45 a.m. the deceased Mangalanand Pandey and his brother Ranganath Pandey (PW 2)
were putting up a `machan' (a bamboo platform for holding vegetable creepers)
at a place adjacent to the `dalan' of their house towards the West. The 'dalan'
and the cow shed of the appellant Ram Pravesh Pandey was adjacent to the land
where the `machan' was being erected. The eight accused came there and started
abusing the deceased and PW 2. At that juncture, the son of the deceased by
name Ram Bachan Pandey PW 10 together with his grand father went to the place
and advised the accused - appellants not to pick up quarrel. The accused were
in the posture of assaulting them. All the three went running to the house of
deceased and closed the doors. The accused followed them to the doorway of the
house and continued abusing them. Then PW 10 and the deceased shifted to the
roof of the house for safety. Thereafter, the accused excepting Mithilesh Pandey
and Ramkeshwar Pandey also got into the roof of the house of Sriniwas Pandey
(A-4) and started pelting stones and brickbats to hit the deceased and his
companions. Mithilesh and Ramkeshwar remained in the lane nereby and continued
abusing. While so the appellant Srinivas Pandey fetched a rifle from his house
and gave it to Dinesh Pandey who fired at the deceased causing injury on the
upper portion of his left arm. Then, the deceased together with others came
down. The injured person (deceased) was put on a cot and he was being taken by
PW 10, PW 2, PW 9 and one Ranganath Tiwari (not examined) for treatment. At
about 7.15 a.m., when they came past the `dalan' of Ram Narayan Pandey (PW 7),
the accused, armed with lathis, gandasas and rifles, were rushing towards them
uttering the words -`Maro salon ko'.
Seeing
them PW 10 and his party fled, keeping the cot on which the injured victim lay,
in front of the house of PW 7. PW 10 ran inside a room located near the 'dalan'
of Ram Narayan Pandey and started watching the incident through the window. The
uncle PW 2 ran towards the village. However, Ranganath Tiwari (not examined)
and PW 9 remained there at some distance. Dinesh Pandey (whose SLP was
dismissed) fired at the deceased who was lying unconscious on the cot.
The
appellants Srinivas Pandey and Ram Pravesh Pandey exhorted the accused Dinesh
to fire again saying that the victim was still alive.
Dinesh
then fired two or three more shots before the accused dispersed. The victim
died instantaneously. At about 9.30 a.m. the
Sub- Inspector of Police - PW 11 reached the place and recorded the 'Fard Bayan'
of PW 10 which is treated as F.I.R. (Exhibit 3). PW 11 inspected the two places
of occurrence, seized blood stained earth, brick bats, remains of cartridges
etc. and prepared the inquest report. The dead body was sent for post-mortem.
The autopsy was conducted by the Medical Officer of Sadar Hospital PW 4 on the
same day evening. PW 12 filed the charge sheet. The Additional Sessions Judge Rohtas
held the trial after committal and found the accused guilty of the offence with
which they were charged.
The
post-mortem report coupled with the deposition of PW 4 reveals that there were
lacerated wounds at four spots, namely, posterior lateral aspect of left upper
arm resulting in fracture of left humerus, lacerated wound over the right side
of 8th inter costal space resulting in the fracture of three ribs and manubrium
sterna, lacerated wound on the upper arm right side causing fracture of mid
part of humerus and lacerated wound on the left leg mid - part causing fracture
of tibia and fibula. The first and second wounds had corresponding circular
wounds. Doctor opined that the deceased must have died on account of shock and haemorrhage
produced by the above injuries caused by fire arm. In the face of the medical
evidence, it is contended that the version of the prosecution cannot be true
for two reasons, firstly, the Doctor noticed blackening around the upper left
arm where the first injury was caused and the blackening would not have
occurred unless the shot was fired from a close range, whereas, according to
the proscecution, the accused Dinesh Pandey fired the first shot from the roof
of the adjacent house. Secondly, according to the Doctor, the first injury on
the upper left arm would have resulted in profuse bleeding at the place where
the deceased was shot.
However,
the I.O., P.W. 11, did not state that he found any blood stains on the roof of
the house or the steps of the staircase. Moreover, no blood was found on the
cot on which the deceased was alleged to have been laid after coming down from
the roof. It is then commented, based on the statement of the Doctor in cross-examination,
that the deceased might have gone into shock and fell down at the very spot
where he sustained the first injury and therefore, the theory of the deceased
getting down the steps cannot be true. The High Court and trial Court examined
all these aspects and negatived these contentions. The High Court observed that
the distance between the two houses was very short i.e. 3 cubits and,
therefore, the possibility of blackening cannot be ruled out. The High Court
referred to the statement of the I.O. that he found blood at the stairs as well
as 'Osara' (front portion of the house) and observed that the mere fact that he
did not find blood marks on the roof or steps does not go against the
prosecution case. As far as victim walking down the staircase after receiving
the injuries, the trial Court adverted to that aspect and observed, relying on
the text books on medical jurisprudence, that the injured managing to walk some
distance cannot be ruled out. We do not think that the factum of I.O. not
recording the presence of bood stains on the roof and the cot is very material.
They could as well be attributed to the omissions in the investigation which do
not belie the prosecution evidence substantially.
None
of the above contentions advanced by the learned counsel for the appellant,
therefore, merit acceptance.
Coming
to the eye witnesses, the trial Court believed the evidence of PW 3 wife of the
deceased, as far as the first part of the incident is concerned but was not
inclined to place reliance on her evidence vis-a- vis the final attack on the
deceased. The trial Court disbelieved the evidence of PW 2. The evidence of PW
10, the informant and PW 1 was accepted by the trial Court as well as the High
Court. The High Court believed the evidence of all these eye witnesses in toto.
It is contended before us that the eye witnesses whose evidence was accepted
are closely related to the deceased and independent witnesses whose presence at
the spot has been established were either not examined or they were tendered.
This, according to the learned counsel for the appellants, makes it unsafe to
act on the testimony of these interested witnesses, especially in the
background of enmity between the deceased and the accused party. This
contention on deeper scrutiny does not hold good. Amongst independent
witnesses, only Ranganath Tiwari was not examined. However, PW 9 Satyendra Pandey,
who allegedly carried the cot of the victim, was examined; but, the prosecution
tendered him for cross-examination by the accused.
So
also, PW 7 Ram Narain Pandey, at whose house the cot was left out after seeing
the accused and in whose house PW. 10 had hidden, was examined, but he turned
hostile. At the same time, he gave certain details of attack. As commented by
the trial court after referring to various aspects, the possible witnesses were
apparently won over by the accused. In these circumstances, the kith and kin of
the deceased have become the main witnesses. Their presence at the time and
place is quite natural and cannot be doubted. True, their evidence has to be
scrutinized with greater caution especially in the background of enmity that
gripped the two factions. Viewed in this light, it cannot be said that the
trial Court and the appellate Court have committed any error in coming to the
conclusion, based on the evidence of PW 10 (son of the deceased) and PW 3 (wife
of the deceased) that the deceased was fired at by Dinesh Pandey in the company
of some of the accused. It appears to us that the prosecution case is broadly
true, though in regard to implication of many of the appellants as members of
unlawful assembly, the said prosecution witnesses have come forward with a
version which gives room for doubt. That aspect will be discussed later.
As far
as PW 1 is concerned, there is considerable force in the comment of the learned
counsel for the appellant that his presence was highly improbable. PW 1 who was
returning from his field was supposed to have halted at the place of occurrence
(in front of Ram Narain Pandey's house) and observed the details of occurrence
at close quarters, undeterred by the commotion and the risk of being assaulted
by the accused party. PW1's evidence ought to have been doubted for that
reason. Even eschewing the evidence of PW 1, the evidence of PWs 10 and 3 is
still there to support the main part of the prosecution case.
Whether
the conviction of all or any of the appellants for the offence of murder can be
sustained by invoking Section 149 IPC is the next question which has been
vehemently argued before us. The anatomy and ingredients of Section 149 have
been laid bare and its functional parameters set down in a series of
pronouncements of this Court. Vicarious liability of the members of unlawful
assembly arises where the offence is committed by another member or members of
unlawful assembly if the commission of such offence is the common object of
that assembly OR if the members of the unlawful assembly knew that the offence
of the nature committed was likely to be committed though the common object may
be something different. It is worth recapitulating the exposition of law in a
recent decision of this Court in Umesh Singh vs. State of Bihar [AIR 2000 SC
2111]. One of us (Rajendra Babu, J.) speaking for the Court summarized the
scope and implications of the provision as under:
"Vacarious
liability, we may state, as rightly contended for the State by Shri B.B. Singh
relying upon the decisions of this Court in Shamshul Kanwar v. State of
U.P.[(1995) 4 SCC 430] and Bhajan Singh v. State of U.P. [(1974) 3 SCC 89]
extends to members of unlawful assembly only in respect of acts done in
pursuance of the common object of the unlawful assembly or such offences as the
members of the unlawful assembly are likely to commit in the execution of that
common object. An accused whose case falls within the terms of Section 149,
I.P.C. as aforesaid cannot put forward the defence that he did not with his own
hand commit the offence in prosecution of the common object of the unlawful
assembly or such as the members of the assembly knew to be likely to be
committed in prosecution of that object. Everyone must be taken to have
intended the probable and natural results of the combination of the acts in
which he had joined. It is not necessary in all cases that all the persons
forming an unlawful assembly must do some overt act. Where the accused had
assembled together, armed with guns and lathis, and were parties to the assault
on the deceased and others, the prosecution is not obliged to prove which
specific overt act was done by which of the accused. Indeed the provisions of
Section 149, I.P.C. if properly analysed will make it clear that it takes an
accused out of the region of abetment and makes him responsible as a principal
for the acts of each and all merely because he is a member of an unlawful
assembly. We may also notice that under this provision, the liability of the
other members for the offence committed during the continuance of the
occurrence rests upon the fact whether the other members knew before hand that
the offence actually committed was likely to be committed in prosecution of the
common object. Such knowledge can reasonably be intended (sic, inferred) from
the nature of the assembly, arms or behaviour, at or before the scene of
action. If such knowledge may not reasonably be attributed to the other members
of the assembly then their liability for the offence committed during the
occurrence does not arise.
"Though
the legal position is well settled, in its actual application to the facts of a
given case, difficulties do arise. It is not an easy task to draw a parallel
between two cases. The presence or absence of even a single material fact or
circumstance may make a world-of difference in reaching the ultimate
conclusion.
We
shall now proceed to consider whether on the facts established in this case,
Section 149 IPC should be made applicable to the accused-appellants. As seen
from the factual narration above, broadly, two incidents took place within a
time gap of about an hour or so: the first one was at the open terrace of the
house of the deceased.
The
appellants except Mithilesh Pandey and Ram Keshwar Pandey gathered on the roof
of the adjacent house of Sriniwas Pandey (appellant in Criminal Appeal No.
872/2000) and started pelting stones at the deceased and his companions. After
sometime, Sriniwas Pandey suddently brought a fire-arm from his house and
handed over to Dinesh Pandey who fired at the deceased causing injury to him on
the right scapula. The second part of the incident took place about an hour
later i.e. at 7.15 a.m. near the court-yard of Ram Narayan Pandey
(PW 7) when PW 10 with the help of PW 2, PW 9 and another person was carrying
his injured father laid on a cot, to the hospital. On noticing the accused
running towards them with offensive cries, they left the cot near the 'dalan'
of Ram Narayan Pandey and ran to save themselves.
PW 10,
the informant, hid himself in the house of Ram Narayan Pandey and he was
watching the incident from there. The accused, according to the prosecution
witnesses, were armed with lathis, gandasas and rifles/pistol. At that juncture
Dinesh Pandey (whose SLP was dismissed) fired a shot from his rifle. On
exhortation by appellants Ram Parvesh Pandey and Sriniwas Pandey, Dinesh Pandey
fired some more shots. After ensuring that the victim was dead, the accused
party retreated.
In the
sequence of events that had happened the question is whether all the appellants
proceeded to the spot of occurrence to attain the common objective of putting
an end to the life of Manglanand Pandey and the act of Dinesh Pandey in killing
the deceased with the fire-arm was only a culmination of that objective. On the
point of sharing common object the High Court quite rightly recorded a
categorical finding that the appellants did not have the common object to kill
the deceased when the incident at the roof of the house took place. The High
Court observed that when Sriniwas Pandey (one of the appellants) brought a
rifle and handed it over to Dinesh Pandey, who immediately fired at the
deceased, it could be said that none other than Sriniwas Pandey and Dinesh Pandey
shared the common intention to commit the murder. If so, did the common object
to do away with the deceased develop thereafter? On this aspect, this is what
the High Court had to say :- "It is the second part of the occurrence
which clearly suggests that all the appellants had common object to commit
murder of the deceased because when after receiving injury inflicted on the
left shoulder of the deceased by appellant Dinesh Pandey he was being carried
on a cot for treatment, all the appellants variously armed with rifle, garasa
and lathi chased him and compelled the informant and his companions to leave
the cot carrying his father near the dalan of Ram Narayan Pandey and to run
away from that place and thereafter appellant Dinesh Pandey fired one shot from
his rifle at the deceased.
Appellants
Sri Niwas Pandey and Ram Pravesh Pandey then said to the appellant Dinesh Pandey
that the deceased was still alive on which appellant Dinesh Pandey again fired
two-three shots on the deceased causing his death and thereafter all the
appellants fled away. This subsequent conduct of the appellants in chasing the
informant party when the deceased was being carried on cot for treatment
variously armed with rifle, garasa and lathi and thereafter commission of
murder of deceased by appellant Dinesh Pandey by firing from his rifle, causing
death of deceased, clearly suggests that all the appellants had common object
to commit the murder of the deceased." The above finding of the High
Court, in our considered view, is not sustainable. Having regard to the fact
that the witnesses are closely related persons and there is a history of bitter
enmity between the deceased and the accused party, as revealed from the FIR
coupled with the evidence of PW 10, we feel that the evidence of PWs 10 and 3
should have been scrutinized with greater care and circumspection as there was
every possibility of exaggeration and embellishment. Viewed in this background
and going by the state of evidence on record, a reasonable doubt arises on the
veracity of prosecution version that each of the appellants armed with weapons
went to the scene of occurrence with a view to kill or injure the victim
already injured in the cause of first incident. The prosecution evidence is to
the effect that Ram Parvesh Pandey, Vijoy Shankar Pandey, Ram Keshwar Pandey
and Awadesh Pandey were having lathis, Mithlesh Pandey and Srinivas Pandey were
armed with Gandasas, Shiv Shankar Pandey was having a country made pistol and Dinesh
pandey, the actual assailant, was armed with a rifle. Though such account was
given with an apparent precision by PWs 10 and 3 (apart from PW 1 - whose
presence is doubtful), their evidence does not inspire confidence and it only
reflects an anxiety on their part to implicate as many accused as possible. PW
10 is supposed to have observed the accused with the weapons while they were advancing
towards the prosecution party carrying the victim on the cot.
According
to PW 10, when they reached the spot near the 'dalan' of Ram Naryana Pandey,
they heard the noise 'maro maro' from behind. Then, he looked back and noticed
the accused with the weapons in their hands. However, his evidence also reveals
that as soon as they noticed the accused party chasing them, they ran for
safety leaving the cot at the spot. PW 10 further states that he hid himself in
a room adjacent to the 'dalan' of Ram Naryan Pandey. Going by this version it
is most unlikely that he would have noticed at that moment each of the accused
with weapons in their hands. Such a leisurely observation was highly improbable
and would not be consistent with the admitted course of conduct. PW 10 himself
stated that "due to fear we put the cot on the ground and I entered into a
room and my uncle ran away towards the village". Such a person stricken
with fear anxious to run for safety could not have noticed meticulously who were
all following him and which weapon each of them carried. At best, he could have
seen at a quick glance some of the accused, but not all of them. It was even
more difficult to identify each one of the weapons being carried by the chasing
party. At that juncture and distance, PW 10 could have only made a random
observation and noticed some of the accused and others advancing towards them
with some weapons which were patently visible. When that is the probable
scenario, PW 10 comes forward with a highly artificial version of having seen
each of the accused carrying a particular weapon in his hand. In this state of
things, we must find some assurance from other facts and circumstances
appearing from the evidence on record in order to fasten constructive liability
on the appellants under Section 149. But, there is none. When we take stock of
the happenings at the scene of occurrence as revealed by the evidence of PW 10
who was watching from a window of adjacent house, the active role is assigned
only to Srinivas Pandey and Ram Pravesh Pandey apart from the actual assailant Dinesh
Pandey. The first two of them are said to have exhorted Dinesh Pandey to fire.
With regard to others, it is significant to note that PW 10, or for that matter
any other prosecution witness, did not give any account of the role played by
any of them. The prosecution evidence is absolutely silent in this regard.
No
injuries other than those inflicted by fire-arm were found on the deceased. May
be, overt acts need not be there. But, the fact remains that nothing was said
about the conduct or utterances of any of the accused other than the three. If
they had seen any other accused at the scene of offence at the time of actual
attack, they could have pinpointed the same instead of being content with an omnibus
allegation that the accused were seen chasing them with weapons. Only the role
played by actual assailant and his two companions who exhorted him to fire are
brought out in the evidence of PW10 and PW3. On a cumulative consideration of
all these factors, a serious doubt arises as to the correctness of the
prosecution case that each of the accused (excluding Srinivas Pandey and Ram Pravesh
Pandey) accompanied Dinesh Pandey in prosecution of their common object to
injure or kill the deceased. The possibility of some being present cannot be
ruled out; but, who they are is the question. On this aspect, it is difficult
to eliminate chaff from the grain on an analysis of the evidence. The anxiety
on the part of the prosecution to implicate as many members of the opposite
faction as possible is quite apparent. Unfortunately, the evidence of material
witnesses especially that of PW10, had not been critically and carefully
examined by both the Courts despite the fact that the witnesses were prone to
exaggerate or distort the facts in view of enmity and close relationship. The
crucial aspects, as discussed above, escaped the attention of the High Court.
If the
facts as stated by the High Court are correct, perhaps, the inference drawn by
the High Court may be right and the conviction under Section 302 read with
Section 149 IPC might not have been faulted. Even if the appellants have not
done any overt acts or otherwise taken active part, knowledge under the second
part of Section 149 could possibly be attributed to them. But, there is a
difficulty in accepting the factual account given by PW 10 and others insofar
as it relates to the accused other than the actual assailant and his two active
companions. There is any amount of doubt in regard to the presence and participation
of the accused other than the three referred to above.
Before
closing the discussion on this aspect, we must also advert to the evidence of
PW 3, who is the wife of the deceased. In this regard PW 3's evidence too does
not inspire confidence. She too would not have been in a position to observe
each of the accused carrying a particular weapon, even assuming that the actual
act of killing by Dinesh Pandey with his fire arm could have been noticed by
her from the place where she was remaining. According to the version of PW3 she
was at a culvert about "10 full steps" behind those carrying the cot
when she heard the cries of the accused. On noticing the accused coming from
behind, she states she hid herself and came to the spot where the cot lay only
after the accused left the scene. In that panicky state of mind, her impulsive
reaction was only to seek a place of hiding rather than standing at the spot
and observing the movements of the accused and the weapons they carried. Her
evidence that she had seen each of the accused carrying particular weapon is,
therefore, highly doubtful. Her evidence in this regard is no better than that
of PW 10- the informant. In fact, the trial Court was not inclined to believe
the evidence in regard to the second and final incident on the ground that she
made certain improvements and embellishments. But, the High Court omitted to
discuss them.
In the
light of the above discussion it is not safe to convict the accused-appellants
by taking recourse to Section 149 I.P.C. However, the presence and active
participation of Srinivas Pandey and Ram Pravesh Pandey cannot be doubted. As
far as Srinivas Pandey is concerned it is he who went and fetched the fire-arm
and gave it to Dinesh Pandey when they were on the roof of his house thereby
leading to the first shoot-out of the deceased. It is a clear pointer that he
shared the common intention with Dinesh Pandey to kill the deceased. Again, at
the time of second incident, he played active role in exhorting Dinesh Pandey
to fire at the deceased. Ram Pravesh Pandey is another accused who exhorted Dinesh
Pandey to open fire at the deceased saying that he was still alive. His
presence in the immediate company of the assailant and the role played by him
could be watched by PW 10 just as he had seen Dinesh Pandey using his rifle to
hit the deceased.
He too
can be said to have shared common intention with the main assailant and Srinivas
Pandey to kill the deceased. Therefore, we are of the view that Srinivas Pandey
and Ram Pravesh Pandey are liable to be convicted under Section 302 read with
Section 34 I.P.C.. The absence of a specific charge under Section 34 I.P.C.
cannot be said to have caused any prejudice to the two appellants as the facts
giving rise to constructive criminal liability were well known to them from the
beginning and the case which they have to meet under S. 34 is substantially the
same as the prosecution put forward. The ruling of quite relevant in this
context.
Accordingly,
the Criminal Appeal No. 871 of 2000 is allowed in so far as Appellant Nos. 1,
3, 4, 5 and 6 are concerned. The said appellants are acquitted of the charges.
The appeal in regard to Ram Pravesh Pandey stands dismissed. The Criminal
Appeal No. 872 of 2000 filed by Srinivas Pandey is also dismissed. However, we
alter the conviction of these two accused, namely, Ram Pravesh Pandey and Srinivas
Pandey, into one under Section 302 read with 34 IPC instead of Section 302 read
with 149 IPC.
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