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PETITIONER: DUKHMOCHAN PANDEY & ORS., SHAMSUL MIAN & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       25/09/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 198 OF 1982 IN THE MATTER OF ;                       J U D G M E N T PATTANAIK. J.      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  Section  302/149  and  were  sentenced  to imprisonment for  life. Twenty  seven of the accused persons were convicted  under Section  147 but  no separate sentence was awarded.  Rest of  the accused  persons  were  convicted under Section 147 but no separate sentence was awarded. Rest of the  accused persons were convicted under Section 148 IPC but no  separate sentence  was awarded.  Accused  Dukhmochan pandey, Sarbnarain  Mishra, Upendra  Pandey, Sanjam  Pandey, Jainandan Mishra,  Kapileshwar Mandal,  Bhuvneshwar  Mandal, Janak Das,  Uttam Pandey, Tapeshwar Pandey, kameshwar Pandey and Jiwachh  Mishra were  convicted under Section 302/34 and were  sentenced  to  imprisonment  for  life.  Then  accused dukhmochan  Pandey,   Srabarnarain  Mishra,   Nawal  Kishore Pandey, Shiv Thakur, Jogendra Narain Pandey, Mahendra Narain Pandey,  Shiv  Shekhar  Pandey,  Saukhilal  Yadav,  Amirilal Yadav, Sukhram  Mishra, Jainandan  Mishra, Bamchandra pandey and Ramchandra  Sharma were  convicted under  Section 302/34 and were  sentenced to  undergo  rigorous  imprisonment  for life. In  other words  while all  the accused  persons  were convicted under Section 302/149, they were also convicted in two groups  under section  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  Section 324  and were  sentenced to undergo imprisonment for  2 years and accused Upendra Pandey, Sanjam pandey, kapileshwar Mandal, Jogeshwar Mandal, Aghanoo Mandal and Janak Das were 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 Section 302/149  passed by  the learned  Additional Sessions

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Judge  and   sentence  passed  thereunder  was  upheld.  The conviction of  different accused  persons under Sections 148 was upheld  and sentence  for three  years in respect of the same accused  persons was  awarded.. The  conviction  of  27 accused persons  was awarded.  The conviction  of 27 accused persons  under  Section  147  was  upheld  and  sentence  of imprisonment for  two years  was awarded  by the High Court. Similarly, the  conviction  of  the  accused  persons  under Section 447  as well  as  under  Sections  323  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  have  preferred Criminal Appeal  No. 197  of 1982 are those whose conviction under Section 147 has been upheld by the High Court.      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  and   asked  the   labourers  to   stop  their  work. Kapileshwar Pandey,  PW-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 PW-18 being terribly frigtened 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 attacks of different accused persons on the laborers  who were  on the field. While indiscriminating assault on the laborers was going on somebody cried out that Magistrate with the police has arrived . The accused persons hearing such  call ran  from the  place of occurrence. PW-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  PW-18’S  arrival  on  the field PWs the magistrate and the armed forces. The informant PW- 18 wrote a detailed account of the incident and gave the same to the magistrate, PW-25. It may be stated here that on account of 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.  PW-6, the  village  Chowkidar  being aware of  the tension  on the field reported the same to the Hawaldar PW-21 and PW-21 directed the chowkidar to inform at the police station. Pursuant to the aforesaid direction, PW- 6 at  arrived at  the police station at about 11.30 a.m. and gave a  report to  the officer  in-charge, PW--24 who made a station dirary  entry No.  458. The  said PW-24 after making the station diary entry left for the village and reached the place of occurance at 3 p.m. It is at that point of time the written report  given by  PW-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, PW-26  took over  the  investigation  from  him  and  said  PW-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

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in course  of the occurrence. PWs 7,9 and 10 are the seizure witnesses. PW-19  is  the  Deputy  Collector  who  had  been deputed to  watch post-mortem conducted on the deceased. PW- 32 is  the doctor who conducted the post-mortem examination. PW-22 established  the fact  that under  the  order  of  the supervising authority investigation was transferred from PW- 24 to  PW-26. PW-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 through 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 PW- 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   laborers   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.      Mr. U.R.  Lalit, the  learned senior  counsel appearing for the  appellants in  Criminal  Appeal  No.  197  of  1982 contended that  the  star  witness  of  the  prosecution  is Kapileshwar Pandey,  PW-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

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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 PW-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  laborers 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 attacks 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 can’t  be held  liable for the offence of murder.      The learned  counsel  of  the  appellants  in  Criminal Appeal No.  198 of  1982 also attacked the impugned judgment on all  the grounds  urged by  Mr. Lalit  appearing for  the appellants in  Criminals Appeal  No.  197  of  1982  and  in addition contended  that the  appellants in  Criminal Appeal No. 198  of 1982 have been found to be mere present with the mob, armed  with lathies  and have not committed any attack, consequently their  conviction under  Section  147  IPC  and sentence passed thereunder is not sustainable in law.      Mr.  Sinha,   the  learned   senior  counsel   for  the respondent on  the other  hand submitted  that there  are as many  as   12  witnesses  examined  on  the  behalf  of  the prosecution of  whom PWs  8,9,11,14 and  15 were  injured in course of  the incident  and when  two courts  of fact  have already scrutinized  the  evidence  and  have  come  to  the conclusion that  the prosecution case has been proved beyond reasonable doubt  it would not be appropriate for this Court to  re-appreciate   the  evidence   and  come   to  its  own conclusion. The  learned counsel  further contended  that no doubt it  is  true  that  initial  object  of  the  unlawful assembly was  to  desist  the  persons  on  the  field  from ploughing or  from undertaking  any agricultural  operation. But at  the spot  when PW-1  gave a  lalkar to finish up the Mukhiya and others. a common intention developed at the spur of the  moment. Consequently,  all those who participated in the overt  attack which  ultimately resulted in the death of two persons  Razaullah and  Ahmed Shah would be liable under Section 302/34  and the  High Court,  therefore,  was  fully justified in  convicting them thereunder and sentencing them to imprisonment  for life.  According to the learned counsel the fact  that a  common intention  developed at the spur of the moment  is established  from the evidence of PWs 1,2,8,9 and 14.  Commenting upon  the argument  of  Mr.  Lalit  that kapileshwar Pandey  being the main target it is difficult to

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believe that  kapileshwar pandey  Kept himself hidden in the nearby Janera  field and yet no accused person followed him, the  learned   counsel  for   the  State   urged  that  when kapileshwar pandey  found himself  to be  the main target of attack it  is but  natural for him to run away form the spot and hide  himself at  a place  available in the vicinity and accordingly Kapileshwar  Pandey  did  hide  himself  in  the nearby Janera field. Such conduct on the part of kapileshwar pandey did  hide himself  in the  nearby Janera  field. Such conduct on  the part  of kapileshwar  is only  most probable conduct of  Amman under the circumstances and the High Court was justified in believing the evidence of said Kapileshwar. So far  as the  argument advanced  on account  of  delay  in recording the  statements of  witnesses by the investigating officer the  learned counsel  urged that  the  materials  on record  fully   establish  that  the  initial  investigating officer was partial and was not conducting the investigation fairly on account of which the investigation was transferred from  him  to  some  other  man  under  the  orders  of  the supervising  authority  and  under  such  circumstances  the alleged delay  in recording  the statement  of the witnesses under Section  161 Cr.P.C  will not  vitiate the prosecution case. The  learned counsel  also urged  that  no  doubt  the accused persons  have been  acquitted of  the  charge  under Section 302/149  and no  appeal has been preferred therefrom but when a mob of 200 persons came armed with deadly weapons and several  members  of  the  mobs  started  attacking  the persons on  the field  the second  part of  Section 149 gets attracted,  and  therefore,  the  accused  persons  will  be convicted thereunder.  Since no  prejudice is  caused to the accused persons  and since  they are initially charged under section 302/149  it would be within the powers of this Court to convict them under Section 302/149 even in the absence of an appeal against the order of acquittal of the said  charge. The  rival contentions  require a  careful examination of the materials on record.      At the  outset it  must be  stated that ordinarily this Court under  Articles 136  of the  constitution does not re- appreciate the  evidence and  the conclusions  of  the  High Court on  a question  Mr. U.R.  Lalit,  the  learned  senior counsel appearing  for the appellants in Criminal Appeal No. 197  of   1982  contended  that  the  star  witness  of  the prosecution is kapileshwar Pandey, PW-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 PW-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.

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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 attacks 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  Lalit 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 can’t  be held  liable for the offence of murder.      The learned  counsel  of  the  appellants  in  Criminal Appeal No.  198 of  1982 also attacked the impugned judgment on all  the grounds  urged by  Mr. Lalit  appearing for  the appellants in  Criminals Appeal  No.  197  of  1982  and  in addition contended  that the  appellants in  Criminal Appeal No. 198  of 1982 have been found to be mere present with the mob, armed  with lathies  and have not committed any attack, consequently their  conviction under  Section  147  IPC  and sentence passed thereunder is not sustainable in law.      Mr.  Sinha,   the  learned   senior  counsel   for  the respondent on  the other  hand submitted  that there  are as many  as   12  witnesses  examined  on  the  behalf  of  the prosecution of  whom PWs  8,9,11,14 and  15 were  injured in course of  the incident  and when  two courts  of fact  have already scrutinized  the  evidence  and  have  come  to  the conclusion that  the prosecution case has been proved beyond reasonable doubt  it would not be appropriate for this Court to  re-appreciate   the  evidence   and  come   to  its  own conclusion. The  learned counsel  further contended  that no doubt it  is  true  that  initial  object  of  the  unlawful assembly was  to  desist  the  persons  on  the  field  from ploughing or  from undertaking  any agricultural  operation. But at  the spot  when PW-1  gave a  lalkar to finish up the Mukhiya and others. a common intention developed at the spur of the  moment. Consequently,  all those who participated in the overt  attack which  ultimately resulted in the death of two persons  razaullah and  Ahmed Shah would be liable under Section 302/34  and the  High Court,  therefore,  was  fully justified in  convicting them thereunder and sentencing them to imprisonment  for life.  According to the learned counsel the fact  that a  common intention  developed at the spur of the moment  is established  from the evidence of PWs 1,2,8,9 and 14.  Commenting upon  the argument  of  Mr.  Lalit  that kapileshwar Pandey  being the main target it is difficult to believe that  kapileshwar pandey  Kept himself hidden in the nearby Janera  field and yet no accused person followed him, the  learned   counsel  for   the  State   urged  that  when kapileshwar pandey  found himself  to be  the main target of attack it  is but  natural for him to run away form the spot and hide  himself at  a place  available in the vicinity and accordingly Kapileshwar  Pandey  did  hide  himself  in  the nearby Janera field. Such conduct on the part of kapileshwar

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pandey did  hide himself  in the  nearby Janera  field. Such conduct on  the part  of kapileshwar  is only  most  problem conduct of  Amman under the circumstances and the High Court was justified in believing the evidence of said Kapileshwar. So far  as the  argument advanced  on account  of  delay  in recording the  statements of  witnesses by the investigating officer the  learned counsel  urged that  the  materials  on record  fully   establish  that  the  initial  investigating officer was partial and was not conducting the investigation fairly on account of which the investigation was transferred from  him  to  some  other  man  under  the  orders  of  the supervising  authority  and  under  such  circumstances  the alleged delay  in recording  the statement  of the witnesses under Section  161 Cr.P.C  will not  vitiate the prosecution case. The  learned counsel  also urged  that  no  doubt  the accused persons  have been  acquitted of  the  charge  under Section 302/149  and no  appeal has been preferred therefrom but when a mob of 200 persons came armed with deadly weapons and several  members  of  the  mobs  started  attacking  the persons on  the field  the second  part of  Section 149 gets attracted,  and  therefore,  the  accused  persons  will  be convicted thereunder.  Since no  prejudice is  caused to the accused persons  and since  they are initially charged under section 302/149  it would be within the powers of this Court to convict them under Section 302/149 even in the absence of an appeal against the order of acquittal of the said  charge. The  rival contentions  require a  careful examination of the materials on record.      At the  outset it  must be  stated that ordinarily this Court under  Articles 136  of the  constitution does not re- appreciate the  evidence and  the conclusions  of  the  High Court on  a question  of fact or on appreciation of evidence are considered to be final. But at the same time there is no bar for  this court  to re-appreciate  the evidence  if  the interest of  justice so demands. In the case in hand as many as 47  people out  of a mob of 200 persons have been charged and ultimately  have been convicted under different sections of the  penal code  and the  conviction is  based  upon  the ocular statement.  In that  view of the matter we thought it appropriate to  examine the evidence ourselves for coming to a conclusion as to whether there has been any miscarriage of justice by  an apparent erroneous appropriate to examine the evidence ourselves  for coming to a conclusion as to whether there has  been any  miscarriage of  justice by  an apparent erroneous appreciation  of the  ocular  evidence.  From  the aforesaid stand  point the  evidence  in  the  case  may  be scrutinized. As  it appears,  PW-18 is  the stat  witness in this case.  Since it  is he  who could see the incident from the beginning  to the end after hiding himself in the nearby Janera field  and was the first person to arrive on the spot after the accused persons left the field when somebody cried that  the  Magistrate  is  coming  with  the  force.  PW-18, Kapileshwar was  Mukhiya  of  the  village  having  been  so elected on  5.7.1962. According  to his  evidence he went to the field  accompanied by  deceased Razaullah  at 11a.m.  on 25.07.1974 and  while the  labourers started  working on the field he sat on the southern corner of the field. At 12 noon a mob  of about  200 persons  armed with Gun, Bhala, Gadasa, Bow-arrow and  Lathi reached  the filed of whom he could see Dukhmochan Pandey  and  Sarbnarain  holding  guns  in  their hands; Soukhilal  Yadav,  Amirilal  Yadav,  Sukhram  Mishra, Jainandan,  Ram   Chander  Pandey,   Ram   Chandra   Sharma, Tapeshwar, Kameshwar  Pandey and  Jiwachch Mishra had Bhalas in their  hands; Mawal  Kishore Pandey, Manendra  Narian and Shiv Shekhar  Pandey had  Gandasa in their hands. Kalimuddin

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Mian, Suleman Mian, Shamsul Mian, Chandeshwar Thakur, Horila kapar and  Ram preeti  Mishra had  gone with arrows in their hands. He  could identify  all the accused persons who stood charged by  name and  he knew  their place  of residence. As soon as  the mob  reached the place Uttam Pandey and Upendra Pandey told  the  labourers  to  stop  the  work.  The  said witness, PW-18 and the labourers said that the work will not be stopped  and on this uttam Pandey and Upendra Pandey gave the order  to finish  all the persons belonging to the party of PW-18.  On such order of Uttam Pandey and Upendra pandey, Dukhmochan Pandey  and Sarbnarain fired their guns which hit Razaullah and  Ahmed Shah  and both of them fell down. PW-18 ran away  to the nearby Janera field and keeping himself out of the  sight of  the accused  persons he could see what was happening to  the labourers  engaged by him for carrying out the transplantation  operation. Saukhilal, Amirilal, Sukhram jainandan,  Ram   Chandra  Pandey  and  Ram  Chandra  Sharma assaulted Razaullah  with Bhala; Shivnarain Thakur and Nawal Kishore Thakur  assaulted razaullah with Gadasa on his neck; and Yogendra  Narain Pandey, Mahendra Narain Pandey and shiv Shekar assaulted Razaullah with Gandas. After Razaullah fell down Tapeshwar  Pandey,  Kameshwar  and  Jiwachch  assaulted Ahmed Shah  with Bhala Jugeshwar Mandal, Kapileshwar Mandal, Aghnu Mandal,  Janak Das,  Sanvam Pandey and Upendera Pandey assaulted him  with lathi.  Uttam Pandey  by sitting  on the person of  Ahmed with  Bhala. Kapileshwar  Mandal, Jugeshwar Mandal, Aghnu  Mandal, janak  Das, Sanyam Pandey and Upendra Pandey assaulted  Bibi Julekha  Khatoon and  SK. Hadia  with lathi. Kalimuddin  Mian, Suleman  Mian, Shamsul  Mian, Horil Kapar Chandeshwar  Thakur and  Rampreet Mishra were shooting arrows. Mr.  U.R.  Lalit  ,  the  learned    senior  counsel contented that this PW-18 admittedly being inimical with the acused persons his evidence requires a stricter scrutiny for being accepted. According to the learned counsel the Mukhiya was the  main target  and rest  of the  injured persons were merely labourers of Mukhiya who were busy in transplantation operation on  the field. Mukhiya could not have escaped from the clutches  of the  accused persons  who according  to the prosecution case  hid himself when a mob of 200 persons came and then  again said  Mukhiya could not have seen the entire occurrence in  a sitting  position. The learned counsel also urged that  even if  it is  assumed that  he could  see  the incident from  the Janmera field he could not have been able to narrate  the incident  in a  graphic manner  in which  he narrated. It  is in  this connection,  Mr. Lalit  also urged that the  High Court  itself on  consideration of the entire material has  come to a finding that this witness claimed to have written the FIR  at the spot itself. But a very look at the FIR  at the  spot itself  . But  a very  look at the FIR makes the  story impossible  and obviously therefore the FIR had not  been written  on the field. This finding, according to  the   learned  counsel,   lends  corroboration   to  the submission that  PW-18 has  not witnessed the occurrence and came to  the place  much later and handed over a written FIR to the  Magistrate which  was later  on given to the police. The counsel also urged that a reading of the evidence of PW- 18 would  indicate that  he was  neither on the field at the time of  occurrence nor has seen the occurrence but has been able to rope in the accused persons by giving their names in the written  FIR. We have carefully scrutinized the evidence of  PW   -18  and  considered  the  comments  of  Mr.  Lalit impeaching his  credibility but having examined the evidence of said  PW-18 we are not in a position to hold him to be an unreliable witness neither we are in a position to hold that Kapileshwar had  not seen  the  occurrence  and  has  merely

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included the  names of  the accused  persons in  the written FIR. No  doubt there has been certain embellishments and the High  Court,   therefore,  was  justified  in  coming  to  a conclusion that  the FIR  was not  written at  the place  of occurrence as stated by PW-18 . But on that basis the entire prosecution case  cannot be thrown out particularly when out of 12  witnesses examined on behalf of the prosecution 5 are the injured  witnesses PWs  8,9,11,14 and  15. These injured witnesses corroborate  the evidence  of PW-18 with regard to the manner  of assault,  the place off assault, weapons used by different  accused persons,  the persons, the persons who assaulted the  two  deceased  persons  the  arrival  of  the Magistrate soon  after the  occurrence, the  arrival of  the investigating officer  at the  field, handing over of FIR by kapileshwar to  the magistrate.  The general  comment of Mr. Lalit in  respect of  these injured  witnesses is  that they repeated in a parrot like manner as to what have been stated by kapileshwar,  PW-18.  We  are  unable  to  discard  their testimony on  this  ground  particularly  when  the  learned Sessions Judge  as well  as the  High court  after  thorough scrutiny of  their evidence  have held  them to  be reliable corroborating the  evidence of  star witness  PW-18.  In our considered opinion,  therefore,  the  prosecution  story  as unfolded through  the evidence  of PWs  8,9,11,14,15 and  18 cannot be  doubted. Mr.  Lalit in  course of his argument no doubt had  contended that the witnesses were examined by the police under  Section 161  Cr.P.C. after  5 or 6 days of the incident and  no satisfactory  explanation for  the delay in recording their  statement  has  been  put  forward  by  the prosecution. Though  delayed examination of witnesses by the investigating agency  in certain  cases my create a doubt in the mind  of a  court for  accepting the  testimony  of  the witnesses, but  in the  case in hand it is apparent that the initialinvestigating officer  has not  been fair  enough  in investigating into  the offence  as a  result of which under the orders  of the  supervising officer the ivestigation was transferred to  another officer  who after  taking charge of the investigation recorded the statement of these witnesses. Such explanation  for delay  in recording  the statement  of vital witnesses has been held to be a sufficient explanation and we  do not find any justifiable ground to interfere with that conclusion.  In  this  view  of  the  matter  the  next question  that   arises  for  consideration  is  whether  in accordance with  the  prosecution  case  itself  the  common object of  the  mob  being  to  desist  the  labourers  from carriving on  the transplantation operation on the field and not to  commit murder of any member of the prosecution party particularly the  deceased Razaullah  and Ahmed Shah and the charge under  Section  302/149  having  failed,  can  it  be concluded that  some of  accused persons  developed a common intention at  the spot  to kill  two deceased persons and in furtherance of  the  said  common  intention  they  went  on assaulting the  deceased persons who ultimately succumbed to the injuries  they sustained.  From the prosecution evidence there cannot be in dispute and in fact the courts below have come to  the finding  that a  mob of  200 persons came armed with  different   weapons  with  object  of  preventing  the prosecution  party  for,  carrying  on  the  transplantation operation on  the field. The existence of a common intention between the  participants in a crime is an essential element for attracting  Section 34 of the Indian Penal Code and such intention could  be formed  previously or on the spot during the progress of the crime. Usually it implies a pre-arranged plan which in turn pre-supposes a prior meeting of mind. But in a given case such common intention which developed at the

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spur of  the moment  is different  from a  similar intention actuated  a   number  of  persons  at  the  same  time,  and therefore, the  said distinction must be borne in mind which would be  relevant in  deciding whether  Section 34  of  the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. (See kripal and others  vs. State of Uttar Pradesh. A.I.R. 1954 S.C. 706 Pandurang, Tukia  and Bhillia  vs. The  State of  Hyderabad, 1955(1) S.C.R.  1083 and  Mohan Singh  vs. State  of Punjab, 1962 supp(3)  S.C.R. 848) . The distinction between a common intention and  a similar  intention  may  be  fine,  but  is nonetheless a  real one  and  if  overlooked,  may  lead  to miscarriage of  justice. In  the case  of Hardev  Singh  and another vs.  The State  of Punjab, (1975) 3 S.C.C. 731., the original target  of attack  was one Kewal Singh who received only some  simple injuries  having been  caused  to  him  by accused Harijinder  Singh and  Piara Singh. But in course of the incident  accused Hardev Singh gave a kirpan blow on the head of  Tej kaur  and question of consideration was whether all the  accused persons  can be held guilty for the offence of murder of said Tej Kaur with the aid of Section 34 of the Indian Penal  Code. This  Court held that the assault on Tej Kaur by  accused Hardev  Singh was  his individual  act  and consequently other  accused persons cannot be held guilty of the offence  under Section 302/34 for the murder of said Tej Kaur. The  question, whether  all the  persons who made some overt attack  as a  result of  which  some  members  of  the prosecution party  died shared  the common  intention of the murder of  such persons  would be  question fact  and it  is difficult to  give any  direct proof  of existence  of  such common   intention   and   can   only   be   inferred   from circumstances. in  other words, unless such common intention is established  as a  matter of necessary inference from the proved circumstances  of the  case then  the accused persons could be  individually liable  for  their  respective  overt attacks and  not for  the act  done by any other person. The mere fact  that the  accused persons  were armed  with  some weapons itself  would not  be sufficient to attribute common intention of  all of them to commit murder particularly when in the  case in hand the prosecution case itself is that the accused persons  came to  the field  with the sole object of desisting   the   labourers   from   continuing   with   the transplantation operation. Mr. Sinha, learned senior counsel appearing for  the respondent had urged that every person is presumed to know the natural consequences of his own act and therefore pursuance  to the  call being  given to  kill  the persons of  Mukhiya whereafter the accused appellants having assaulted the two deceased persons with different weapons in their hands,  it must  be held  that they  had developed the common intention  of murdering  Ahmed Shah and Razaullah and as such  their conviction  under Section 302/34 is us wholly justified. As  has been stated earlier whether all those who are said to have been armed with some weapons and alleged to have assaulted  the deceased, shared the common intention of murdering deceased  has to  be found  out from the facts and circumstances established  and found.  In  other  words,  it would be  necessary to  examine as to the weapon of assault, on the part of the body on which such assault was committed, the medical evidence indicating the nature of injuries caused thereby  and the  ultimate cause  of death of the two persons.      It may  be stated that for causing murder of Ahmed Shah accused Dukhmochan  Pandey, Uttam  Pandey, Kameshwar Pandey, Jibachh  Mishra,   Sarabnarain  Mishra,  Jakan  Das,  Sanjam Pandey, Upendra  Narain Pandey,  Tapeshwar Pandey, Jainandan

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Mishra,  Jugeshwar  Mandal,  Kapileshwar  Mandal  have  been convicted under  Section 302/34.  Witnesses have established that Dukhmochan  Pandey was  holding a gun, Uttam Pandey was holding a Lathi, Kaeshwar Pandey was holding Bhala, Jibaccha Mishra was holding a Bhala, Sarabnarian Mishra was holding a Gun, Jakan  Das was  holding Lathi,  Sanjam Pandey holding a Lathi, Upendra  Narain Pandey was holding a Lathi, Tapeshwar Pandey was  holding a  Bhala, Jainandan Mishra was holding a Bhala, Jugeshwar  Mandal was  holding Lathi  and Kapileshwar Mandal was  holding   a Lathi. The Doctor, who conducted the post-mortem examination  on the dead body of Ahmed Shah, PW- 32 found the following injuries on him:      "On the  same date at 4 p.m. I held P.M. examination on the body of ahmed Shah S/o. Hakim Shah of the same and found as follows:      1. Perforating  injury 3/4"  x 1/2"      chest cavity  almost transverse  in      the second  right intercostal space      anteriorly.      2. Performating  injury  2"x1/2"  x      chest cavity  almost transverse  in      the  foweth   right   intercosteral      space anteriorly.      3.  Lacerated   injury  1/4"   long      across the right lip.      4. Both the incisors and one canine      teeth in I got lower jaw broken.      5. Two  teeth on upper left jaw and      four  teeth   on  right  upper  jaw      broken.(Two  incisors,  one  canine      and one premolar).      6. One  abrasion  1/2"  x  1/2"  on      right shoulder.      7. One  abrasion 1"x  1/2" on chest      right side, upper part.      8. One  abrasion 1"x1/4"  on mid of      back right side.      9. Second  and fourth ribs were cut      anteriorly. They  were spounder  to      injuries Nos.  1 and 2. Intercostal      muscles  abo   cut.  Pheera  cut  2      inches long  at place on right side      anteriorly. There  was a cut in the      upper  lobe   of  the  right  lung,      anteriorly  .....3"x  1"x  1".  The      middle lobe  had abodone  cut  3/4"      x1" anteriorly.  Chest  cavity  was      full  of  blood  and  blood  cloth,      almost  faint.   Both  chambers  of      heart were empty."      According to  the doctor  injuries Nos.  1 and  2  were vital caused  by some  sharp pointed weapon and death is due to shock,  haemorrhage and  injuries to  vital. organs. From the nature  of injuries  sustained by  the deceased  it  can reasonably be said that the two fatal injuries. Nos. 1 and 2 could be the result of attack by Bhala. The lacerated injury across the  right lip  breaking of both the incisors and one canine teeth  in right  jaw, breaking  of two teeth on upper left jaw  and four  teeth on right upper jaw, abrasion found on right  shoulder, abrasion  found on  right side chest and abrasion found on the mid of back right side could be caused by Lathi,  From the nature of the injuries found on the dead body of deceased Ahmed Shah and the nature of the weapons of assault used by accused holding lathies namely accused uttam Pandey, Janak  Das, Saniam  Pandey, Upendra  Narain  Pandey,

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Janak Das,  Saniam Pandey,  Upendra Narain Pandey, Jogeshwar Mandal and  Kapileshwar Mandal.  and the part of the body of Ahmed Shah  on which  they assaulted, it may not be possible to hold  that they shared common intention of causing murder of Ahmed  Shah. For  an inference  of common intention being drawn for  the purposes  of Section 34, the evidence and the circumstances of the case should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place  amongst different accused and in prosecution of it the  overt acts of the accused persons flowed out. As has been stated  earlier the  prosecution case  itself is,  they came  to   prevent  the   labourers  from   continuing   the transplantation operation  but at  the spur of the moment on account of  certain lalkara  being  given  by  some  of  the accused  persons.   Persons  armed   with  weapons   started assaulting the  deceased. But  from mere assault even not on vital parts of the body which ultimately resulted in causing some minor  injuries, it  may not be sufficient to establish beyond reasonable  doubt that  they  also  shared  a  common intention of  causing murder of deceased Ahmed Shah. In this view of  the matter,  the  conviction  of  appellants  Uttam Pandey, Janak  Das, Sanjam  Pandey, Upendra  Narain  Pandey, Jaogeshwar  Mandal  and  Kapileshwar  Mandal  under  Section 302/34 IPC  for causing murder of deceased Ahmed Shah cannot be sustained  and the  same is  set aside.  instead they are convicted under  Section 325/34  IPC. Sentenced  to  undergo rigorous imprisonment  for five  years. It  is no doubt true that there is no gun shot injury on him but it is Dukhmochan Pandey and  Sarbnarain Mishra  who on being ordered by Uttam Pandey fired  the guns  in their hands first, whereafter all others assaulted with the respective weapons in their hands. That being  the being  the position,  Dukhmochan Pandey  and Sarbnarain Mishra  also could  be held  liable under Section 302/34 and have been rightly convicted by the courts below. For causing  death of  Razaullah the  following  12  accused persons have been convicted under Section 302/34 IPC:      1. Dukhmochan Pandey A-1      2. Shiv Narain Thakur A-3      3. Shivshekhar Pandey A-6      4. Sarabnarain Mishra A-8      5. Sukhram Mishra    A-10      6. Saukhilal Yadav A-15      7. Naval Kishore Pandey A-17      8. Jogendra Narain Pandey A-18      9. Mahendra Narain Pandey  A-21      10. Ramchandra Pandey A-25      11. Jainandan Mishra A-35      12. Amiri Lal Yadav  A-46"      Of these  accused persons Dukhmochan Pandey was holding a Gun,  Shiv Narain Thakur was holding a Garasa, Shivshekhar Pandey was  holding a Garasa, Sarabnarain Mishra was holding a Gun,  Sukhram Mishra  was holding a Bhala, Saukhilal Yadav was holding  a Bhala,  Saukhilal yadav  was holding a Bhala, Naval Kishore  pandey was  holding a garasa, Jogendra Narain Pandey was  holding a  Garasa. Mahendra  Narain  Pandey  was holding a  Garasa. Mahendra  Narain  Pandey  was  holding  a Garasa. Ramchandra  pandey was  holding a  Bhala,  Jainandan mishra  was  holding  a  Bhala.  Doctor,  PW-32,  found  the following injuries on the dead body of Razaullah:      "1. Incised  injury  8"x1/2",  some      what elliptical  in shape  on lower      part of  back of  head, just on the      lower part of the accipebal bone.      2. Punctured  injury 3/4"  x 1/4" x      4/4" and 1" below the lobule of the

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    left ear.      3. Perforating  injury antori .....      third     left     inter     costal      space.....................      downwards medially.      4. Perforating injury 1/2" x 1/4" x      abdominal cavity on men, left side,      upper part.      5. Perforating injury 1/2" x 1/4" x      abdominal cavity  on abdomen,  left      side, front aspect.      6.  Oblique  punctured  injury  2"x      1/4" x 1" on right arm anteriorly.      7. abrasion 1/2" x 1/2’ below right      eye.      8. Incised  4" x  1/2" x  boale  on      left knee.      9. Compound  fracture of  tibia and      fibula, lower third, left leg.      10. Almost  round hole  1/2" x 1/4"      approximately x bone with lacerated      markings   on    left   leg   lower      part(would of entrance).      11. Lacerated  injury 1"  x 1/2" on      the left foot medial malicoli wound      of exit.      Probe was  made  to  enter  through      injury No. 11,      if came  out through injury No. 11.      Lower part of fibia and fibula were      found  cross  bed  on  opening  the      injured part.  Injury  No.  10  was      situated anteriorly  on  the  lower      part of the left leg.      12. Lacerated injury 1/2" x 1/2" 1"      on right leg, lower part, medially.      13. Punctured  injury 1/2"  x 1/8 x      1/4"     on   right   ankle   joint      anteriorly.      14. Punctured  injury 3/4" x 1/4" x      bone on right foot anteriorly.      15. Punctured injury 3/4" x 1/6" on      sole of the left foot.      Third Ribon left side was found cut      anteriorly. intercostal  muscles of      the third  left space was also.....      dimension  as   per  injury  No.  3      Pleura also  cut for  2" in  length      anteriorly. Chest  clot  blood  and      blood clot,  approximately a  pland      of the left lung cut 3" x 1/2" x 1"      anteriorly.  Heart,  chambers  were      empty,  each,  situated  anteriorly      and another  laterally. Stomach was      performed in  not tolateral surface      along the  greater  curvature  size      1/6’ x  1/6’ x stomach cavity. Some      gruel was  found inside the stomach      and a  little out  of the  stomach.      Spleen was  also  punctured,  about      1/6"  in   diameter  on  the  front      aspect depth  being 1/4". Abdominal      cavity had  also little  ceslection      of blood and blood clotal."      All these injuries according to doctor were ante-mortem

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in nature  and injuries  No. 1,3,4  and 5  were  fatal.  The doctor also  stated that  injuries Nos.  1 and  8  could  be caused by sharp cutting weapon. Injuries No. 9 and 10 and 11 were caused  by gunshot.  injuries No.  2,3,4,5,6,,12,,13,14 and 15 caused by some sharp pointed weapon and death was due to shock, haemorrhage and injuries on the vital organs. In a case of  murder where  it  is  established  by  satisfactory evidence that  all the  accused were  acting in  concert and were associated  with each  other  in  causing  assault  and multiple injuries  were found  on the  deceased it leaves no room for  doubt that  all the  accused had  shared a  common intention to  cause death  (see Aher Pitha Vaishi and others vs. State  of Gujarat,  AIR 1983  SC 599).  In view  of  the nature of  injuries found  on  the  dead  body  of  deceased Razaullah and  the weapons  of assault  in the  hands of the acccused, it would be difficult to hold that all of them had not shared  the common  intention of  killing the  Razaullah which developed  at the  spur of the moment on being ordered by Uttam  Pandey. In fact with deadly weapons in their hands they mercilessly  assaulted deceased  Razaullah and  as such their conviction under Section 302/34 is fully justified.      So far  as Criminal Appeal No. 198 of 1982 is concerned the appellants have been convicted under Section 147 IPC and in view of number of eye-witnesses to the occurrence many of whom are  injured witnesses  and those witnesses having been believed by  the learned  Sessions Judge  as well  as by the High Court  and while discussing their evidence in the other appeal we  have also  believed their  testimony, we  see  no infirmity in  conviction and  sentence  passed  against  the appellants in this appeal, and therefore, the said appeal is dismissed.      In  the   net  result,  therefore,  the  conviction  of appellants Uttam  Pandey, Janak  Das, Sanjam Pandey, Upendra Narain Pandey, Jogeshwar Mandal and Kapileshwar Mandal under Section 302/34  IPC for causing murder of Ahmed Shah and the sentence passed  thereunder is  set aside,  instead they are convicted under  Section 325/34  and they  are sentenced  to undergo rigorous imprisonment for five years. The conviction of other accused persons namely Dukhmochan Pandey, Kameshwar Pandey, Jibacch Mishra, Sarabnarain Mishra, Tapeshwar Pandey and Jainandan  Mishra under  Section 302/34  IPC for causing murder of  Ahmed Shah and the  sentence passed thereunder is affirmed. The  conviction of  all the  12  accused  persons, namely, Dukhmochan  Pandey, Shiv  Narain Thakur, Shivshekhar Pandey, Sarabnarain Mishra, Sukhram Mishra, Saukhilal Yadav, naval Kishore  Pandey,  Jogendera  Narain  Pandey,  Mahendra Narain Pandey, Ramchandra Pandey, Jainandan Mishra and Amiri Lal yadav  under Section  302/34 for  causing murder  of Sk. Razaullah and  sentence passed thereunder is affirmed. Their conviction and  sentence on  other counts  remain unaltered. Criminal Appeal  No. 197  of 1982  is partly  allowed to the extent indicated  above. The  conviction and sentence of the appellants in  Criminal Appeal  No. 198 of 1982 is affirmed. Criminal Appeal No. 198 of 1982 dismissed.      The accused  - appellants  who are on bail are directed to surrender  to serve the balance period of sentence and in case they  fail to  surrender steps  may be  taken for their arrest to serve the sentence.