The main legal point established in the judgment is the cautious scrutiny of inimical witness testimony and the application of vicarious liability under Section 149 IPC.

ORDER :

Shree Chandrashekhar, J.

In Sessions Trial No. 52 of 1998, Budhan Ganjhu was charged under sections 147, 148, 149, 341, 323, 307, 302 of the Indian Penal Code, section 27 of the Arms Act and section 17(i)(ii) of the Criminal Law Amendment Act for committing murder of Jhamman Singh with firearm.

2. The judgment of conviction dated 26th April 2012 of the appellant under section 302 read with 149 IPC, sections 148, 341 and 307 IPC as well as under section 27 of the Arms Act and section 17(i)(ii) of the CLA Act and the order of sentence dated 30th April 2012 passed in Sessions Trial No. 52 of 1998 have been challenged by the appellant by filing the present criminal appeal under sections 374(2) of the Code of Criminal Procedure (in short, Cr.P.C).

3. Chatra PS Case No. 104 of 1997 has been registered on the basis of the fardbeyan of Bishun Singh which was recorded on 7th September 1997 at around 10:45 AM at village Amkudar. In his statement made before the officer-in-charge of Sadar (Chatra PS), Bishun Singh has narrated incident of 6th September 1997 in which he alongwith Parmila Devi and Kawleshwar Singh Bhokta have suffered injuries and his father Jhamman Singh has died. In the said occurrence, 10 persons have died on account of firearm injuries in course of exchange of fire between two groups of people. While the investigation against other accused continued, a charge-sheet was laid against the appellant for committing the offence under sections 147, 148, 149, 341, 323, 324, 307, 302 IPC, section 27 of the Arms Act and section 17(i)(ii) of the CLA Act. The autopsy over the dead body of Jhamman Singh was conducted by Dr. Shyam Nandan Singh who has found a punctured wound on the left lateral side of his neck and oval wound on his left temporal region. In the opinion of the doctor, the aforesaid injuries were caused by firearm and the time elapsed since death was between 24 to 36 hours.

4. On the basis of the materials collected in course of the investigation charges were framed against Budhan Ganjhu under sections 147, 148, 149, 341, 323, 324, 307, 302 IPC, section 27 of the Arms Act and section 17(i)(ii) of the CLA Act, by an order dated 26th February 2001.

5. To prove the charge as framed against the appellant, the prosecution has tendered evidence through 15 witnesses out of whom Bhola Singh who was examined as PW3 is son of the deceased.

6. The learned trial Judge has appreciated the prosecution evidence in the following manner:

“16. It has further come in para 13, 14, 15, 16, 17, 18 and 19 of P.W.9 that Kauleshwar Singh, Bishun Singh, Ramdev Bhuian, Kola Singh Bhokta, Kauleshwar Bhuian, Budhan Singh and Pramila Devi were also examined by the doctor for their injuries which they allegedly received in course of occurrence. Some of these alleged injured persons have been subjected to witness box and they have specifically stated about the injuries which they received during occurrence and their evidence has been fully corroborated by P.W.9 in his evidence. Thus it is clear that P.W.3, 4, 5, 6 & 14 were present at the P.O. and they saw the occurrence in which accused Budhan Ganjhu killed Jhaman Singh, the father of Bhola Singh and others by inflicting fire armed injuries.

17. It has been argued on behalf of defence that there was no motive in the mind of accused to cause the occurrence as the motive has not been proved by the prosecution and in absence of such motive, no conviction can be warranted u/s 302 IPC. It is significant to mention here that prosecution has successfully establish that on 06.09.97 at about 11:00 AM a meeting was arranged in village Amkudar beneath the 'imali, tree and it continued till 4:00 PM when rain started and simultaneous with the rain, firing started in which 10 persons were killed at spot and several others were injured and any way survived. The circumstances clearly reveal that there was a complete preparation to make such attack on the mob collected beneath imali tree started with common design o