REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 126-127 OF 2006

RAMDEO KAHAR & ORS.     … APPELLANTS

Versus

STATE OF BIHAR    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Appellants, who are three in number, are before us aggrieved by and

dissatisfied with a judgment and order dated 9.8.2005 passed by the High

Court of Judicature at Patna dismissing the Criminal Appeals preferred by

them and thereby upholding the judgments of conviction and sentence dated

9.1.2002  and  11.1.2002  passed  by  the  7th Additional  Sessions  Judge,

Nalanda.  

2. Appellants, the deceased and the prosecution witnesses are residents

of village Govindpur,  P.S. Silao in the District  of Nalanda (Bihar).   The

prosecution case, shorn of all unnecessary details, is as under:

On or  about  29.5.1997  at  about  3  p.m.  Sanjib  Yadav  (informant)

along with his  father  Mauji  Yadav (“the deceased”) were working in his

field.  Lakhan Yadav, Ragho Yadav, Anil Yadav, Inderdeo Yadav, Ramjee

Yadav and Dwarika Yadav were sitting under the shadow of a Pipal tree at

some distance.  

Accused  persons  who  were  eleven  in  number,  including  the

appellants  herein,  armed  with  country  made  gun,  country  made  rifle,

country  made  pistol,  Gadasa,  along  with  four  to  five  unknown  persons

armed with firearms came to the place of occurrence and started abusing the

informant and his father.  They are said to have inquired about one Patali

and asking him to come out.   

The deceased advised them not  to fight  whereupon Ramdeo Kahar

(Accused No. 4) made an exhortation whereupon Upendra Kahar (Accused

No.  1)  shot  from his  gun  hitting  the  deceased  on  the  right  side  of  the

stomach over his waist.  He tried to flee away but fell down in the field of

Prayag  Yadav.   Ramdeo  Kahar  (Accused  No.4)  assaulted  Ragho  Yadav

(P.W. 7) with lathi on his left hand and Shiv Shankar Paswan (Accused No.

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5)  assaulted  Anil  Yadav  (P.W.  6)  with  Gadasa  on  his  head.   Accused

persons thereafter made good their escape.  The deceased, however, while

being taken to the hospital breathed his last.   The motive for commission of

the said offence was said to be long standing enmity between the parties.  It

was  furthermore  alleged  that  on  or  about  28.5.1997  while  some female

members  of  the  informant’s  family  were  bringing  water  from  a  well,

Upendra Kahar (Accused No. 1) in a state of intoxication misbehaved with

them to  which Patali  Yadav objected  wherefor  he was threatened by the

Accused No.1.  

3. A large number of  witnesses were examined by the prosecution in

support of its case.   

The learned Sessions Judge relying upon the evidences of P.W.1 –

Inderdeo Yadav, P.W.2 – Ramjee Yadav, P.W. 3 – Lakhan Yadav, P.W. 4 –

Dwarika  Yadav,  P.W.  5  –  Ramadhin  Yadav,  P.W.  8  -  Sanjib  Yadav

(informant) as  also the evidences of the injured witnesses P.W. 6 – Anil

Yadav and P.W. 7 – Ragho Yadav; held that the prosecution had proved its

case.   

4. The learned Sessions Judge, however, while recording a judgment of

conviction against  the appellants  herein acquitted the other eight  accused

persons, stating:

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“…All  the  witnesses  have  stated  that  it  was Ramdeo Kahar who passed an order upon which Upendra Kahar fired causing fatal injury to Mauji. Ramdeo further assaulted Ragho Yadav with Lathi on his left hand and Sheo Shankar Paswan gave a Garasa blow on the head of Anil Yadav.  Except these three accused persons no overt act has been alleged against any other accused persons or even whispered a single word against them although all were alleged to have been armed with rifle,  gun and pistol.  The prosecution case is that only one shot was fired by Upendra Kahar.  The remaining accused persons who were also armed with lethal weapons  did  not  commit  any overt  act  nor  they used  their  arms  against  any  one.   The  learned defence  counsel  further  submitted  that  the remaining eight accused persons have been falsely implicated in this case without any basis.  If they would  have  present  at  the  place  of  occurrence armed with lethal  weapons  as have been alleged they must have committed some overt act but not a single  witness  whispered  a  single  word  that  the remaining eight accused persons even touched the body  of  any  of  the  persons  of  the  prosecution party.  It has been further submitted that one of the accused  Shankar  Ram  was  arrested  by  the  I.O. from  the  house  of  his  brother-in-law  Upendra Kahar  in  the  night  of  29.5.97  itself.   During investigation  it  has  come  that  in  the  night intervening 27/28th of  May 1997 he slept  on the roof of the house of his father-in-law and he fell down from the roof and sustained injuries in his both  legs  and  at  the  time of  occurrence  he  was lying injured in the house of the father-in-law.  His complicity in the alleged occurrence was found to be  false  and  accordingly  he  was  not  charge- sheeted  but  cognizance  was  taken  against  him also.  The paper regarding his treatment has been brought on record as ext. C and C/1.  D.W. 2 in para  15  of  his  cross-examination  has  stated  that

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the fracture which Shankar Ram sustained might be caused due to fall.  

23. Taking  into  account  all  the  facts  and circumstances  of  the  case  and  the  evidence available  on  the  record  the  involvement  and complicity  of  the  accused  persons  namely  Bilas Paswan,  Arbind  Paswan,  Shankar  Ram,  Lallan Paswan @ Lalin Paswan, Nagina Paswan, Bengali Kahar,  Dashrath  Kahar  and  Mahendra  Kahar appears  to  be  highly  doubtful  and  therefore  all these  accused  persons  are  acquitted  giving  them benefit of doubt.”

5. It  has,  however,  been  brought  on  record  that  a  First  Information

Report  (for  short,  “FIR”) was also lodged by Accused No. 5 against  the

prosecution  witnesses  under  Section  307  of  the  Indian  Penal  Code  (for

short, “the I.P.C.”) for causing injury to him and Nagina Paswan.  What has

happened to the said case, however, is not known.  

6. Appellants  in  their  defence  examined  Ashok  Kumar  Acharya

(D.W.1), a Sub-Inspector of Police who had examined Accused No. 5 and

Nagina Paswan and prepared requisitions for their medical treatment.  D.W.

2 – Dr. Atma Nand Kumar examined them and found the following injuries

on their person.

“On the  person  of  Nagina  Paswan  he found the following injuries:

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(i) lacerated wound 1” x  ½ ” x muscle deep on lateral aspect of left sole.

(ii) Abrasion ¼” x ¼” on middle portion of left sole.

The injuries were caused by hard and blunt substance.  

On the person of Shiv Shankar Paswan he found the following injuries:

(1) Lacerated wound ½” x ½” x muscle deep on upper portion of lateral aspect of left fore arm.

(2) Abrasion  ¼”  x  ¼”  on  upper  portion  of lateral aspect of left fore arm.

These  injuries  too  were  caused  by  hard blunt substance.”

7. As regards the injuries suffered by Nagina Paswan and Accused No.5,

the learned trial judge opined that the same might have been caused due to

fall.  The High Court held:

“It  is,  thus,  to  be  seen  that  the  injuries  on  the persons  of  accused  were  so  trivial  and  nominal that  they required hardly any explanation  by the prosecution.   Having regard to  the  nature of  the injuries  it  can  not  even  be  ruled  out  that  those were caused by some friendly hands.”

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8. Dr. Rajeev B. Masoodkar, learned counsel appearing on behalf of the

appellants would submit:

i. Admittedly, the accused persons having come to cause murder

of  Patali,  the  appellants  cannot  be  said  to  have  formed any

common intention to commit the offence of murdering Mauji

Yadav.

ii. As the assault on the hands of P.W. 7 – Ragho Yadav is said to

have been caused by Ramdeo Kahar (Accused No. 4) and that

on Anil Yadav (P.W. 6) having been caused by Shiv Shankar

Paswan (Accused No. 5) after the shot was fired, they could not

have  been held  guilty for  commission  of  offence punishable

under Section 302/34 of the IPC.   

iii. The entire prosecution case must be considered on three parts,

i.e., (1) coming of the mob, exhortation by accused no. 4 and

firing of  a shot  by accused No. 1;  (2)  individual  assaults  by

accused Nos. 4 and 5 on Ragho Yadav and Anil Yadav; and (3)

injuries caused on Nagina Paswan and Shiv Shankar Paswan

(accused No. 5) by the prosecution witnesses.  

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iv. The learned Sessions Judge, as also the High Court committed

a serious error insofar as they failed to take into consideration

that an FIR was also lodged against the prosecution witnesses

and two of them suffered injuries which had not been explained

by  the  prosecution  and  in  the  aforementioned  situation  the

conviction of Ramdeo Kahar (accused No. 4) and Shiv Shankar

Paswan (accused No. 5) must be held to be bad in law.  

9. Mr. Anuj Prakash, learned counsel appearing on behalf of the State,

on the other hand, would contend that keeping in view the manner in which

the incident  took place, namely, appellants came together  with fire arms,

caused death of Mauji Yadav by using firearms and went back together is a

pointer to show that they had a common intention to commit the crime.   

10. The  prosecution  examined  eight  witnesses  in  support  of  its

case.   The  fact  that  Mauji  Yadav  suffered  a  homicidal  death  is  not  in

dispute.

The  post-mortem  examination  of  the  deceased  was  conducted  by

P.W.12 – Dr. Shashi Bhushan Singh, who found the following ante-mortem

injuries suffered by the deceased:

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“One wound of entry 1” in diameter with inverted charred margin with bleeding over right iliac fossa near anterior – superior iliac spine was present.”

The High Court noticed:

“On  dissection  the  abdominal  cavity  was  found full of blood, about 500 c.c. in volume.  Liver, was ruptured and embedded with bullet like structure’ on  external  surface  with  laceration  of  transverse colon  with  mesentery.   Other  abdominal  viscera like spleen, kidney, stomach were intact.”

In the  opinion  of  the  Doctor,  death  was caused  due  to  shock  and

hemorrhage by reason of the injuries caused by a firearm damaging vital

organs.  The medical report, thus, corroborates that Mauji Yadav was killed

by gun shot injuries.   

11. P.W. 11 – Dr. Awadhesh Pd. examined Ragho Yadav (P.W.7) and

Anil  Yadav  (PS  6)  and  found  the  following  injuries  on  their  person  as

noticed in the judgment of the High Court.

“On  the  person  of  Ragho  Yadav,  he  found  the following  injuries  which  according  to  him were caused by some hard and blunt substance:

“I. Lacerated  bleeding  wound  over  middle  of back of left fore hand size ¾” x ½” x 1/6”.

II. Reddish bruise over back of left arm,  

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size 3” x 1”. On the person of Anil  Yadav,  P.W.11 found the following injuries:

(i) Incised  bleeding  wound  with  clean  cut margin over left parietal area of head. ‘Size of injury – 2 2/1” x ¼” x ¼”

(ii) Tender  swelling  with  redness  over  back region of head. Size – 1 ½” diameter.

Injury No. (i)  was caused by some sharp cutting instrument  while  injury  No.  (ii)  was  caused  by some hard and blunt substance.”

12. The FIR had been lodged only within two hours.   

The prosecution case, inter alia, was proved by six eye-witnesses and

two injured eye-witnesses.  It had clearly been proved that the appellants

and  others  variously  armed  came  to  the  place  where  the  deceased  was

standing  in  the  field.   They asked  whereabouts  of  Patali  stating  that  he

would be killed. On a reply by the deceased that Patali was not there and

that there was no use for fighting, Accused No. 4 gave exhortation that he

should be killed, whereupon Accused No. 1 fired a shot from his country

made rifle which had hit on the right side of his abdomen, slightly above the

waist as a result whereof he took a few steps and fell down in the land of

Prayag Yadav.   

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When P.W. 7 – Ragho Yadav and P.W.6 –Anil Yadav ran towards the

deceased, they were not only intercepted, but also assaulted by Accused No.

4 and Accused No. 5.  Whereas a lathi blow was given on the person of

Ragho Yadav (P.W. 7) by Accused No.4; Anil Yadav (P.W. 6), who was

coming behind him was given a Gadasa blow on his head by Accused No. 5

as a result of which he fell down.   

13. Indisputably, thereafter all the accused fled away together and while

doing so they made indiscriminate firing from their weapons.  The injured

witnesses P.W. 6 and P.W.7 described the entire occurrence in great details.

We need not refer to their evidences as veracity thereof is not seriously in

question.   

14. Appellants  in  their  examination  under  Section  313  of  the  Code of

Criminal Procedure did not question the homicidal nature of death of Mauji

Yadav.  It was, however, contended that the prosecution witnesses had fired

at  Shiv  Shankar  Paswan  (Accused  No.  5)  and  caused  injury  to  Nagina

Paswan and in the process Mauji Yadav was killed by his own men.   

15. The  defence  of  the  appellants,  in  our  opinion,  has  rightly  been

rejected by the courts below.  Unlike the learned Sessions Judge or the High

Court, we would, however, assume that the prosecution has not explained

the injuries suffered by Nagina Paswan and Accused No. 5.  The injuries

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suffered by them were caused by a hard and blunt substance.  The injuries

were simple in nature.  They were not caused on any vital part of the body.

Whereas Nagina Paswan suffered injuries on his left sole, Accused No. 5

suffered injuries  on his  left  fore arm.  It  is  because  of  the nature  of  the

injuries, the learned Sessions Judge opined that the same might have been

caused by a fall.  That may or may not be correct.  But the fact that they

suffered simple injuries itself shows that non-explanation thereof would not

be sufficient to brush aside the prosecution case, particularly when the case

of the defence that one of them had suffered gun shot injury had not been

proved.   

We, therefore, agree with the findings of the courts below that death

of Mauji  Yadav and the injuries  suffered by the P.W.6 and P.W. 7 took

place in the manner stated by the prosecution.   

16. The  question  which  now arises  for  consideration  is  as  to  whether

appellants can be said to have formed a common intention.  Indisputably,

they came together.  They were also searching for one Patali.  The very fact

that all of them came heavily armed and that too with many firearms clearly

goes to show that a common intention was formed to commit a murder.  

17. Only  because  they  did  not  find  Patali  and  instead  committed  the

murder  of  Mauji  Yadav  by  itself  may  not  be  sufficient  to  arrive  at  a

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conclusion  that  they had no intention  to  commit  any offence  of  causing

murder.  Furthermore, whether they had the requisite intention or not must

also be judged from the surrounding circumstances.  Admittedly, Upendra

Kahar  (Accused  No.1)  fired  a  shot  on  exhortation  by  Ramdeo  Kahar

(Accused No. 4).  It has furthermore been proved that both Accused No. 4

and Accused No. 5 used the weapons in their hands in foiling the attempts

of Ragho Yadav (P.W. 7) and Anil Yadav (P.W. 6) to come to the place of

occurrence to help the deceased.   

18. Shiv Shankar Paswan (Accused No. 5) was carrying a Gadasa; he had

given a Gadasa blow on the head of Anil Yadav, a vital part of his body.

All  of  them  also  left  the  place  of  occurrence  together;  they  fired  shot

together at random so as to prevent the prosecution witnesses to chase them.

Common intention of the appellants, in our opinion, had, thus, been proved.

Even otherwise, common intention may develop suddenly at the spot.  In

this case, the genesis of the occurrence has been proved.  The motive for

commission of the offence has sufficiently been established.  The law does

not state that there has to be a long interval of time between the formation of

the common intention and the doing of the act.  The prosecution also is not

required  to  adduce  direct  evidence  as  regards  formation  of  common

intention.  Thus, it must be inferred from the surrounding circumstances.   

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19. If an unlawful assembly was formed and if an offence was committed

by a member of the unlawful assembly in prosecution of the common object

and with a knowledge that the same is likely to be committed in prosecution

thereof, the common intention must be said to have been proved.  When a

common  intention  is  proved,  each  of  the  persons  sharing  the  common

intention is constructively liable for the criminal act done by one of them.

{see Mohan Singh v. State of Punjab [AIR 1963 SC 174]}

20. In Nishan Singh v. State of Punjab [2008 (3) SCALE 416], this Court

held:

“20. In that case, two separate trials were held in the  sense  that  the  examination  in  chief  and  the cross  examination  of  the  prosecution  witnesses were over, when the trial restarted. It was in that factual  matrix,  this  Court  laid  down  the  afore- mentioned proposition of law.

Sub-section  4  of  Section  319  Cr.P.C, however,  must  be  read  with  the  residuary provision  contained  in  of  Section  375  thereof. Complaint  in  regard  to  non  compliance  of statutory provisions must be made at  the earliest opportunity.  When  a  judgment  is  pronounced;  a case  must  be  made  out  that  by  reason  of  a procedural  irregularity,  failure  of  justice  has occurred.  Section  465  of  the  Code  of  Criminal Procedure seeks to achieve a salutary principle.

21. What would constitute 'failure to justice' came up for consideration before this Court in  State of

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Madhya  Pradesh v.  Bhooraji  and  Ors.[(2001)  7 SCC 679], wherein, inter alia, it was held that:

“We conclude  that  the  trial  held  by the  Sessions  Court  reaching  the judgment  impugned  before  the  High Court  in  appeal  was  conducted  by a court  of  competent  jurisdiction  and the same cannot be erased merely on account  of  a  procedural  lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full  Bench  of  the  Madhya  Pradesh High Court.”

In  Dr.  M.C.  Sulkunte v.  State  of Mysore  [AIR  1971  SC  508],  this Court held:

‘It has been emphasized in a number of decisions of this Court that to set aside a conviction  it  must  be shown that  there  has  been  miscarriage  of justice  as  a  result  of  an  irregular investigation.’”

21. Dr. Masoodkar, however, has relied upon a decision of this Court in

Prakash vs. State  of Madhya Pradesh [(2006) 13 SCC 508] wherein it was

held:

“19. Proof of participation by acceptable evidence in  certain  circumstances  would  lead  to  a conclusion  that  the  accused  had  a  common intention  to  commit  the  offence.  Presence  or

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absence of community of interests may not be of much significance. Each case, however, has to be considered  on  its  own merit.  Facts  of  each  case may have  to  be  dealt  with  differently.  Common intention may develop on the spot. Although a pre- arranged plan and meeting of minds is one of the pre-requisites  to  infer  common intention,  a prior concert,  however,  can  be  inferred  from  the conduct of the accused. The role played by him, the injuries inflicted and the mode and manner in which the same was done as also the conduct of all the  accused  are  required  to  be  taken  into consideration  for  arriving  at  a  finding  as  to whether  the  accused  shared  a  common intention with others or not. Common intention may have to be inferred also from other relevant circumstances of the case. The totality of the circumstances must be taken into consideration  in arriving at  such a conclusion”

As noticed in the said decision each case depends on its own facts.  In

that case itself it was noticed:

“28.  Common  intention  on  the  part  of  the Appellant herein is evident. All the accused were armed with lathis. The deceased was unarmed. He was taken by surprise. He started running, but was chased.  The  witnesses  intervened.  They  tried  to pacify the appellant and the co-accused. They did not pay any heed thereto. They for the purpose of committing the assault even jumped over a hedge. As the deceased was running, evidently a blow on leg was given so  as  to  stop  him from doing so. Evidently he fell down, which facilitated the other accused to cause injuries on his person, including the fatal injury on his head.”

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22. In this case also the deceased tried to pacify the appellants and other

co-accused to which also they did not pay any heed.  In fact, the genesis of

the occurrence started at the instance of Ramdeo Kahar (Accused No. 4)

himself who gave exhortation to Upendra Kahar (Accused No. 1).

23. For the reasons aforementioned, we do not find any infirmity in the

impugned judgment of the High Court.  The appeals are dismissed.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 19, 2008

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