AKLOO AHIR v.

STATE OF BIHAR (Criminal Appeal No. 836 of 2009)

MARCH 11, 2010* [Harjit Singh Bedi and C.K. Prasad, JJ.]

2010 (4) SCR 604

The following Order of the Court was delivered

O R D E R  

This appeal by way of special leave arises out of the following facts:  

At about 5.00 p.m. on 10th January 1981 Kishore Bhagat had returned  

home along with his father after feeding their cattle. As they were entering the  

door of the house Garju Ahir one of the accused (since deceased) emerged  

from the North side and asked Kishore Bhagat to return his fodder machine.  

Kishore Bhagat, however, refused to do so on which Garju fired a shot at him  

which did not hit its target. Appellant Akaloo Ahir, thereafter, came from the  

same direction and fired another shot at Kishore Bhagat which too missed its  

target.  Following this attack,  Suresh Singh and Brij  Mohan Ahir  too came  

there and Suresh Singh handed over a cartridge to his companion who fired a  

shot with his gun which hit Kishore Bhagat on his chest and stomach killing  

him  at  the  spot.  Several  other  accused  armed  with  traditional  weapons,  

thereafter,  attacked Kishore Bhagat and caused several  injuries to him as  

well  and having done so the accused ran away from the spot leaving the  

dead body at the place where it had fallen.  

On the completion of the investigation the accused Brij Mohan Ahir was  

charged for the offence under Sec.302 of the IPC whereas the others were  

charged  under  Sec.302/34  of  the  IPC.  Garju  Ahir  and  Akaloo  Ahir,  the  

present appellants, were charged under Section 307/34 of the IPC and under

Sec.27 of the Arms Act as well. The Court of Sessions in the course of its  

judgment held that the prosecution story had been proved beyond doubt and  

that all the accused other than Garju Ahir (who had died during trial) were  

liable to conviction and sentence for the offences under which they have been  

charged. The matter was, thereafter, taken in appeal to the High Court and  

the High Court partly reversed the judgment of the trial Court holding that as  

the accused who had been armed with traditional weapons had not caused  

any injuries in the light of the statement of the Doctor, they were entitled to  

acquittal. The appeal filed by Suresh Singh, Brij Mohan Ahir and Akaloo Ahir  

was,  however, dismissed. The present appeal has been filed in this Court  

only at the instance of Akaloo Ahir.  

Mr. P.S. Mishra, the learned senior counsel has raised only one argument  

during the course of hearing. He has pointed out that from the facts it had  

emerged that  the appellant  could  not  have been roped in  with  the  aid of  

Sec.34 of the IPC for the offence of murder as there was no evidence to  

suggest  any  common  intention  along  with  the  two  co-accused  who  had  

committed  the  murder.  He  has  pointed  out  that  there  were  four  sets  of  

accused, the first being Garju Ahir, since deceased, the second Akaloo Ahir,  

the appellant  herein,  the third  Suresh and Brij  Mohan Ahir  and finally  the  

others six accused who had been acquitted by the High Court. He has further  

submitted that even assuming that the appellant was guilty of having fired a  

shot at Kishore Bhagat which had missed the target, the sentence of R.I. of  

ten years imposed under Sec.307/34 should be reduced.  

The  learned  State  counsel,  Mr.  Ritesh  Chaudhary,  has,  however,  

submitted  that  the  facts  revealed that  the  accused had all  come together  

pursuant to their common intention to kill Kishore Bhagat and his father and  

to  settle  once  for  all  the  animosity  between  them.  He  has  accordingly  

submitted that the judgment of the High Court needed to be affirmed.

The facts as are relevant have been given above. We find absolutely no  

suggestion whatsoever in the prosecution evidence of pre-concert or proof of  

a prior meeting of minds between the appellant herein and his co-accused.  

There is admittedly evidence to show that there was animosity between some  

of the accused and the complainant party but in the light of the fact that the  

accused  against  whom  the  animosity  had  been  suggested  have  been  

acquitted, this fact does not in any way come into play against the present  

appellant.  

It has also to be noticed that the accused were all living in close proximity  

to each other and could have been attracted to the spot on account of the  

noise that had been raised on account of the first attack by Garju Ahir. It has  

come in  evidence  that  both  parties  were  residents  of  Pokhra  Tola  which  

consisted  only  of  25  houses,  all  bunched  up  together.  The  possibility  

therefore that they had been attracted to the place of incident on account of  

noise and had not  come together  with  a pre-planned objective to  commit  

murder cannot be ruled out. It has been suggested by Mr. Chaudhary that  

Akaloo Ahir and Brij Mohan Ahir had come out from the same heap of straw  

which showed a pre- planned attack and a prior meeting of minds.  

We, however, see from the evidence of PW.5 Rama Shankar Yadav an  

eye witness, that there were two different heaps of straw near the place and  

the two accused had come out from behind different heaps. In any way there  

is no evidence to suggest that there was any prior meeting of minds. We are,  

therefore,  of  the  opinion  that  the  conviction  of  the  appellant  under  Sec.  

302/34 of the IPC is not called for. In the light of the fact that the appellant  

had fired a shot which missed it target his conviction under Sec. 307 has,  

therefore,  to  be maintained.  The sentence  is,  however,  reduced from ten  

years to five years.  

With this modification the appeal is dismissed.