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CASE NO.: Appeal (crl.)  604-605 of 2004

PETITIONER: RAMESHWAR PANDEY & ORS.          

RESPONDENT: STATE OF BIHAR                   

DATE OF JUDGMENT: 18/01/2005

BENCH: B.P.SINGH & ARUN KUMAR

JUDGMENT: J U D G M E N T B.P.SINGH,J.     

       The seven appellants before us were tried along with five others  by the First Additional Sessions Judge, Bhabua (Kaimur) in Sessions  Trial No. 242/5 of 1995/1999 charged of the offences under Sections  302/34, 120B, 364 and 384/34 IPC and Section 27 of the Arms Act.  The Trial Court by its Judgment and Order dated 13th August, 1999  found the appellants guilty of the offence under Sections 302/149,  384/149 and Section 27 of the Arms Act. It sentenced them to undergo  imprisonment for life under Section 302/149 IPC and further  sentenced them to undergo                                                   1 year rigorous imprisonment under Section 27 of the Arms Act. It,  however, acquitted four of the accused persons of all the charges  levelled against them primarily on the ground that they were not  named in the First Information Report. All the convicted persons  preferred appeals before the High Court being Criminal Appeal Nos.  DB455 and 464 of 1999. The State also preferred Government Appeal  No.20/1999 against the acquittal of the remaining accused. The High  Court by its impugned judgment and order dismissed the appeals  preferred by the appellants as well as the Government Appeal  preferred by the State. Seven of the appellants have preferred these  appeals by special leave.         The case of the prosecution is that an occurrence took place on  28th August, 1994 at about 9.00 A.M. in village Dawanpur which falls  within the jurisdiction of police station Bhagwanpur in the District of  Kaimur, Bihar in which five members of the family of the informant  were killed. According to the prosecution 18-20 armed people in  khaki uniform came to the dalan of the                                                   deceased. Five male members of the family (since deceased) who  were sitting in the dalan of the house after taking their breakfast were  surrounded by them. PW8, a female member of the family rushed to  the door and finding so many persons armed with fire arms closed the  door and rushed inside the house. She along with three other female  members of the family went to the roof of the house along with the  licensed gun of one of the deceased and a bundle of cartridges. From  the roof of the house she and the other female members saw that those  people who had surrounded the deceased had tied their hands behind  their back. They were demanding the gun and the cartridges. The  father-in-law of PW8 implored PW8 to give away the gun otherwise  all of them will be killed. Heeding to his advise, she threw the gun  from the roof along with the cartridges. One of the members of the  mob picked up the gun and cartridges whereafter all five male  members of the family whose hands had been tied were taken by the  mob towards the South. Soon thereafter the female members of the  family heard the sound of gun shots                                                  

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10-15 in number. Later they were informed that all the persons who  had been taken away by the mob have been shot dead. These four  female members of the family are PW 5, 6, 7 and 8.

       The case of the prosecution is that PW10, Sub Inspector of  Police at the police station got some information from a passerby that  an occurrence had taken place in village Dawanpur. He, therefore,  rushed to the village where on his request PW5 opened the door and  on his questioning her narrated the incident to him. The report was  taken down in writing on the basis of which a formal first information  report was drawn up.

       PW1, Sanjay - the son of PW8 stated that he had seen the actual  incident in which all the five members of his family were shot dead  and he had thereafter informed his uncle Dadan Pandey (PW4) about  the occurrence. It is not necessary to advert to their evidence because  the Courts below have not relied upon their evidence. As                                                   

noticed earlier, the Trial Court on the basis of the evidence primarily  of the four female members of the family (Pws 5 to 8) convicted the  appellants, and the High Court in appeal has affirmed the conviction.         It was sought to be argued before us that the evidence of the  female witnesses is unnatural and should not be accepted. It was also  submitted that having picked up the gun and the cartridges they did  not resort to firing thereafter, and simply went to the roof of the house  only to watch what has happening below. It was further submitted that  PW8 who was the first person to come to the door from where the  dalan was visible rushed back saying that the miscreants had come. It  was only later that from the terrace she identified the members of the  mob. The submission is that she was not able to identify them initially  and only later she claims to have identified them. Learned Counsel  also contends that Section 149 will not apply to the facts of this case  because the evidence on record and the findings recorded by the  Courts below do not establish that the unlawful                                                   assembly had the common object of committing the murder of the  deceased. Much was sought to be made of an observation in the  judgment of the High Court that the prosecution had left the Court  guessing as to whether the miscreants had come to kill the five  persons  or they had come to commit dacoity or they simply wanted  the gun. From this observation it was sought to be urged that even the  High Court was not clear as to what was the common object of the  said unlawful assembly. He, therefore, submitted that the conviction  under Section 302 read with Section 149 IPC is not warranted.

       With the assistance of the Counsel for the parties we have gone  through the evidence on record. We find no reason to disbelieve PW5  to PW8 who witnessed the first part of the occurrence which took  place in the dalan of their house. From their evidence it is established  that a mob of about 18-20 persons had come to their dalan armed with  fire arms. At least 10 of them  

                                                could be identified by name. They surrounded the five male members  of the family who were sitting in the dalan. They thereafter tied their  hands and demanded their gun. For fear that all of them will be killed,  PW8 who had gone to the terrace along with the gun and cartridges  threw away the gun and cartridges which was picked by the  miscreants. Thereafter the miscreants took the male members of the  family along with them and moved in the southward direction. After  sometime, the female members of the family heard sound of gun  shots. Sometime later they were informed that all the five members of  the family had been shot dead in an orchard which was situated about  one furlong from their house.

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       On these facts, we have no doubt that the offence under Section  302/149 is proved. Learned Counsel submitted that circumstantial  evidence must conclusively prove the commission of the offence  under Section 302/149 IPC and the facts found should not be  consistent with any other hypothesis except the guilt of the accused.  We may                                                   

observe that this is not a case which is based entirely on circumstantial  evidence. The first part of the occurrence took place in the dalan of  the deceased. Thereafter they were taken away by the mob. It is the  prosecution case that later they were shot dead in an orchard nearby.  The first part of the occurrence is, therefore, proved by direct  evidence. The only question which arises for consideration is whether  the second part of the incident namely the killing of the five members  of the family can be attributed to the appellants on the basis of the  evidence on record.

       Once it is held that there was an unlawful assembly which had  an illegal common object, inasmuch as all of them came armed with  fire arms to the house of the deceased, the only question which  remains to be considered is as to what was the common unlawful  object of that assembly : whether they intended to cause the death of  the deceased or whether they simply intended to  

abduct them or commit any other offence. This is what precisely the  High Court has observed in paragraph 17 of its Judgment. It may be  that one or all of these unlawful acts were the objectives of the  unlawful assembly. The mob after coming to the dalan of the deceased  forced them to handover their gun by show of force. An offence under  Section 384 was, therefore, clearly made out and with the aid of  Section 149 IPC all the appellants can be held guilty of that offence.  The next question is whether they can also be held vicariously liable  for the offence of murder. Once it is held that there was an unlawful  assembly and all the appellants came to the dalan of the deceased  armed with deadly weapons like fire arms, and after tying the hands of  the deceased took them away, and soon thereafter gun shots were  heard and the deceased were found to have been shot dead in the  orchard nearby, no other inference except the inference of guilt can be  drawn from these circumstances. There is no material on record even  to suggest indirectly that the offence was  

committed by any other person or persons, or that some of the persons  who were initially members of the unlawful assembly disassociated  themselves and did not participate in the offence of murder. In the  absence of any such plea or material on record the application of  Section 149 IPCcannot be doubted. Having regard to the facts of the  case, particularly the fact that all the members of the mob had come  armed with fire arms i.e. deadly weapons with a view to commit the  offence under Section 384 IPC, all the members of the assembly must  be attributed the knowledge that it was likely that the offence of  murder may be committed in prosecution of that object. This is  particularly so because all the appellants were carrying fire arms and  had acted in a high handed manner in broad day light leaving no doubt  about their intentions. It may be that the actual shooting may have  been done by one or some of the appellants only, but applying the  principle enshrined in Section 149, each one of them must be held  vicariously liable for the offence committed even by some of them.  Even otherwise the facts lead to the only                                                 

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conclusion that the unlawful assembly had come determined to  commit the offence of murder. They were all armed, came together  and abducted the deceased who were soon thereafter murdered using  fire arms.  

       We are, therefore, of the view that the conviction of the  appellants is justified. There is no merit in these appeals and the same  are, accordingly, dismissed.