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SUPREME COURT OF INDIA
N.V. Ramana, Mohan M. Shantanagoudar, S. Abdul Nazeer, JJ.
Bal Mukund Sharma @ Balmukund Chaudhry Etc., Etc. – Appellants
Versus
The State of Bihar – Respondent
CRIMINAL APPEAL NOS. 13821384 OF 2014
Decided On : 16-04-2019
(B) Indian Penal Code, 1860 – Sections 302, 302/149, 436/149 and 148 – Arms Act, 1959 – Section 27 – Murder and mischief by fire – Common object of unlawful assembly – Conviction and sentence – Courts below were not justified in convicting any of accused other than one accused for offence under Section 302, IPC, by taking help of Section 149, IPC – Evidence of eyewitnesses pertaining to nine accused has been adduced to prove that they were part of mob that killed deceased, attacked villagers and set a portion of PW2’s house on fire – However, there is nothing on record to show that these accused had actually taken part in occurrence or that they had any common object of committing murder and rioting along with other accused – Evidence with respect to their presence, participation and complicity in incident in its entirety and, therefore, even in sharing a common object for commission of any of acts that occurred during incident, is vague, scanty, inconsistent and unbelievable and necessitates giving them benefit of doubt – These nine accused are liable to be acquitted of all charges levelled against them – There exists cogent evidence only as to role of accused – All of these six accused participated in rioting on scene of incident – Murder of deceased was itself not the common object of unlawful assembly – Evidence on record may create grave suspicion in mind of Court about complicity of other accused also, with help of Section 149, IPC, however, such grave suspicion cannot take place of proof – It is for prosecution to prove its case beyond reasonable doubt – Judgments of Trial Court and High Court modified. (Paras 7, 8, 9 and 10)
Facts of Case:
Courts below convicted accused Brahamdeo and Kapildeo Chaudhry for offences under Sections 302 and 302/149 of Indian Penal Code respectively, and further under Sections 436/149, 148 and 307/34, IPC, and Section 27 of Arms Act. Rest of the accused were convicted under Sections 302/149, 436/149 and 148, IPC. common judgment passed by High Court in criminal appeals confirming judgment of conviction and sentence passed by 7th Additional Sessions Judge, Bhagalpur is questioned in these appeals.
Findings of Court:
Six accused initially accosted informant, chased him to his house, and on failing to get a hold on him, set fire to a portion of his house and caught hold of his nephew, deceased, who was done to death by accused Brahamdeo. Murder of deceased was itself not common object of unlawful assembly. Moreover, we find that act of the accused Brahamdeo of shooting the deceased was sudden, and knowledge of likelihood of same could not be attributed to rest of accused. Though other accused had followed accused Brahamdeo, evidence on record and circumstances of this case could not, conclusively and beyond reasonable doubt, show common object being shared by other accused, in the commission of offence of murder by accused Brahamdeo.
Result : Appeals allowed in part.
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
The common judgment dated 23.05.2013 passed by the High Court of Judicature at Patna in Criminal Appeal Nos. 221/1990, 225/1990 and 239/1990 confirming the judgment of conviction dated 11.06.1990 and sentence dated 12.06.1990 passed by the 7th Additional Sessions Judge, Bhagalpur is questioned in these appeals.
2. The case of the prosecution in brief is that while the informant, Meghu Pandit, PW2 was carrying soil that he had dug from a Gairmajarua land lying to the north of his house for the purpose of manufacturing earthen pots along with his wife, the fifteen accused accosted them in a group; hence, PW2 and his wife ran away towards their house out of fear, but were chased even to their house. The accused Brahamdeo Chaudhry also fired three gunshots in the air, and threatened to kill any villager who came forward. The informant, PW2 and his wife hid in their house and closed the doors, whereafter the aforesaid members of the unlawful assembly unsuccessfully tried to enter PW2’s house by breaking the doors and also set part of it on fire. It is further alleged that all the accused caught hold of PW2’s nephew, Ambika Pandit, who was working in his own field nearby, and dragged him away to another field, where the accused Brahamdeo Chaudhry shot Ambika Pandit with a gun, who died on the spot. According to the informant, he had seen the occurrence after coming out of his house. After the deceased was shot, the villagers raised a hue and cry and rushed to his field, upon which the accused Brahamdeo Chaudhry and Kapildeo Chaudhry opened fire, on account of which Shanti Devi, Subhash Sao, Wakil Yadav and Kokai Sao also suffered injuries.
3. The Courts below convicted the accused Brahamdeo and Kapildeo Chaudhry for the offences under Sections 302 and 302/149 of the Indian Penal Code (in short “IPC”) respectively, and further under Sections 436/149, 148 and 307/34, IPC, and Section 27 of the Arms Act. The rest of the accused were convicted under Sections 302/149, 436/149 and 148, IPC. Additionally, the accused Anil Chaudhry, Bhavesh Chaudhry, Babulal Chaudhry and Mahendra Rai were convicted under Section 323/34, IPC.
4. PWs 1 to 7 and 9 are the eyewitnesses to the incident in question, out of which PWs 3, 4, 5 and 6 are the injured eyewitnesses. Among them, PWs 3 and 6 sustained only simple injuries, whereas PWs 4 and 5 sustained both simple and grievous injuries. Though PW2, the informant was chased by the unlawful assembly, leading him to hide along with his wife in his home, no injury was sustained by him or his wife.
5. Shri Arvind Verma, learned senior Advocate taking us through the material on record, contended that the Trial Court and the High Court were not justified in convicting all the fifteen accused for the offences punishable under Section 302, IPC with the help of Section 149, IPC. The argument of the learned senior counsel for the accused was that at the most the Trial Court and the High Court could have convicted the accused Brahamdeo Chaudhry who shot the deceased to death, under Section 302, IPC and five of the accused, namely Mahendra Rai, Babulal Chaudhry, Bhavesh Chaudhry, Kapildeo Chaudhry and Anil Chaudhry, for other offences that they committed, inasmuch as common object for the offence of murder was not proved against them. It was further argued that the remaining nine accused should not have been convicted for any of the charges levelled against them. This was because there was no credible evidence in this respect, no specific overt act whatsoever had been attributed to them, and it was highely likely that they had been implicated only by virtue of being close relatives of the accused Brahamdeo Chaudhry.
On the other hand, Shri Devashish Bharukha, learned counsel appearing for the State argued in support of the judgments of the Trial Court and the High Court.
6. We have carefully considered the evidence of PWs 1 to 7 and 9, who were the eyewitnesses to the incident. Rather
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