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2017 Supreme(Pat) 889
IN THE HIGH COURT OF JUDICATURE AT PATNA
SAMARENDRA PRATAP SINGH, ADITYA KUMAR TRIVEDI, JJ.
Umesh Singh son of Alakh Singh - Appellant
Versus
State of Bihar - Respondent
Criminal Appeal (DB) No.491 of 1992
Decided On : 30-01-2017
Advocate Appeared:
For the Appellant :Mr. Kanhaiya Prasad Singh, Sr. Advocate, Mr. Ramashish, Advocate
For the Respondent: Mr. Abhimanyu Sharma, APP.
The judgment emphasizes the necessity of proving common intention and the absence of evidence linking the accused with the occurrence in cases involving Section 34 of the Indian Penal Code.
Headnote:
Indian Penal Code - Murder - Section 302/34, Section 148, Section 27 of the Arms Act - The judgment discusses the application of Section 34 of the Indian Penal Code and the necessary ingredients for invoking this provision. It also highlights the importance of proving common intention and the absence of evidence linking the accused with the occurrence.
Fact of the Case:
The prosecution case involved the murder of Sudarshan Kahar, with witnesses stating that the accused entered the courtyard armed and committed the murder. The defence claimed that the accused were falsely implicated due to a previous murder case.
Finding of the Court:
The court found that the evidence of the witnesses was consistent and credible, rejecting the defence's argument that certain witnesses' evidence should be excluded. The court also held that the non-examination of the doctor who conducted the post mortem did not prejudice the prosecution case.
Issues: The key issues included the credibility of witnesses, the relevance of evidence from deceased witnesses, and the establishment of common intention under Section 34 of the Indian Penal Code.
Ratio Decidendi: The court emphasized the importance of proving common intention and the need for evidence linking the accused with the occurrence. It cited previous cases to support its decision.
Final Decision: The court set aside the judgment of conviction and sentence against the appellant, discharging them from the liability of bail bonds.
Samarendra Pratap Singh, J.
The instant appeal is filed against the judgment of conviction and order of sentence, both dated 17th December, 1992, passed by the 9th Additional Sessions Judge, Arrah in S.T. No.27 of 1979, whereby all the four appellants were convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life. The appellant Anil Singh was further convicted under section 148 of the Indian Penal Code and section 27 of the Arms Act and sentenced to rigorous imprisonment for three years on each count. However, appellants Umesh Singh, Jagarnath Rai and Baldeo Rai were convicted under section 147 of the Indian Penal Code and sentenced to under go rigorous imprisonment for two years. However, all the sentences were directed to run concurrently.
2. During the pendency of the appeal, the appellants Jagarnath Rai @ Jagarnath Singh, Anil Singh and Baldeo Rai died and as such the appeal as against them abated. The appeal, thus, survived against the appellant Umesh Singh.
3. The prosecution case, as set out in the fardbeyan of Ram Kishun Kahar of village Ekbari, P.S. Sahar recorded by the S.I. O.S. Singh of Sahar P.S. on 7.6.1978 at 8 A.M. at Police Camp in Village Ekbari, in short is as follows:
(i) The informant stated that the previous evening at about 8 PM, he along with his mother Shankaro Devi, sister-in-law Lalmuni Devi, Dil Sundra Devi, Badami Devi, Dhirikshan Devi, Shanti Devi, Panwati Devi, brother Somnath Kahar, Dasrath Kahar, Sudarshan Kahar and children, were in the court yard of his house. Some of the family members already had their food, while others were taking food. After taking his food, the informant’s brother Sudarshan Kahar went towards the northern lane for urinal just outside the house, whereas his sister-in-law Badami Devi went on to the roof. After urinal, his brother hurriedly came and bolted the door from inside and also went up the roof. Soon thereafter, he heard sound of fierce banging of the door. The female members put resistance to hold the door intact, but on account of force exerted from outside, the latch of the door gave way.
(ii) One Jagarnath Rai was the first to enter the court yard followed by Uma Prasad Singh, Anil Kumar Singh, Ashok Singh (sons of Shankh Singh) all armed with country made pistol as well as Umesh Rai and Baldeo Rai, all residents of village Ekbari. Accused Shankh Singh, Keshav Singh both sons of Nathuni Singh and Sakal Singh son of Ramnandan Singh also of village Ekbari stood in the lane facing the door. Shankh Singh was armed with rifle, where as Keshav Singh was armed with licensed gun and rests were armed with lathi. Baldeo Rai had a big torch in his hand. Uma Prasad Singh, Anil Singh and Ashok Kumar Singh started to look for Sudharshan Kahar soon after entering into the court yard. The wife of Sudharshan Kahar was already on the roof. Baldeo Rai was looking for Sudarshan Kahar with his torch. A small lamp (dhibri) was burning in the court yard.
(iii) The female of the house fell on feet of Uma Prasad Singh and pleaded to spare Sudharshan Kahar to which he did not relent and began to climb on the roof by means of bamboos ladder followed by Anil Kumar Singh and Ashok Kumar Singh. Other persons remained in the court yard. Baldeo Rai was showing torch light from below. They heard sound of two gun shots and also heard the cry of his brother Sudharshan Kahar “Jaan Gail”. Badamo Devi, wife of Sudharshan began to cry and sought to know from Uma Babu her husband’s fault. The three accused persons who had gone up on the roof returned to court yard by means of ladder. Sakal Singh and Sankh Singh were exhorting others to finish them as well, to which the informant begged mercy. It is alleged that as Sudarshan Kahar supported the rival candidate in the election of Mukhiya, Uma Singh being aggrieved, committed the occurrence along with other accused.
(iv) On the basis of the fardbeyan of the informant, Sahar P.S. Case No. 6(6) of 1978 was registere
