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2003(4) Supreme 166
SUPREME COURT OF INDIA
(From Patna High Court)
N. Santosh Hegde, Shivaraj V. Patil & B.P. Singh, JJ.
Md. Rustam @ Rustam -Appellant
versus
The State of Bihar -Respondent
Criminal Appeal No. 559 of 2001
Decided on 11-12-2002
Counsel for the Parties :
For the Appellant : V.C. Mahajan, Sr. Advocate, Mrs. Alka Jha, Anil Kumar Jha and B. Krishna Prasad, Advocates.
For the Respondent : B.B. Singh and Kumar Rajesh, Advocates.
Held : From the entire prosecution evidence, it is noticed that the appellant and accused No.3 came to the place of incident on hearing the call of their father. It is said that after they came to the spot armed with firearms, their father exhorted them to kill Manir, the deceased. In response to that exhortation, it is only accused No.3 who fired at Manir and admittedly the appellant did not shoot at the deceased. Therefore, it is clear that so far as the father s intention to kill Manir is concerned the same is shared only by A-3 and not by A-2. Therefore, we will have to consider whether the alleged subsequent shooting of appellant at PWs 4 and 7, if at all true could also be attributed as part of the same common intention. In this process, we notice that there is so much of contradiction in the case of the prosecution that the Sessions Court itself thought it fit not to rely upon this part of the evidence of the prosecution while considering the case under Section 307 IPC against the appellant. Then we notice appellant has not been attributed with any other motive to either kill the deceased or any of the members of his family, nor was there any exhortation by A-1 to kill any person other than the deceased. In such circumstances, if the appellant has not chosen to obey the exhortation of his father to kill Manir then it will be extremely difficult to hold that the appellant shared the common intention of his father and his younger brother. Even if the role attributed to this appellant in shooting PWs. 4 and 7 is to be accepted even then that cannot be part of the same common intention of killing Manir. Therefore, in our opinion, the prosecution has failed to establish that the appellant had shared the common intention of his father A-1 and younger brother A-3 so as to hold him guilty of murder by invoking Section 34 IPC. (Para 6)
Held further : The next question, for our consideration, is can the prosecution case in regard to the appellant firing at PWs. 4 and 7 be believed or not ? In this regard we have noticed that in the FIR there is no such allegation against the appellant. PW-9 the wife of the deceased who first came there has also not spoken anything about this appellant causing injuries to PWs.4 and 7. PW-5 has also not spoken anything about the role of this appellant in the incident of 14.6.1996. As noticed above, PW-4 s evidence cannot be considered because the court has not administered any oath to this witness, therefore, in effect it is only the evidence of PWs. 7 and 8 which really implicates this appellant. If we consider the evidence of PW-8 then we notice it is for the first time before the court he has implicated the appellant and he has not done the same when he gave his statement to the Police in the first instance therefore, there being an improvement in his evidence we do not think it safe to rely upon his evidence. Coming to the evidence of PW-7 we notice that the doctor in his evidence had initially stated that the injuries suffered by her and PW-4 were caused by a blunt weapon. PW-12, the doctor on further questioning by the prosecution stated :
"This injury cannot be caused by pellet of fire arm. Again says that it may be caused by pellet of fire arm if the pellet touches the skin. This injury report in my writing and bears my signature."
Later in the cross examination, he stated thus:
"My injury report does not show that the injuries of the injured persons were caused by pellet of fire arm. The injury of Jahiram may be caused by contact of pressure of door or any hard substance. The injury of Jabbar may be caused by fall on hard substance." (Para 7)
Held consequently : In the background of this evidence and the improvements which we have noticed in regard to the role played by this appellant, we find it difficult to place reliance on this part of the prosecution case so as to hold the appellant guilty of having caused prosecution case so as to hold the appellant guilty of having caused any injury to either PW-4 or PW-7 as also the alleged offence attributed to him under the Arms Act. (Para 8)
Held finally : For the reasons stated above, this appeal succeeds. The judgment and conviction recorded by the High Court as against this appellant is set aside. The appeal is allowed. We are informed that the appellant is on Bail. His Bail Bonds shall stand discharged. (Para 9)
JUDGMENT
Santosh Hegde, J.-The appellant before us was Accused No.2 before the Court of IIIrd Additional Sessions Judge, Banka. He along with his father (A-1) and his younger brother (A-3) was charged for offence punishable under Section 302 read with Section 34 IPC and having found guilty was sentenced to imprisonment for life on that charge. The appellant and his brother Kustam (A-3) were also charged for an offence punishable under Section 27 of the Arms Act and were sentenced to 3 years R.I. on that charge. On appeal, the High Court of Judicature at Patna has confirmed the said conviction and sentence.
2. All the three accused persons preferred the above noted criminal appeal before this Court and this Court as per its order dated 9.2.2001 dismissed the appeal so far as it concerned Hazi Shariff (A-1) and Kustam @ Khurshid (A-3), while notice was issued in regard to appeal filed by the present appellant and on return of the said notice after hearing the parties the leave was granted on 23.4.2001, therefore, the appeal of the present appellant alone as against the judgment of the High Court is before us.
3. The prosecution case briefly stated is that there was some dispute between the father of the appellant and one Manir Mian the deceased in this case in regard to some land. It is the further case of the prosecution that on 14.6.1996 in the morning at about 9 a.m. the A-1 was taking a pumping set in a bullock cart for irrigating his land and when the cart reached near the house of one Sheikh Madhu the deceased who was there asked A-1 not to use the pump for irrigating the land until the dispute as to the land is settled and at that time the deceased also stopped the bullock cart. A-1, getting angered by this obstruction caused by the deceased, the first accused allegedly called the appellant and accused No.3 shouting that the deceased is stopping his cart. On hearing this shout, it is stated that the appellant and A-3 Kustam came to the spot armed with firearms, appellant carrying pistol and Kustam carrying a musket. On their arrival, their father A-1 allegedly exhorted them to kill Manir. It is the further case of the prosecution that on this exhortation the 3rd accused fired from his musket which hit the chest of Manir consequent to which injury, he died, this was noticed by deceased s wife PW-9. On hearing the sound of firing, it is stated, that the deceased s mother (PW-7) and other members of the deceased s family came there, at which time the prosecution states that the appellant herein fired two shots one of which grazed the mother-in-law (PW-7) and PW-4 the other hit the wall of the house. Thereafter the prosecution case is that the accused persons went away from the place of incident. On the above allegation, the three accused persons including the appellant herein were charged under Sections 302, 307 and 120B IPC and Section 27 of the Arms Act. On the said charges as stated above, the three accused persons were convicted.
4. From the facts narrated above, it is seen that because of the enmity between A-1 and the deceased on an exhortation made by A-1, A-3 fired a shot from the musket which caused the death of the deceased. For this A-1 was convicted under Section 302 read with Section 34 IPC while A-3 was convicted under Section 302 simplicitor as also under Section 27 of the Arms Act. Even though there has been no overt act on the part of the appellant in the killing of the deceased, he was convicted under Section 302 read with Section 34 IPC and under Section 27 of the Arms Act. Since the appeal of accused Nos.1 and 3 has been dismissed by this Court, in this appeal we will have to only examine the role of the appellant in the incident that occurred on 14.6.1996 in which Manir lost his life. From the prosecution evidence, the overt act attributed to the appellant is that after A-3 shot Manir, the appellant allegedly shot from his revolver causing an injury to PW-7 and PW-4 which the doctor described in the first i
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