DUKHMOCHAN PANDEY SHAMSUL MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both these appeals arise out of one sessions trial, Sessions Trial No. 125 of 1975 which was disposed of by the learned Additional Sessions Judge, Darbhanga on 30th March, 1978. By the said judgment the accused persons were convicted under S. 302/149 and were sentenced to imprisonment for life. Twenty seven of the accused persons were convicted under S. 147 but no separate sentence was awarded. Rest of the accused persons were convicted under S. 148, IPC but no separate sentence was awarded. Accused Dukhmochan Pandey, Sarbnarain Mishra, Upendra Pandey, Sanjam Pandey, Jainandan Mishra, Kapileshwar Mandal, Bhuneshwar Mandal, Janak Das, Uttam Pandey, Tapeshwar Pandey, Kameshwar Pandey and Jiwachh Mishra were convicted under S. 302/34 and were sentenced to imprisonment for life. Then accused Dukhmochan Pandey, Srabaranarain Mishra, Nawal Kishore Pandey, Shiv Thakur, Jogendra Narain Pandey, Mahendra Narain Pandey, Shiv Shekhar Pandey, Saukhilal Yadav, Amirilal Yadav, Sukhram Mishra, Jainandan Mishra, Bamchandra Pandy and Ramchandra Sharma were convicted under S. 302/34 and were sentenced to undergo rigorous imprisonment for life. In other words while all the accused persons were convicted under S. 302/149, they were also convicted in two groups under S. 302/34, one group for causing murder of Razaullah and the other group for causing the murder of Ahmad Shah. After accused Jiwachh Mishra was convicted under S. 324 and were sentenced to undergo imprisonment for 2 years and accused Upendra Pandy, Sanjam Pandey, Kapileshwar Mandal, Jogeshwar Mandal, Aghanoo Mandal and Janak Das were convicted under S. 323 and were sentenced to undergo imprisonment for one year. In all there were 47 accused persons. On appeal, the Division Bench of the Patna High Court by judgment dated 11th of December, 1981 acquitted the accused persons of the charge under S. 302/149 but the conviction of the two groups of accused persons for causing murder of deceased Razaullah and Ahmad Shah under S. 302/34 passed by the learned Additional Sessions Judge and sentence passed thereunder was upheld. The conviction of different accused persons under S. 148 was upheld and sentence for three years in respect of the same accused persons was awarded. The conviction of 27 accused persons under S. 147 was upheld and sentence of imprisonment for two years was awarded by the High Court. Similarly, the conviction of the accused persons under S. 447 as well as under Ss. 323 and 324, IPC of the different accused persons was upheld but the High Court did not pass any separate sentence under these heads. Those accused persons whose conviction had been upheld by the High Court under S. 302/34, IPC have preferred Criminal Appeal No. 197 of 1982 and the appellants in other Criminal Appeal No. 198 of 1982 are those whose conviction under S. 147 has been upheld by the High Court.

(2.) Prosecution case in nutshell is that a dispute arose when informant - Kapileshwar Pandey sent labourers to his field for transplanting paddy seeds. On 25-7-1974 during morning hours while labourers of Kapileshwar Pandey numbering about 20 were transplanting paddy seeds on the field, at about noon time, a mob of 200 people armed with various deadly weapons came to the field and asked the labourers to stop their work. Kapileshwar Pandey, P.W. 18 objected to such high-handed action of the mob whereupon accused Uttam Pandey and Upendra Pandey directed the mob to kill the labourers. Soon thereafter accused Dukhmochan Pandey and Sarbnarain Mishra fired from their respective guns as a result of which Razaullah and Ahmed Shah, who were on the field fell down. The informant P.W. 18 being terribly frightened ran away to the nearby Janera field and took shelter keeping himself out of the sight of the assailants. He could see the various attacks of different accused persons on the labourers who were on the field. While indiscriminating assault on the labourers was going on somebody cried out that Magistrate with the police has arrived. The accused persons hearing such call run from the place of occurrence. P.W. 18 who had taken shelter in the nearby Janera field then came out and went upon the field where he found two deceased lying injured. Immediately after P.W. 18's arrival on the field P.Ws. 5 and 13 reached there and they were followed by the Magistrate and the armed forces. The informant P.W. 18 wrote a detailed account of the incident and gave the same to the Magistrate P.W. 25. It may be stated here that on account of some tension in the village a Magistrate and some armed forces were camping in the village but on the relevant date of occurrence they were not at the place of occurrence but arrived there soon after coming to know of the incident. P.W. 6, the village Chowkidar being aware of the tension on the field reported the same to the Hawaldar P.W. 21 and P.W. 21 directed the Chowkidar to inform at the police station. Pursuant to the aforesaid direction, P.W. 6 arrived at the police station at about 11.30 a.m. and gave a report to the officer in-charge, P.W. 24 who made a station diary entry No. 458. The said P.W. 24 after making the station diary entry left for the village and reached the place of occurrence at 3 p.m. It is at that point of time the written report given by P.W. 18 to the Magistrate was handed over to him which was treated as the First Information Report and thereafter he took up the investigation. He made the inquest over the two dead bodies and then sent the dead bodies for post-mortem examination. In course of investigation he had also made some seizure, but later on under the order of the supervising authority. P.W. 26 took over the investigation from him and said P.W. 26 after completion of investigation submitted the charge-sheet. The accused persons were committed to the Court of Sessions and stood their trial. The defence put forward by the accused persons was one of denial. The prosecution examined 32 witnesses in all of whom PWs. 8, 9, 11, 14 and 15 were injured in course of the occurrence. PWs. 7, 9 and 10 are the seizure witnesses. P.W. 19 is the Deputy Collector who had been deputed to watch post-mortem conducted on the deceased. P.W. 32 is the doctor who conducted the post-mortem examination. P.W. 22 established the fact that under the order of the supervising authority investigation was transferred from P.W. 24 to P.W. 26. P.W. 25 is the Magistrate and PWs. 27, 28 and 29 are the members of the armed force who were in the village camping. The learned Sessions Judge on a thorough scrutiny of the prosecution evidence came to hold that the prosecution has been able to prove the charges against the accused persons beyond reasonable doubt. On appeal, the High Court re-appreciated the entire evidence on record. On such re-appreciation the High Court came to the conclusion that P.W. 18 was there at the scene of occurrence and had come to the field being accompanied by Razaullah. Looking to the F.I.R. which was stated to have been written on the scene of occurrence and was later handed over to the investigating officer, the High Court came to the conclusion that the prosecution story that F.I.R. was written on the place of occurrence itself is obviously incorrect. But merely on that score the High Court did not agree with the submission of the accused persons that the entire case is a concocted one. Thereupon, the Court scrutinized the evidence of the eye-witnesses and ultimately came to hold that prosecution case as unfolded through those witnesses implicating the accused persons in the commission of two murders must be held to have been established beyond reasonable doubt. In coming to the aforesaid conclusion apart from holding that the occular statement of the eye-witnesses corroborates each other, Court also came to the conclusion that the medical evidence corroborates the prosecution case. An argument advanced on behalf of the accused persons that the prosecution party was the aggressor and came upon the field to dispossess one of the accused persons Sanjam Pandey was rejected by the High Court. According to the High Court a well organized mob fully armed with various weapons indulged in several attacks including gun shots which ultimately resulted in the death of two persons and several other members of the prosecution party were injured. The High Court, however, on scrutiny of the evidence on record came to hold that the object of the unlawful assembly being to stop the labourers from transplanting paddy seeds on the field in question, the conviction under Section 302/149 cannot be upheld and accordingly the said conviction and sentence passed thereunder was set aside. But as stated earlier the conviction on other counts was maintained.

(3.) Mr. U. R. Lalit, the learned senior Counsel appearing for the appellans in Criminal Appeal No. 197 of 1982 contended that the star witness of the prosecution is Kapileshwar Pandey, P.W. 18 and his evidence is unbelievable and shaky and could not be relied upon. So far as the other eye-witnesses are concerned according to Mr. Lalit they have merely repeated the incident in a parrot like manner and the very fact that each of them have mentioned the name of the accused persons in the same chronology is enough to hold that they are the tutored witnesses and as such no reliance can be placed on them. The further argument advanced by Mr. Lalit is that if two of the appellants had gun with them and both of them simultaneously fired the gun as stated by the prosecution witnesses but they have not been able to indicate as to whose gun shot hit which deceased, the conviction of these appellants dividing in two groups and making each member responsible for death of one of the deceased is wholly unsustainable. According to Mr. Lalit the delayed examination of the prosecution witnesses under Section 161, Cr.P.C., the finding that the F.I.R. was not written at the place of occurrence as alleged by P.W. 18, the number of injuries on the deceased do not commensurate with the number of accused persons alleged to have assaulted the deceased, all taken together creates sufficient doubt in the prosecution case, and therefore, the accused persons are entitled to get the benefit of doubt. Mr. Lalit also urged that the charge under Section 149 having failed and the object of the assembly being to desist the labourers transplanting paddy seeds, unless and until it is established that the assailants developed a common intention at the spot of occurrence to kill the two persons the conviction under Section 302/34 cannot be sustained. According to the learned Counsel it is, therefore, necessary for the prosecution to establish that the so called attackes by each of the accused persons was with intention to kill so that it can be concluded therefrom that a common intention to kill the deceased developed at the spur of the moment. Judged from this angle, if some of the accused persons assaulted the deceased after they fell down after receiving the gun shot, by means of lathi not on vital part of the body of the deceased but on the leg or some other part where minor injuries have been found by the doctor then such of the accused persons cannot be convicted by taking recourse to Section 34 with the main offence under Section 302, IPC. The learned Counsel had also urged that the gun shot injuries are not on the vital part of the body, and therefore, the persons who have been alleged to have given the shot injuries cannot be held liable for the offence of murder.