2002 Supreme(SC) 892

2002(6) Supreme 217
SUPREME COURT OF INDIA
(From Patna High Court)
S. Rajendra Babu and P. Venkatarama Reddi, JJ.
Shiva Shankar Pandey & Ors. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal Nos. 871-872 of 2000
Decided on 9-9-2002
Counsel for the Parties :
For the Appellants : K.B. Sinha, Sr. Advocate and Ashok Kumar Sharma, Advocate.
For the Respondent : Saket Singh and B.B. Singh, Advocates.

IMPORTANT POINT
There was no common object to kill by the 8 accused. Only two (Ram Pravesh Pandey and Srinivas Pandey) can be said to have shared common intention with the main assailant (Dinesh Pandey) to kill the deceased.

Headnote:(i) Indian Penal Code, 1860-Sections 302 read with 149 and 341-8 persons charged of murdering one Mangalanand Pandey by forming unlawful assembly with deadly weapons-Accused No. 1 Dinesh Pandey s SLP dismissed but of other 7 admitted-Short comings in not recording blood stains on roof PW and cot whether material? (No)-Testimony of PW 1, PW 10 and PW 3 whether can be rejected on ground of interested witnesses? (Yes for PW 1 but no for PW 10 and PW 3).

       Held : We do not think that the factum of I.O. not recording the presence of blood 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. (Para 3)

       Held also : As far as PW1 is concerned, there is considerable force in the comment of the learned counsel for the appellant that his presence was highly improbable. PW1 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. (Para 5)

       (ii) Indian Penal Code, 1860-Sections 302 r/w 149-Eight persons involved in murdering one-Accused 1 not doubted-Appeals by 7-Whether conviction of all or any of these 7 appellants for the offence of murder can be sustained by invoking section 149 IPC? (No)-Legal position-(Paras 6 and 7)-Whether all the appellants proceeded to the spot of occurrence to attain the object of murder in furtherance of common intention-High Court saying No -High Court holding it developed thereafter-Whether correct? (No)-Only overt act was done by actual assailant (Accused No. 1 whose SLP not admitted) and his two companions Ram Pravesh Pandey and Srinivas Pandey who brought fire arms and exhorted to kill the deceased-5 acquitted-Two convicted but conviction altered-Order accordingly.

       Held : 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 Panday 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. (Para 10)

       Held further : 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 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 Section 34 is substantially the same as the prosecution put forward. The ruling of this Court in Bhoor Singh Vs. State of Punjab (AIR 1974 SC 1256) is quite relevant in this context. (Paras 11, 12 and 13)

       Held consequently : 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. (Para 14)