Parsuram Pandey & Ors Vs. The State of Bihar  Insc 642 (14 October 2004)
P. Venkatarama Reddi & P.P. Naolekar With Criminal Appeal No 1199/2004 @ Special Leave Petition (Criminal) No.
2238 of 2004 P.P. NAOLEKAR, J.
Leave granted in S.L.P. (Crl.) No.2238 of 2004.
Both these appeals arise out of the same incident for which all accused
persons have been convicted and sentenced.
The accused/ appellants were tried for the offence along with two other
accused persons namely, Dharm Raj Pandey and Shradha Ram. Raghunath
Pandey-accused/appellant has been convicted under Section 302 of the IPC and
awarded sentence of life imprisonment. He was further convicted and sentenced
to two years RI under Section under Section 148 IPC and 27 of the Arms Act. The
accused/appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey together
with the other accused (non- appellants) have been convicted and sentenced to
life imprisonment under Section 302 read with Section 149 of the Indian Penal
Code and two years RI under Section 148 of the IPC.
Parshuram Pandey, Bishram Pandey together with Dharmraj Pandey
(non-appellant) have been further convicted and sentenced to 5 years RI under
Section 307 for attempting to murder Rajdendra Dusadh, Hriday Shankar Rai,
Shampu Kumar Singh, Mathura Singh and Rajesh Singh and one year RI under
Section 27 of the Arms Act. All these sentences have been ordered to run
The prosecution case in nut-shell is as follows. That on 24th December 1989 at about 1.30 P.M. at Village Burhaila, FIR was lodged by informant-PW6, Birender
Pandey informing that he along with Bharat Pandey (PW5) and Kanhaiya Pandey
(deceased) were standing in their field. Appellant-Raghunath Pandey after
getting his buffalo washed in the canal reached near Birender Pandey's field
and drove the buffalo to graze the tori crop grown in the field. Birender
Pandey objected to it, whereupon Raghunath Pandey abused him which was resisted
by Kanhaiya Pandey(deceased). On this Raghunath Pandey went to his residence and
returned with other accused persons, armed.
Raghunath Pandey was armed with rifle and other accused persons, Parshuram
Pandey and Bishram Pandey were armed with gun and Somaru Pandey armed with
spear. On entering the field on exhortation of Somaru Pandey and Shradha Ram,
Raghunath Pandey fired four shots by his rifle. Two shots hit Kanhaiya Ram
(deceased) who fell down after receiving injuries. Thereafter the appellants
Parshuram Pandey, Bishram Pandey along with other accused persons started
indiscriminate firing by their guns which caused injuries to the villagers. The
appellant Somaru Pandey hurled spear towards Birender Pandey and Bharat Pandey
which caused injuries to Bharat Pandey by the lathi protion of the spear.
Surendra Pandey and other alleged eye-witnesses (PW3) and Ram Ekbal Pandey
(PW4) reached the place of occurrence and saw the occurrence. The
accused/appellants made good their escape.
Kanhaiya Pandey was taken to Nana Nagar Hospital where he was declared dead.
The autopsy was conducted by (PW7) Dr. Parma Nand Rai and he found the
following ante-mortem injuries on his person:
1) Lacerated wound with rugged and blackish marks 31/2" x 21/2" on
the left side of upper chest, auxillary side of the chest;
2) Lacerated wound with blackish margin 4" x 3" x muscle deep on
the medial side of upper chest, auxillary side of the chest;
3) Lacerated wound 4" x 3" x bone deep and inverted margin on the
upper left arm on the same level as injury no.2 4) Lacerated wound with everted
margin 5" x 31/2" x bone deep on lateral side of left arm. It is
wound of exit.
From the post mortem report it is clear that the injuries found on the
person of the deceased are lacerated wound of 31/2" X21/2" on the
left side of the chest just above the level of nipple and lacerated wound of
4" x 3" x muscle deep on the medial side of upper chest and auxillary
side of the chest apart from a wound of entry and exist on the upper left arm.
The Injury No.1 and Injury No. 2 could not have been caused of the same shot and
must have been by two gun shots.
On the internal examination he found the following injuries:
"Left auxillary blood vessel badly lacerated and upper arm badly
lacerated and fractured.
Fracture is compounding nature." In the opinion of the doctor the cause
of death was hemorrhage and shock as a result of the fire arm. S.K. Singh, the
doctor, who has conducted the postmortem, he has found lacerated wound with
blackish margin, which indicates that the firing was from a near distance. The
other injured persons namely, Hriday Shankar Rai, Sampu Kumar Singh, Rajesh
Singh, Mathura singh were examined by Dr. Shiva Nand Prasad (PW8) on 24.12.1989
and he has opined that the injuries sustained by these persons were simple and
were caused by suspected gun- shot. Prosecution has examined only one injured
witness namely, Rajesh Singh while defence has examined Sampu Kumar Singh, DW2.
The trial court and High Court while relying on the statement of PW3 Surendra
Pandey, PW4 Ram Ekbal Pandey, PW5 Bharat Pandey, PW6 Birendra Pandey convicted
the accused persons. Defence plea of accidental firing deserves rejection.
It is urged by the learned counsel for the appellant that on proper
appreciation of the evidence on record, PW3 Surendra Pandey and PW4 Ram Ekbal
Pandey could not be held to have been present at the place at the time of the
PW 3 and 4 claim themselves to be the eye-witnesses but in the FIR lodged by
PW6 at the police station it is revealed that Surendra Pandey-PW3 and Ram Ekbal
Pandey-PW4 have reached the place of occurrence after hearing the noise. The
FIR records, that hearing the fire shots and noise from the family members and
co-villagers, Surender Pandey and Ram Ekbal Pandey (Pws 3 and 4) and many other
came who had seen the occurrence and accused persons. Therefore, as per the FIR
these two witnesses have reached the spot after hearing the fire shots and the
noise from the family members. PW5 - Bharat Pandey in his cross-examination has
admitted that after the accused fled away, his family members came. His brother
PW3- Surendra Pandey and father PW4-Ram Ekbal Pandey reached the spot after the
accused persons had already fled away. PW3 has deposed that on 24.12.1989 at
about 1.30 O' clock at day time he was in verandah of his house and he saw
accused persons armed with guns were going towards Dusadi Tola and he has
In cross-examination he has admitted that he has followed the accused
persons after 2-4 minutes of hearing the `hulla'. The statement clearly
indicates that he has not immediately followed the accused persons but he left
his residence after 2-4 minutes of hearing the hulla. He was attracted to the
place of incident after he has heard the `hulla'. Thus the statement of this
witness clearly shows that he has reached the place of incident after the
incident was over. PW-4 has deposed that on the date of incident he was at the
door of his house and he saw the accused persons going towards the Dusadi Tola.
His son Surendra Pandey-PW3 was also sitting at the door. Both of them moved to
see where these people were going. Thus the father and the son have followed
the accused persons at the same time and must have reached the place of
incident after the incidence had occurred. The deposition of these witnesses
read with the statement of PW5 Bharat Pandey and the incident recorded in the
FIR leaves no manner of doubt that these witnesses were not the eye-witnesses
and have not seen the incident happening.
They reached the spot later on.
It is then submitted by the learned counsel for the appellant that the fact
situation alleged by the prosecution of the commencing of the incident does not
inspire confidence in the circumstances of the case. As per the counsel it was
impossible for the accused Raghunath Pandey to put his buffalo in the field for
grazing when Birender Pandey, Bharath Pandey and Kanhaiya Pandey were standing
in the field. Particularly so, when the investigating officer did not find any
foot marks of the animal in the field and therefore the whole genesis of the
incident is false and therefore the prosecution could not be believed. It may
be true that there may be exaggeration in the prosecution case in so far as as
Raghunath Pandey deliberately putting his buffalo in the field to graze the
standing crop. It might be that the buffalo must have strayed in the field and
that would have caused heated argument between Raghunath Pandey and the
deceased Kanhaiya Pandey, Bharat Pandey and Birender Pandey which has enraged
Raghunath Pandey who went to his house and came back with his rifle and
thereafter the incident occurred.
Exaggerated story put up by the prosecution would not wash away the entire
incident, which has been proved by the witnesses who were present on the spot.
The incident might have commenced somewhat in different manner but the fact of
the commission of the offence, when proved by the witnesses the prosecution's
case cannot be thrown out only on the basis that prosecution has put inflated
version of the commencement of incident. PW6 - Birender Pandey, the informant
reiterated his version as given in the FIR. In his statement he said that he
was in the field along with Bharat Pandey and Kanhaiya Pandey on the fateful
day. Raghunath Pandey came near the field and let loose his buffalo in the
field of the informant to graze the standing tori crop and when he protested,
Raghunath Pandey started abusing him and Kanhaiya Pandey intervened and
objected the act of Raghunath Pandey, whereupon Raghunath Pandey went to his
house after threatening and came back with his rifle along with other accused
persons who were also armed with the fire arms. It is further stated that on
exhortation of Somaru Pandey and Shradha Ram , Raghunath Pandey fired 4 shots
by his rifle out of which two shots hit Kanhaiya Pandey who fell down.
Thereafter, Dharmraj Pandey, Parshuram Pandey and Bishram Pandey,
indiscriminately started firing their guns which caused injuries to Rajesh
Singh-PW1 and Somaru Pandey- DW2 and other villagers. It is further deposed
that appellant Somaru Pandey and Shradha Ram hurled spear and Bharat Ram was
injured by the back portion of the spear. PW5-Bharat Pandey corroborated the
statement of PW6-Birender Pandey when he stated in the Court that he was
present in the field along with Kanhaiya Pandey and Birender pandey when Raghunath
Pandey came there and let loose his buffalo to graze the tori crop standing in
the field of Birender pandey which was objected to by Birender Pandey and
Raghunath Pandey abused him. Kanhaiya Pandey objected to the said act of
Thereafter, Raghunath Pandey went to his house and came back with fire arm
with other accused armed with guns and Somaru Pandey, Shradha Ram armed with
spear. Immediately after having reached the field Raghunath Pandey fired four
shots by his rifle, out of which two shots hit Kanhaiya Pandey and he fell
down. The other accused persons started indiscriminate firing with the result
the villagers sustained injuries. Statements of these two witnesses have been
found trustworthy by two courts below as regards causing injuries by fire arms
by Raghunath Pandey to Kanhaiya Pandey. The injury sustained by the deceased Kanhaiya
Pandey corroborates ocular statements of these two witnesses. On consideration
of the evidence, the evidence of these two witnesses is reliable and convincing
except to the extent that some embellishments were made in explaining the
genesis of incident. The evidence of these two eye witnesses is consistent with
the medical evidence and does not create doubt regarding the real manner in
which the incident has taken place and the injuries caused by Raghunath Pandey
to Kanhaiya Pandey by use of fire arm. We do not find any infirmity in the
reasoning of Courts below in placing reliance on the statement of these two
witnesses for convicting Raghunath Pandey for causing death of Kanhaiya Pandey.
It is submitted by the learned counsel for the appellants Parshuram Pandey,
Bishram Pandey and Somaru Pandey that in the facts and circumstances of the
case these appellants could not have been convicted under Section 302 read with
Section 149 for causing death of Kanhaiya Pandey. Further they are wrongly
convicted under Section 307 for causing injury to the villagers and their
further conviction under Section 27 of the Arms Act is not in conformity with
the evidence led by the prosecution.
It has come in evidence that PW5-Bharat Pandey, PW6- Birender Pandey, were
standing near by the deceased Kanhaiya Pandey. Parshuram Pandey and Bishram
Pandey were carrying fire arms, whereas Somaru Pandey was carrying spear. The
incident has happened within a short span of time. The witnesses have said that
the accused persons entered the field and immediately thereafter Raghunath
Pandey opened four shots at Kanhaiya Pandey, the deceased. Kanhaiya Pandey
received two gun-shot injuries and fell down. Thereafter, Parshuram Pandey and
Bishram Pandey had started indiscriminate firing. Somaru Pandey had hurled
spear at Bharat Pandey. It has also come in the prosecution evidence that after
hot exchange of words Raghunath Pandey came back within few minutes from his
residence armed with rifle and accompanied by other accused persons to the
field. The evidence also shows that neither Bharat Pandey or Birender Pandey
have received any injuries by the fire arms. It is not stated by the eye-witnesses
that Parshuram Pandey or Bishram Pandey while indiscriminately firing from
their fire arms had aimed at Kanhaiya Pandey, the deceased nor there is any
evidence on record that Bharat Pandey, Birender Pandey who were standing near
the deceased have received any injuries by the fire arm. PW1-Rajesh Singh has
deposed that on 24.12.1989 at 1.30 P.M. he was going towards the place of one
Mathura Uncle of the Village and while he was passing by the side of field of
Birender Pandey, all of a sudden he heard the noise of 4- 5 firing shots and
simultaneously he had received pellet injuries.
He has not stated that he has sustained injuries by any of the accused
persons firing at him. In fact he has not seen the actual firing of the guns.
He is a witness who was going by the side of the field of Birender and
sustained injuries by fire arm. He has only heard the noise of 4-5 firing
shots. Thus this witness has not stated that he has received the injuries at
the hands of Parshuram, Bishram or Somaru. DW2-Sampu Kumar Singh who was
examined by defence, sustained injuries by the fire arm, has not named any of
the accused person to be the person who has caused him injuries in the
incident. Thus there is no evidence on record that the injuries sustained by
the villagers by fire arm was intended to be caused by the accused persons.
There is no evidence on record that any of the villagers (passer-by) have
received any specific injury by a fire arm used by either Parshuram or Bishram
intended to be caused to them.
By virtue of Section 149 IPC every member of an unlawful assembly at the
time of the commission of the offence is guilty of an offence committed by any
member of the unlawful assembly.
The Section creates constructive or vicarious liability of the members of
the unlawful assembly for unlawful acts committed pursuant to the common object
by any other member of that assembly. The basis of constructive guilt under
Section 149 is mere membership of an unlawful assembly. In a case under Section
149 the accused if is a member of the unlawful assembly, the common object of
which is to commit a certain crime and if that crime is committed by one or
more members of that assembly every person who happened to be a member of that
assembly would be liable for that criminal act by virtue of his being a member
of it, irrespective of the fact whether he actually committed the act or not.
To attract Section 149 of the IPC the prosecution must prove that the
commission of the offence was by any member of an unlawful assembly and such offence
must have been committed in prosecution of the common object of the assembly or
must be such that the members of the assembly knew that it was likely to be
committed. Unless these three elements are satisfied by the prosecution the
accused cannot be convicted with the aid of Section.
The facts which have been proved by the prosecution are that on heated
exchange of words in the field of Bharat Pandey, between Bharat Pandey,
Birender Pandey, Kanhaiya Pandey with Raghunath Pandey, Raghunath Pandey went
home enraged and returned back immediately thereafter (within 3 minutes
according to PW-6) with a rifle accompanied by other accused persons who were
also carrying guns and spear. Immediately on entering the field, Raghunath
Pandey opened fire at Kanhaiya Pandey and as a result thereof he received two
gun-shot injuries from the weapon used by Raghunath Pandey. Neither Parshuram
Pandey nor Bishram Pandey used their guns to fire at Kanhaiya Pandey, Bharat
Pandey or Birender Pandey, who were standing nearby.
No other overt act or role has been attributed to them which could
definitely point out to their common object to kill or injure Kanhaiya Pandey
or PWs 5 and 6. The mere fact that they accompanied Raghunath Pandey with
weapons in hand does not necessarily lead to the inference that they had shared
the common object or intention with Raghunath Pandey to kill Kanhaiya Pandey.
Their behaviour at the scene of offence negatives such inference. However, the
only fact proved by the prosecution is that they have started indiscriminate
firing which resulted in some villagers receiving simple injuries, though the
reason for such firing is not clear. In view of the short span of time within
which the whole incident took place it could not be presumed that the three appellants
along with the other accused Raghunath Pandey have informed the common object
to do away with Kanhaiya Pandey. The fact that immediately after entering the
field Raghunath Pandey opened fire at Kanhaiya Pandey, though the other accused
who were also armed with gun, have not fired at Kanhaiya Pandey or his
companions also indicates that the accused persons Parshuram and Bishram Pandey
did not share the common object or intention to cause death of Kanhaiya Pandey.
It cannot be said that they fired their guns and have missed the shot at
Kanhaiya Pandey or any other person. Thus we find it difficult to hold as has
been held by the trial court and the High Court that the accused Parshuram,
Bishram and Somaru Pandey have formed the unlawful assembly with the common
object to commit an offence of murder of Kanhaiya Pandey. In fact there is no
evidence against Somaru Pandey except that he exhorted appellant/accused
Raghunath Pandey to fire at Kanhaiya Pandey, which in the circumstances of the
case is difficult to believe. Though PWs 5 and 6 deposed that he and Shradha
Ram threw the spears at them and the stick portion of it injured PW5, no such
injury was proved. PW5 refused to be examined by the doctor.
Thus the accused appellants Parshuram Pandey, Bishram Pandey and Somaru
Pandey are acquitted of the charge under Section 302 read with Section 149 and
imprisonment for life.
Accused Parshuram and Bishram were also convicted under Section 307 for 5
years RI for causing gun-shot injuries to the villagers.
To constitute an offence under Section 307 two ingredients of the offence
must be present:- (a) an intention of or knowledge relating to commission of
murder ; and (b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the
knowledge and not the consequence of the actual act done for the purpose of
carrying out the intention. Section clearly contemplates an act which is done
with intention of causing death but which fails to bring about the intended
consequence on account of intervening circumstances. The intention or knowledge
of the accused must be such as is necessary to constitute murder. In the
absence of intention or knowledge which is the necessary ingredient of Section
307, there can be no offence 'of attempt to murder'. Intent which is a state of
mind cannot be proved by precise direct evidence, as a fact it can only be
detected or inferred from other factors. Some of the relevant considerations
may be the nature of the weapon used, the place where injuries were inflicted,
the nature of the injuries and the circumstances in which the incident took
place. On the evidence on record, where the prosecution has been able to prove
only that the villagers have sustained injuries by indiscriminate firing and it
was an open area with none of the injured nearby there is a complete lack of
evidence of intention to cause such injuries for which the accused persons
Parshuram and Bishram could have been convicted under Section 302 of the IPC.
Nature of the injuries sustained by the villagers is simple. None of the
witnesses have stated that the fire arm causing injuries was being used by any
particular accused for causing injuries to them. In fact the injured have not
seen any of the accused persons using fire arms. There is no evidence about the
distance from which the said two accused fired. The only evidence led by the
prosecution is indiscriminate firing by Parshuram and Bishram which has caused
simple injuries to the villagers. Amongst the injured villagers, only PW1 and
DW-1 were examined. Thus this evidence does not constitute the intention or
knowledge of the accused persons for committing the murder or doing of an act
towards it. The evidence only shows that the villagers have sustained simple
injuries. In the circumstances, we acquit Parshuram and Bishram under Section
307 of IPC.
It is evident from the evidence placed on record that injuries caused to the
villagers are the result of indiscriminate firing from the guns used by
Parshuram Pandey and Bishram Pandey. It has also proved that Somaru Pandey was
carrying spear which he had hurled at PW-5 but no injury was caused to him by
it. It appears that after exchange of hot words between Raghunath Pandey and
members of the complainant-party at the field of Birender Pandey the accused
Raghunath Pandey came to his house and left his house within few minutes with
rifle, observing Raghunath Pandey in a furious mood returning back to the field
armed with rifle, the accused-appellants Parshuram Pandey, Bishram Pandey and Somaru
Pandey must have apprehended some danger and thus accompanied him to the field.
Raghunath Pandey immediately after reaching the field opened fire from the
gun which he was carrying. He fired four shots, two shots out of them hit the
deceased Kanhaiya Pandey and he fell down on field at the spot. The three
accused persons finding Kanhaiya Pandey, deceased falling on the field
seriously injured, apprehended retaliation from the complainant-party and from
other villagers present nearby the field and to ward off any attack on them
including Raghunath Pandey, must have started indiscriminate firing from the
fire arms held by them. In the same process Somaru Pandey also threw spear at
the member of the complainant-party which of course has not caused any injury.
The common intention of the three accused developed immediately after the
shots were fired at Kanhaiya Pandey, as a result thereof he fell down on the
ground seriously injured. The plan to ward off attack in retaliation by the
complainant-party and the other villagers present nearby and to prevent them
from approaching towards place of incident and the accused persons, common
intention developed at the spur of the movement at the place of occurrence
during the commission of crime. The act of all the three accused persons of
firing and throwing spear was in furtherance of the common intention of all of
them. When the fire arms were used indiscriminately in the open place, the
assailants may be presumed to know that result of such use of the weapon will very
likely to give bodily injury to the persons and when such injuries are caused
to the persons, it is the actual result from the assault made, and everyone of
the persons concerned in the act will be guilty for that injury irrespective of
the fact whether the prosecution has proved that a particular injury was caused
by a particular accused person or not. Injury caused to the villagers by the
fire arm although simple in nature are caused by accused person in furtherance
of the common object of all the three accused persons. We, therefore, hold the
accused/appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey guilty of
offence under Section 324 read with 34 IPC.
It is lastly submitted by the learned counsel for the accused/appellants
that the statement under section 313 Cr.P.C.
of the accused persons have been recorded in a most cursory, casual and
perfunctory manner by the Sessions court. It is urged that this is a normal
practice followed in the court in the State.
The manner in which the trial court recorded the statement under Section 313
Cr.P.C. of the accused persons, is not in accordance with law and, therefore
accused-appellant are entitled for the benefit as they have not been provided
with sufficient opportunity to explain the circumstances appearing in evidence
against them. We have perused the statement under Section 313 Cr.P.C. and the
question formulated by the trial court in the present case and we may say that
it is far from satisfactory. This court time and again has laid down that it is
obligatory on the part of the trial court to examine the accused for the
purpose of enabling the accused personally to explain any circumstance
appearing in evidence against him. If such opportunity is not afforded, the
incriminating piece of evidence available in the prosecution evidence against
the accused cannot be relied upon for the purpose of recording the conviction
of the accused person.
It is imperative on the court to record the statement under Section 313
Cr.P.C. of the accused persons so as to give opportunity to the accused persons
to explain any incriminating circumstance proved by the prosecution. The duty
cast on the court cannot be taken lightly. However, we find that no argument
has been advanced by the counsel for the appellants in the trial court or
before the High Court on the basis of improper recording of the statement under
Section 313 of the Cr.P.C. In the present case, the counsel for the
accused/appellant could not point out to us any prejudice being caused to the
accused/appellants on account of the irregular, imperfect statement recorded
under Section 313 of the Cr.P.C. That being the case, the accused are not
entitled for any benefit for the lacuna in recording the statement of the
accused under Section 313 of the Cr.P.C.
As the result of the aforesaid discussion and of the findings, appeal of
accused/appellant Raghunath is dismissed and his sentence is maintained. The
appeal of accused/appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey
is allowed and their conviction under Section 302 read with 149 IPC and Section
148 IPC is set aside. The appeal of accused/appellants Parshuram Pandey and
Bishram Pandey is partly allowed, their conviction under Section 307 IPC and
sentence of 5 years RI is set aside. Accused/appellants Parshuram Pandey,
Bishram Pandey and Somaru Pandey are convicted under Section 324 read with 34
IPC and sentenced to three years RI. The sentence of appellants Parshuram
Pandey and Bishram Pandey under Section 27 of the Arms Act is maintained.
All these sentences shall run concurrently.