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2003 (2) Crimes 211
Patna High Court (DB)
Manohar Lal Visa & Balkrishan Jha, JJ.
Munsi Hasda & Anr. —Appellants
versus
State of Bihar —Respondent
Crl. Appeal No. 235 of 1993 and with Crl. Appeal No. 380 of 1995
Decided on 21-11-2002
For the Appellants :Mr. Sunil Kumar Mandal, amicus curiae, Mr. Arun Pd. Ambastha, Mr. Ravindra Kumar Choudhary, Mr. Rupesh Ranjan, Advocates.
For the Respondent:Mr. Bhagya Narain Gupta, Advocate.
Important Point
When one of the accused committed murder of a passerby who was not the member of prosecution party, then for that individual act of co-accused, other accused could not be convicted with aid of Section 149 IPC.
Headnote:Indian Penal Code, 1860 — Sections 147, 323 and 302/149 — Informant and other village people were going to Magistrate to complain that Advasis were extending their illegal possession of land and were assaulting villagers — Two appellants with other two deceased armed with arrows and phatta assaul-ted informant PW 7 and PW 8 — Informant then with more villagers proceeded to pacify Adivasis — Other accused shot an arrow hitting abdo-men of deceased who died on spot — Conviction of appellant by aid of Section 149 IPC — Appeal — Decea-sed at the occurrence was a passerby and was not a member of prosecution party — He was scolded by accused who shot him with arrow — Action of co-accused in shooting an arrow on deceased was a separate act not committed in prosecution of common object of unlawful assembly — Appe-llants could not be convicted for individual offence of co-accused — Charge for other two offences under Sections 147 and 323 IPC also found unsustainable — Conviction was unsustainable. (Paras 8 to 10)
Result: Appeal allowed.
Judgment
M.L. Visa, J.— Both these appeals, arising out of same judgment dated 8-4-1993 and order dated 12-4-1993 passed by the Additional Sessions Judge, Purnea in Sessions Trial No. 265 of 1991 convicting and sentencing both the appellants to undergo rigorous imprisonment for life under section 302 read with Section 149, Indian Penal Code, rigorous imprisonment for three months under Section 147, Indian Penal Code and rigorous imprisonment for one month under Section 323. Indian Penal Code and ordering for all these sentences to run concurrently, have been heard together and are being disposed of by this common judgment.
2. The case of prosecution in short, as disclosed by the fardbayan of informant Arjun Mandal (PW 15) is that on 20-4-1990 at about 1.30 a.m., the informant, alongwith Umesh Ram (PW 6), Krishna Kumar Mandal (PW 7) and Vibhishan Mandal (PW 8) was going to a Magistrate deputed in the village to complain that Adivasis (members of a tribal community) were extending their illegal possession of land and they were blocking the entry of villagers from all the sides and were becoming ready to assault the villagers who wanted to go outside the village. When he reached near the boring of one Sarjug Mandal, both the Appellants, alongwith Raghu-nandan Murmu and Ramji Murmu, armed with arrows and Phatta (bamboo) sticks) came there and saying that why they were crossing through their land, Raghunandan Murmu pierced an arrow on the right thigh of informant and Ramji Murmu assaulted Krishna Kumar Mandal (PW 7) with Phatta and both the appellants assaulted Vibhishan Mandal (PW 8) with phatta, fists and slaps. The informant and his companions ran here and there and informant came to his house and he narrated the incident to his villagers and he, out of fear, could not go to Police Station but he, along-with some of his villagers, namely, Bipin Mandal (PW 9), Laxmi Ram (PW 3), Puran Ram (PW 2), Shyamlal Mandal (PW 5), Chulhai Ram (PW 11), Charitar Mandal (PW 4), Krishna Kumar Mandal (PW 7), Vibhishan Mandal (PW 8) and Umesh Ram (PW 6) proceeded to pacify the Adivasis and when they all reached a place from where the disputed land is situated about 150 yards towards north east, both the appellants alongwith Raghunandan Murmu, Ramji Murmu, Sanichar Murmu, Chando Hasda, Thakur Soren, Bindeshwar Soren and others, variously armed with arrows and Phatta, started throwing arrows on them. In the meantime, Bido Yadav was going to his house from eastern side and co-accused Raghunandan Murmu thinking that he was member of prose-cution party called him and when Bido Yadav looked at him, Raghunandan Murmu shot an arrow hitting on the abdomen of Bido Yadav who fell down and died on the spot. The informant
and his companions, thereafter, went running to the Magistrate for informing him about the occurrence. In the mean-time, the appellants and their compa-nions started setting fire to their own huts. The fardbeyan of informant was recorded by Sub Inspector Rameshwar Prasad (PW 17) on the same day at about 7 p.m. in the village of occur-rence. About the motive of occurrence, the informant, in his fardbeyan, has stated that appellants on the land of Laxmipur Baphariya Primary School given in charity by Charital Mandal, Baleshwar Mandal and Mahendra Mandal, had illegally constructed huts for which a case at Baphariya Police Station was already lodged and appe-llants and their companions were exten-ding the area of their encroachment and they had closed the entry of the villagers. On the basis of Fardbeyan of informant, a case by drawing formal first information report (Exhibit-4) under Sections 47, 148, 323, 307 and 302, Indian Penal Code was registered against both the appellants and six others. After investigation police sub-mitted charge-sheet against the appe-llants and co-accused Raghunandan Murmu and Ramji Murmu. The case was committed to the Court of Session where charges under Sections 147, 323, 302/149 were framed against both the appella
