Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 13821384 OF 2014
Bal Mukund Sharma @ Balmukund Chaudhry
Etc., Etc. .....Appellants
Versus
The State of Bihar .....Respondent
J U D G M E N T
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
th
passed by the 7 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
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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,
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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 eye
witnesses. 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
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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 than quote
them in their entirety, we find it necessary to discuss only those
aspects of their respective depositions that pertain to the roles
attributed to the various accused.
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PW1, a cousin of the deceased, deposed to seeing the
informant PW2 and his wife get accosted by a mob of 2025
persons. On being threatened, these two persons ran away and
hid within their house. The accused unsuccessfully tried to force
their way in, and the accused Mahendra and Babulal set fire to
the baithakkhana of PW2’s house. The accused then dragged
away the deceased from his field to that of the accused
Brahamdeo Chaudhry, who shot the deceased, causing his death.
Several villagers thereafter assembled in the field of the deceased,
seeing which the accused Brahamdeo and Kapildeo opened fire
on the villagers, injuring PW3 Shanti Devi, PW5 Subhash Sao,
and PW6 Wakil Yadav. PW1 also deposed that PW4 Kokai Sao
was shot at when he ran to the spot, thinking that his son
Subhash had been killed, and was assaulted by the accused by
lathi , bhala , sword and gun.
PW2, the informant, also corroborated the above version. In
particular, he affirmed that the accused Brahamdeo had shot the
deceased, causing his death, and that when the accused
Brahamdeo and Kapildeo opened fire on the villagers, PWs 3, 5
and 6 got injured. He also deposed that subsequently, PW4 Kokai
Shah was assaulted by gun, bat, sword, bhala and lathi .
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PW7, Jugli Devi, the informant’s wife, also deposed to seeing
the accused Brahamdeo Chaudhry shoot the deceased, causing
his death.
PWs 3 to 6 are the injured eyewitnesses.
PW3, Shanti Devi, the cousin sisterinlaw of the deceased
also deposed in a similar manner as the above eyewitnesses.
She too deposed that the deceased was killed by the accused
Brahamdeo with a gunshot, and corroborated the aspect of firing
upon the villagers, in which PW5, PW6 and PW3 herself got
injured.
PW4 is Kokai Sao, the father of PW5 Subhash Sao. He
deposed that he had reached the spot of the incident while the
accused were dealing with the body of the deceased, and had
accosted them thinking that the body was of his son. At this
point, the accused Brahamdeo fired upon PW4 but missed. He
also deposed that the accused Anil and Bhavesh attacked PW4
with bhalas , the accused Babulal attacked him with a sword, and
the accused Mahendra Rai assaulted him with a lathi .
PW5, Subhash Sao, PW4’s son, deposed that he saw the
deceased being shot by the accused Brahamdeo with a gun and
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by the accused Kapildeo with a pistol, and that he got injured
along with PW6 and PW3 in the subsequent firing upon the
villagers. He also deposed to seeing the accused Brahamdeo fire
at his father, and the other members of the mob assault his
father with lathis , bhalas , and swords. However, in his cross
examination he stated that he did not remember who in
particular had attacked his father, and with what weapon,
though he did affirm that his father had received a bullet injury.
PW6, Wakil Yadav, too lived in the same locality as the
deceased. He testified to seeing the accused Brahamdeo and
Kapildeo fire at the deceased, and deposed that he, along with
PWs 3 and 5, was wounded in the subsequent firing by these two
accused.
It may also be noted that out of the six eyewitnesses, only
PW1 and PW3 actually witnessed PW2’s baithakkhana being set
on fire, out of which only PW1 specifically deposed that it was the
accused Mahendra and Babulal who started the fire.
In addition, PW1 deposed to the presence of the accused
Brahamdeo with a gun, the accused Kapildeo with a pistol, the
accused Babulal and Ashok Rai with swords, the accused Sanjay,
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Pankaj, Sunil, Kishore, Mahendra Rai, Sadanand and Mani with
lathis , and the accused Anil, Balmukund, Manoj, and Bhavesh
with bhalas . PWs 2, 4 and 9 supported the testimony of PW1 as
to which accused were present at the time of the incident, and
bore which weapon. PW4, however, did not name the accused
Sunil and Mani, and PW9 did not name the accused Balmukund
or attribute specific weapons to the accused Sunil and Sanjay.
PW3 identified only the accused Brahamdeo and Kapildeo as
being present at the spot of the incident, and could not speak as
to the presence of any other accused in particular. PWs 5 and 7
generally spoke of the presence of several of the accused, without
attributing any specific weapon to any of them, apart from
attributing a gun and pistol as being carried by the accused
Brahamdeo and Kapildeo respectively. PW6, too, named several
accused, and generally stated that all the accused except for
Brahamdeo and Kapildeo were equipped with bhalas , lathis and
swords. It may be noted that PW10, the village watchman,
deposed to seeing a mob of 3035 persons, out of whom he
identified the accused Brahamdeo as being present with a gun,
Kapildeo with a pistol, and the accused Babulal, Pankaj, Sanjay,
Mahendra and Anil Chaudhry only.
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Clearly, apart from PW4, who did not witness the incident of
firing upon the deceased or the villagers, the eyewitnesses have
consistently deposed that the accused Brahamdeo shot the
deceased, and he along with the accused Kapildeo fired upon the
villagers, injuring PWs 3 to 6. PWs 4 and 5 additionally stated
that the accused Kapildeo too shot the deceased. PW4 testified to
being attacked by the accused Mahendra Rai with a lathi , by the
accused Babulal with a sword, and by the accused Bhavesh and
Anil with bhalas , and was fired upon but missed by the accused
Brahamdeo. PWs 2 and 5 also generally deposed that PW4 was
assaulted with various weapons, without naming any accused in
particular. PW5 supported PW4’s version of being shot at by
Brahamdeo. Notably, the Trial Court excluded PW4’s gunshot
injury as a mere embellishment.
7. Having regard to the material on record, including the
ocular testimony of the witnesses and the evidence of the doctors,
we are of the considered opinion that the Courts below were not
justified in convicting any of the accused other than the accused
Brahamdeo for the offence under Section 302, IPC, by taking the
help of Section 149, IPC. We also find that nine of the accused,
namely, Balmukund Chaudhry, Ashok Rai, Kishore Rai, Sunil
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Chaudhry, Mani Chaudhry, Pankaj Chaudhry, Sanjay Chaudhry,
Manoj Chaudhry and Sadanand Chaudhry (hereinafter referred
to as “the nine accused”) could not have been convicted for any of
the offences with which they were charged, inasmuch as the
evidence of the witnesses and other material on record, in our
considered opinion, was not very reliable, and was insufficient to
bring home guilt against them. This is in spite of the fact that
such accused were stated to have been present on or near the
scene of occurrence. Even in respect of the remaining accused
(except for Brahamdeo), the Courts below should not have
convicted them for the offence under Section 302, IPC with the
help of Section 149, IPC, though they are liable to be convicted
for various different offences in which they had actually
participated during the incident in question.
8. The evidence of the eyewitnesses pertaining to the nine
accused has been adduced to prove that they were part of the
mob that killed the deceased, attacked the villagers and set a
portion of PW2’s house on fire. However, we find that there is
nothing on record to show that these accused had actually taken
part in the occurrence or that they had any common object of
committing murder and rioting along with the other accused.
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The evidence with respect to their presence, participation and
complicity in the incident in its entirety and, therefore, even in
sharing a common object for the commission of any of the acts
that occurred during the incident, is vague, scanty, inconsistent
and unbelievable, and necessitates giving them the benefit of
doubt. Thus, these nine accused are liable to be acquitted of all
charges levelled against them.
We are, therefore, of the view that there exists cogent
evidence only as to the role of the accused Brahamdeo Chaudhry,
Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh
Chaudhry and Anil Chaudhry (hereinafter referred to as “the six
accused”) in the incident. All of these six accused participated in
the rioting on the scene of the incident, in which the accused
Brahamdeo Chaudhry and Kapildeo Chaudhry were the only
persons having guns at the time, of whom the accused
Brahamdeo suddenly shot at the deceased and the accused
Brahamdeo and Kapildeo shot the injured. We agree with the
finding of the Courts that it was the accused Brahamdeo who
gave the fatal shot to the deceased. Though there was some
evidence (i.e. the deposition of PWs 5 and 6) to the effect that the
accused Kapildeo shot the deceased as well, the same was not
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believed by the Courts. We, too, find this evidence insufficient to
conclude that the accused Kapildeo shot the deceased.
We may now address the aspect of the constructive liability
of the accused Kapildeo Chaudhry, Mahendra Rai, Babulal
Chaudhry, Bhavesh Chaudhry and Anil Chaudhry for the murder
of the deceased. It is wellsettled that to determine whether an
accused, being a member of an unlawful assembly, is liable for a
given offence, it needs to be seen whether such act was
committed in prosecution of the common object of the assembly,
and alternatively whether the members of the assembly knew
that the offence was likely to be committed in prosecution of such
common object. This, in turn, has to be determined from the
facts and circumstances of each case. (See Dharam Pal v.
, (1975) 2 SCC 596;
State of Uttar Pradesh Roy Fernandes v.
State of Goa , (2012) 2 SCC (Cri) 111). In the instant case, it is
evident that the six accused initially accosted the 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, the
deceased, who was done to death by the accused Brahamdeo. It
is thus evident that the murder of the deceased was itself not the
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common object of the unlawful assembly. Moreover, we find that
the act of the accused Brahamdeo of shooting the deceased was
sudden, and knowledge of the likelihood of the same could not be
attributed to the rest of the accused. Though the other accused
had followed the accused Brahamdeo, in our considered opinion,
the evidence on record and circumstances of this case could not,
conclusively and beyond reasonable doubt, show common object
being shared by the other accused, in the commission of the
offence of murder by the accused Brahamdeo. It is no doubt true
that the evidence on record may create grave suspicion in the
mind of the Court about the complicity of the other accused also,
with the help of Section 149, IPC, however, such grave suspicion
cannot take the place of proof. It is for the prosecution to prove
its case beyond reasonable doubt. Even if the evidence on record
creates suspicion in the mind of the Court, though grave, the
same would not be sufficient to conclude that the other accused
are liable to be convicted for the offence under Section 302 along
with the accused Brahamdeo, with the help of Section 149, IPC.
In such circumstances, we are of the opinion that the
accused Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry,
Bhavesh Chaudhry and Anil Chaudhry cannot be said to have
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shared any common object for the murder of the deceased, and
cannot be made liable for the same. Notably, the Courts have
rightly held only the accused Brahamdeo and Kapildeo liable for
the attempt to murder the injured eyewitnesses by firing upon
them. However, for the aforestated reasons, only the accused
Brahamdeo can be held liable for the murder of the deceased. At
the most, it can be said that the role of the accused Mahendra
Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry
has been proved only insofar as the assault on PW4 is concerned,
through cogent and reliable evidence attributing specific and
overt acts to them.
We do not find any reason to disagree with the reasons
assigned and conclusions arrived at by the Courts in convicting
the six accused for the offence under Section 436/149, IPC, and
other offences for which they have been held guilty, except to the
extent stated supra.
9. It is worth noticing that the accused Kapildeo Chaudhry
died during the pendency of the appeals.
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10. Having regard to the totality of the facts and circumstances,
the judgments of the Trial Court and the High Court are to be
modified as under:
a. The conviction and sentence awarded to Brahamdeo
Chaudhry (Accused No. 9) under Section 302, IPC by the
Trial Court and the High Court is confirmed. His
conviction and sentence for other offences as ordered by
the Trial Court and the High Court is confirmed.
b. Since the accused Kapildeo Chaudhry has already
expired, the appeal filed by him abates.
c. Mahendra Rai (Accused No. 13), Babulal Chaudhry
(Accused No. 12), Bhavesh Chaudhry (Accused No. 11)
and Anil Chaudhry (Accused No. 14) are acquitted of the
charges under Sections 302 read with Section 149, IPC.
Their conviction for other offences as ordered by the Trial
Court and the High Court is confirmed. However, the
sentence as against them in respect of the offences for
which they stand convicted is modified to the period
already undergone by them in jail in this case. If they are
on bail, their bail bonds stand discharged.
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d. The other accused, namely Bal Mukund Sharma @
Balmukund Chaudhry (Accused No. 8), Ashok Rai
(Accused No.7), Kishore Rai (Accused No. 6), Sunil
Chaudhry (Accused No. 4), Mani Chaudhry (Accused
No.1), Pankaj Chaudhry (Accused No. 2), Sanjay
Chaudhry (Accused No. 3), Manoj Chaudhry (Accused No.
15) and Sadanand Chaudhry (Accused No. 5) are
acquitted of the charges levelled against them. If they are
on bail, their bail bonds stand discharged.
11. The appeals are allowed in part.
..........................................J.
(N.V. Ramana)
............................................J.
(Mohan M. Shantanagoudar)
............................................J.
(S. Abdul Nazeer)
New Delhi;
April 16, 2019.
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