IMPORTANT POINT
Mere fact that all accused persons armed with deadly weapons like rifle, guns and spear arrived on spot together would not necessarily lead to inference that they shared common object to kill deceased particularly when behaviour of some of accused having not used their weapon at all negatived such inference.

Headnote:(i) Indian Penal Code, 1860-Section 302/149-Conviction of three appellants for offence of murder with help of Section 149 IPC-Non-appellant-accused after a quarral with prosecution party over accused s buffalo entered field of informant for grazing went to his house and came armed with rifle and appellants accused armed with gun and spear-Non-appellant-accused fired four shots upon deceased and two shot hit deceased-Who died on spot-Sustainability of conviction of appellants-Appellants though armed with gun and spear did not use their weapon either to fire at deceased or two witnesses standing nearby-No other overt act or role attributed to them which could point to their common object to kill deceased-Their behaviour at scene of offence negatived such inference-Their conviction could not be sustained.
       Held : 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 PW 5, no such injury was proved. PW 5 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. (Paras 12 and 13)
       (ii) Indian Penal Code, 1860-Section 307-Appellants convicted under -Two ingredients of offence to be present are an intention or knowledge to commission murder and doing of act towards it-Appellants armed with gun fired indiscriminately without aiming any particular person and some villagers sustained simple injuries-No evidence about distance from which said two appellants fired-Conviction u/s 307 IPC could not be sustained but they were liable to be convicted u/s 324 IPC and sentenced three years imprisonment. (Paras 14 and 15)
       (iii) Criminal Procedure Code, 1973-Section 313-Obligation on trial Court to examine accused for enabling accused personally to explain circumstances appearing in evidence-But before accused seeks any benefit of non-compliance, he must show any prejudice caused on account of irregular, imperfect statement. (Para 16)

JUDGMENT

P.P. Naolekar, J.-Leave granted in S.L.P. (Crl.) No. 2238 of 2004.

2. 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 Rajendra 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 concurrently.

3. 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 portion 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.

4. The autopsy was conducted (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.

5. From the post mortem report it is clear that the injuries found on the person of the deceased are lacerated wound of 31/2" x 21/2" 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 interna

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