Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1218

SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Maheshwari Yadav & Anr. – Appellants
Versus
The State of Bihar – Respondent
Criminal Appeal No.1515 of 2011
Decided on : 13-12-2023

Advocates appeared:
For the Appellant(s) : Mr. T. Mahipal, AOR
For the Respondent(s): Mr. Abhinav Mukerji, AOR Mrs. Bihu Sharma, Adv. Ms. Pratishtha Vij, Adv. Mr. Mohit Prasad, Adv.

IMPORTANT POINTS
(1) It is possible to form a common intention just before or during occurrence.
(2) When evidence of eyewitnesses is of sterling quality, adverse inference need not be drawn – Quality is more important than quantity.

Headnote:
(A) Indian Penal Code, 1860 – Sections 302/34 and 325/34 – Murder and grievous hurt – Common intention – Life sentence – To bring a case within Section 34, it is not necessary to prove prior conspiracy or premeditation – It is possible to form a common intention just before or during occurrence – In a given case, where offence is punishable under Section 302 of IPC, when common intention is proved, but no overt act of assaulting deceased is attributed to accused who have been implicated based on Section 34, vicarious liability under Section 34 will be attracted – It is not axiomatic that in every case where eyewitnesses are withheld from court, adverse inference must be drawn against prosecution – Totality of circumstances must be considered for concluding whether an adverse inference could be drawn – Appellants were present at scene of occurrence along with accused who fired bullet at deceased – Eyewitnesses examined before court were close relatives of deceased – That itself is no ground to discard their testimony – Merely because they made no attempt to save deceased or resist accused is no ground by itself to disbelieve their case – Appellants were together and they acted in concert – There was time available for meeting of minds – Existence of common intention will have to be accepted – Appeal dismissed. (Paras 7, 8, 9, 10, 11, 12 and 13)
(B) Criminal Law – Appreciation of evidence – In a given case, when independent witnesses are available who are not connected with the rival parties and prosecution omits to examine them by confining its case to examining related witnesses, an adverse inference can be drawn against prosecution – When evidence of eyewitnesses is of sterling quality, adverse inference need not be drawn – Quality is more important than quantity. (Para 10)
Facts of the case:
Appellants were convicted for the offences punishable under Section 302 read with Section 34 of the IPC and Section 325 read with Section 34 of the IPC. Appellants were sentenced to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 of the IPC. They were also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 325 read with Section 34 of IPC. By impugned judgment and order appeals have been dismissed.
Findings of Court:
As and when they undergo requisite period of sentence and qualify for consideration for a grant of permanent remission as per applicable policy, State Government shall consider their case in accordance with law.
Result : Appeal dismissed.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL ASPECTS

1. This is an appeal preferred by the accused nos.1 and 2. The learned Trial Court convicted accused no.3 – Paro Yadav, for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’). The appellants were convicted for the offences punishable under Section 302 read with Section 34 of the IPC and Section 325 read with Section 34 of the IPC. The appellants were sentenced to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 of the IPC. They were also sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 325 read with Section 34 of the IPC. Separate appeals were preferred by the appellants and accused no.3 before the Patna High Court. By the impugned judgment and order dated 7th October 2005, the appeals have been dismissed. The accused no.3 – Paro Yadav filed a Petition for Special Leave to Appeal (Criminal) no.4802 of 2006, which this Court dismissed vide its order dated 11th December 2006.

2. We are setting out the prosecution case in brief. PW4 (Jagdish Manjhi) is the first informant. The incident occurred on 10th March 1997 when the PW4 visited Village-Shrirampur to participate in a Baraat. At about noon, he went to Village-Chhitmakhanpur to meet his maternal nephew Gholti Yadav (deceased). After that, PW4 and his cousin Narayan Manjhi (PW5) and Gholti Yadav (deceased) proceeded to catch a train. They crossed the railway line, and when they were moving further, they found appellant no.1 – Maheshwari Yadav, standing there with a lathi (stick) in his hand. On seeing appellant no.1, the deceased warned PW4 not to talk to appellant no.1. In the meanwhile, appellant no.2 – Mannu Yadav, and the accused no.3 came there. The appellant no.2 exhorted the accused no.3 to kill the deceased. The deceased tried to run away when the accused no.3 fired a bullet at him by a musket. The bullet hit the back of the deceased. He tried to run away. However, he fell near the wheat field of one Chadi Rai. After that, all the three accused started assaulting the PW4. When PW5 tried to intervene, he was also assaulted by the accused no.3. The accused no.3 assaulted PW4 with the butt of the musket. On hearing the noise, villagers came there when the accused ran away. According to the prosecution case, apart from PW4 and PW5, the incident was witnessed by PW1 (Rinku Yadav), PW2 (Pinku Yadav) and PW3 (Subodh Pd. Yadav). Jawahar Yadav and one Tribedanand were also the witnesses who were not examined.

3. The motive pleaded by the prosecution is that two months before the incident, the accused no.3 had brought a horse of one Awadhi Yadav by committing theft. After learning about the theft, Awadhi Yadav called upon the accused no.3 to return the horse. When the accused no.3 tried to assault the said Awadhi Yadav, the deceased saved him, and therefore, the accused no.3 was annoyed with the deceased. Both the courts have believed the testimony of the eyewitnesses.

SUBMISSIONS

4. The submission of the learned counsel appearing for the appellants is that the only allegation against the appellant no.2 was of exhortion. There was no allegation against appellant no.1 of assaulting the deceased. The submission of the learned counsel appearing for the appellants is that there was no evidence of common intention shared by the appellants and the accused no.3. Therefore, the appellants could not have been convicted for the offences punishable under Section 302 with the aid of Section 34 of the IPC. His submission is that apart from the fact that the motive was not proved, in any case, even according to the prosecution, there was enmity between the deceased and the accused no.3. He submitted that PW1, PW2 and PW3 were the sons and real brother of the deceased respectively and were interested witnesses. It is doubtful whether PW4 and PW5 had actually seen the incident. According to the prosecution case, PW4, PW5, and

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