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CASE NO.: Appeal (crl.)  199 of 2000

PETITIONER: Rajan Rai                                                        

RESPONDENT: State of Bihar                                           

DATE OF JUDGMENT: 10/11/2005

BENCH: B.N.AGRAWAL & A.K.MATHUR

JUDGMENT: J U D G M E N T

B.N. AGRAWAL,J.

       The sole appellant was convicted by the trial court under Section 302  read with Section 34 of the Indian Penal Code [‘IPC’ for short] and sentenced  to undergo imprisonment for life.   He was further convicted under Sections 3  & 5 of the Explosive Substances Act, 1908 [hereinafter referred to as ‘the  Act’] and sentenced to undergo rigorous imprisonment for a period of 10 years  on each count.  The sentences were, however, ordered to run concurrently.    On appeal being preferred, High Court upheld the conviction.  Hence this  appeal by special leave.         Prosecution case, in short, was that on 10.6.1983 at about 7.45 p.m.  when Joginder Singh [PW 9) came back to his house, he found his brother \026  Bhola Singh sitting at the outer verandah of the house chatting with one  Shobha Rai [DW 3].   At about 8.10 p.m. Joginder Singh heard sound of  explosion and found that a bomb was thrown upon his brother \026 Bhola Singh.   Thereafter he saw the appellant \026 Rajan Rai, accused Kameshwar Rai,  Tileshwar Rai [since deceased], Sipahi Rai, Bankim Rai and Dasrath Rai  having bags in their hands and throwing bombs on his brother as a result of  which he fell down and succumbed to the injuries.  PW 9 caught the appellant  from his waist whereupon accused Kameshwar Rai threw a bomb upon him.   Ram Ayodhya Rai [DW 1] Ram Gobind Sau [DW.2]  and DW 3  also  sustained splinter injuries on their hands and legs during the course of the  occurrence.  The occurrence was also witnessed by some other persons who  were present there.   Thereafter, the accused persons fled away.   Motive for  the occurrence disclosed is old grudge and animosity.  The Parsa Police  Station was at a distance of 1/4th kilometer from the place of occurrence, as  such Baban Prasad Singh, Sub-Inspector of Police, [PW 17], who was in- charge of the said Police Station on that day, upon hearing sound of bomb  explosion along with other police officials came to the place of occurrence and  recorded fard-beyan  of PW 9 at 8.25 p.m. in which the aforenoted facts were  stated on the basis of which formal First Information Report [FIR] was  registered at 9.30 p.m. on the same day in which names of all the six accused  persons, including the appellant, were disclosed.          Police after registering the case took up investigation and on  completion thereof submitted chargesheet against all the six accused on  receipt whereof cognizance was taken and all of them were committed to the  Court of Sessions to face trial.   As the appellant \026 Rajan Rai was absconding,  his trial was separated from that of other five accused persons, out of whom  Tileshwar Rai died before the commencement of trial, as such, the trial  proceeded against the remaining four accused persons and the same was  registered as Sessions Trial Nos. 245 of 1983 and 20 of 1984.  Defence of the accused persons was that they were innocent,  no  occurrence much less the occurrence alleged had taken place and that they  had no complicity with the crime, but were falsely roped in to feed fat  the old  grudge.  In the aforesaid Sessions Trial Nos. 245/1983 and 20/1984, which  proceeded against the aforesaid four accused persons, as stated above, both

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the parties adduced evidence and upon conclusion thereof all the four  accused persons were convicted under Section 302 read with Section 34 IPC  and sentenced to undergo imprisonment for life.  They were further convicted  under Sections 3 and 5 of the Act and sentenced to undergo rigorous  imprisonment for 10 years on each count.  The sentences were, however,  ordered to run concurrently.  Against the said judgment, appeals were  preferred by the aforesaid four convicted accused persons.  During the  pendency of the appeals, the appellant could be apprehended and was put on  trial giving rise to Sessions Trial No. 181 of 1985, during the course of which  both the parties examined witnesses and upon conclusion of the trial, the trial  court convicted the appellant, as stated above, against which judgment also  an appeal was preferred before the High Court.   The appeals preferred by the four convicted accused persons  challenging their conviction recorded in Sessions Trial No. 245/1983 and  20/1984 were decided by the High Court on 4th October, 1996 and the same  were allowed and their convictions and sentences set aside, which attained  finality as the matter was not  carried further to this Court.   The appeal filed  by the appellant was taken up later on and by the impugned judgment, the  High Court upheld his convictions and sentences.   Hence this appeal by  special leave.  Shri P.S. Mishra, learned Senior Counsel appearing in support of the  appeal, attacked the impugned judgment on three counts.  Firstly, it has been  submitted that as in the appeal arising out of the earlier trial, the High Court  acquitted other four accused persons on merit, it was not permissible for it to  uphold conviction of the appellant on the basis of   evidence of the same  witnesses  examined during the course of trial of the appellant.   Secondly, in  the facts and circumstances of the present case, the High Court was not  justified in upholding the convictions of the appellant as the evidence of the  four eyewitnesses, namely, PWs 2,3,5 and 9 could not have been relied upon,  especially in view of the fact that their names were not disclosed in the FIR  and the three eyewitnesses, namely, DWs 1, 2 and 3, who were injured  witnesses named in the FIR, did not support the prosecution case so far as  complicity of the appellant with the crime was concerned.  Lastly, it has been  submitted that there being only six accused persons out of whom four  acquitted and prosecution of one \026 Tileshwar Rai dropped, he having died  before the commencement of trial, the conviction of the appellant under  Section 302 read with Section 34 IPC was not justified as he could not have  shared the common intention either with the four acquitted accused persons  or even with Tileshwar Rai, whose prosecution was dropped.   On the other  hand, Shri B.B. Singh, learned counsel appearing on behalf of the State of  Bihar, submitted that judgment of acquittal rendered by the High Court in  appeals arising out of convictions of other four accused persons in their trial  was inadmissible and irrelevant in the present trial.   Further, the evidence of  PWs 2,3,5 and 9 has been rightly relied upon by the trial court as well as the  High Court.   Lastly, learned counsel submitted that conviction of the appellant  under Section 302 read with Section 34 IPC was warranted in law as the  appellant could have shared the common intention with accused Tileshwar  Rai, who died before the commencement of trial and his prosecution was  simply dropped by virtue of his death which cannot be equated with the case  of acquittal.   Coming to the first submission very strenuously canvassed by Shri  Mishra, it would be necessary to refer to the provisions of Sections 40 to 44 of  the Indian Evidence Act, 1872 [in short ‘the Evidence Act’] which are under  the heading ‘Judgments of Courts of justice when relevant’, and in the  aforesaid Sections the circumstances under which previous judgments are  relevant in civil and criminal cases have been enumerated.  Section 40 states  the circumstances in which a previous judgment may be relevant to bar a  second suit or trial and has no application to the present case for the obvious  reasons that no judgment order or decree is said to be in existence in this  case which could in law be said to prevent the Sessions Court from holding  the trial. Section 41 deals with the relevancy of certain judgments in probate,  matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable.  Section 42 refers to the relevancy and effect of judgments, orders or decrees  other than those mentioned in Section 41 in so far as they relate to matters of  a public nature, and is again inapplicable to the present case. Then comes

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Section 43 which clearly lays down that judgments, order or decrees, other  than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the  existence of such judgment, order or decree is a fact in issue, or is relevant  under some other provisions of the Evidence Act. As it has not been shown  that the judgment of acquittal rendered by the High Court in appeals arising  out of earlier sessions trial could be said to be relevant under the other  provisions of the Evidence Act, it was clearly "irrelevant" and could not have  been taken into consideration by the High Court while passing the impugned  judgment. The remaining Section 44 deals with fraud or collusion in obtaining  a judgment, or incompetency of a court which delivered it, and can possibly  have no application in the present case. It would thus appear that the High  Court was quite justified in ignoring the judgment of acquittal rendered by it  which was clearly irrelevant.   This question had arisen before the Privy Council in the case of Hui  Chi \026 ming v. R, [1991]  3, All E.R. 897, wherein the Court was dealing with  a case of murder trial.  In the said case, principal offender was acquitted of  murder, but convicted of manslaughter at a trial before the High Court of Hong  Kong.  The said order attained finality.  Thereafter, another accused, who was  facing trial arising out of the same very occurrence and whose trial was  separated, was convicted for the charge of murder by the same High Court,  ignoring the judgment of acquittal of the principal accused of the charge of  murder, holding that the same was inadmissible.   The application for leave to  appeal against the conviction of the accused having been dismissed by the  Court of Appeal of Hong Kong, the accused appealed by special leave to the  Privy Council.  In that case, conviction for the charge of murder was upheld by  the Judicial Committee holding that evidence of the outcome of an earlier trial  arising out of the same transaction was irrelevant and therefore inadmissible  since the verdict reached by a different jury, whether on the same or different  evidence, in the earlier trial amounted to no more than evidence of the opinion  of that jury.  Further, it was laid down that a person could properly be  convicted of aiding and abetting an offence even though the principal offender  had been acquitted and accordingly, the trial judge had rightly excluded  evidence of the principal offender’s acquittal of murder.  A three Judges’ Bench of this Court had occasion to consider the  same very question in the case of Karan Singh vs. The State of Madhya  Pradesh, AIR 1965 SC 1037, in which there were in all 8 accused persons  out of whom accused Ram Hans absconded, as such trial of seven accused  persons, including accused Karan Singh, who was appellant before this Court,  proceeded and the trial court although acquitted other six accused persons,  convicted the seventh accused, i.e., Karan Singh under Section 302 read with  Section 149 IPC.  Against his conviction, Karan Singh preferred an appeal  before the High Court.  During the pendency of his appeal, accused Ram  Hans was apprehended and put on trial and upon its conclusion, the trial court  recorded order of his acquittal, which attained finality, no appeal having been  preferred against the same.    Thereafter, when the appeal of accused Karan  Singh was taken up for hearing, it was submitted that in view of the judgment  of acquittal rendered in the trial of accused Ram Hans, the conviction of  accused Karan Singh under Section 302 read with Section 149 IPC could not  be sustained, more so when other six accused persons, who were tried with  Karan Singh, were acquitted by the trial court and the judgment of acquittal  attained finality.   Repelling the contention, the High Court after considering  the evidence adduced came to the conclusion that murder was committed by  Ram Hans in furtherance of the common intention of both himself and  accused Karan Singh and, accordingly, altered the conviction of Karan Singh  from   Section 302/149 to one under Section 302/34 IPC.   Against the said  judgment, when an appeal by special leave was preferred before this Court, it  was contended that in view of the verdict of acquittal of accused Ram Hans, it  was not permissible in law for the High Court to uphold conviction of accused  Karan Singh.   This Court, repelling the contention, held that decision in each  case had to turn on the evidence led in it.  Case of accused Ram Hans  depended upon evidence led there while the case of accused Karan Singh,  who had appealed before this Court, had to be decided only on the basis of  evidence led during the course of his trial and the evidence led in the case of  Ram Hans and the decision there arrived at would be wholly irrelevant in  considering merits of the case of Karan Singh, who was appellant before this

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Court.  This Court observed at page 1038 thus:-  " As the High Court pointed out, that observation has no  application to the present case as here the acquittal of  Ramhans was not in any proceeding to which the appellant  was a party. Clearly, the decision in each case has to turn  on the evidence led in it; Ramhans’s case depended on the  evidence led there while the appellant’s case had to be  decided only on the evidence led in it. The evidence led in  Ramhans’s case and the decision there arrived at on that  evidence would be wholly irrelevant in considering the merits  of the appellant’s case." In that case, after laying down the law, the Court further considered as to  whether the High Court was justified in converting the conviction of accused  Karan Singh from  Section 302/149 to one under Section 302 read with section  34 IPC after recording a finding that the murder was committed by Ram Hans  in furtherance of common intention of both himself and accused Karan Singh.   This Court was of the view that in spite of the fact that accused Ram Hans was  acquitted by the trial court and his acquittal attained finality, it was open to the  High Court, as an appellate court, while considering appeal of accused Karan  Singh, to consider evidence recorded in the trial of Karan Singh only for a  limited purpose to find out as to whether Karan Singh could have shared  common intention with accused Ram Hans to commit murder of the deceased,  though the same could not have otherwise affected the acquittal of Ram Hans.     In view of the foregoing discussion, we are clearly of the view that the  judgment of acquittal rendered in the trial of other four accused persons is  wholly irrelevant in the appeal arising out of trial of appellant \026 Rajan Rai as  the said judgment was not admissible under the provisions of Sections 40 to  44 of the Evidence Act.   Every case has to be decided on the evidence  adduced therein.   Case of the four acquitted accused persons was decided on  the basis of evidence   led there while case of the present appellant has to be    decided only on the basis of evidence adduced during the course of his trial.            Now the question arises as to whether the trial court as well as the High  Court was justified in placing reliance upon the evidence of PWs 2,3,5 and 9.    PW 9 is the informant himself and, being brother of the deceased, most  competent person to have witnessed the occurrence that had taken place in  the outer verandah of the house.     PW 9  himself was injured in the said  occurrence and was examined by Dr. B.P. Tribedi [PW 12] who found four  injuries on his person caused by explosive substance, such as bomb.   The  Investigating Officer [PW 17] heard the sound of bomb explosion at the police  station which was at a distance of 1/4th kilometer  from the place of occurrence  and arrived there at 8.25 p.m. ,i.e., only after 15 minutes of the occurrence  which had taken place at 8.10 p.m. -  and recorded fard-beyan of  PW 9 on the  basis of which formal FIR was registered at the police station.  The informant -  PW 9 in his substantive evidence in the court has supported the prosecution  case disclosed by him in all material particulars.   In the FIR he disclosed  names of three witnesses specifically, who had received injuries, namely, DWs  1, 2 and 3.   Apart from these injured witnesses, it has been stated in the FIR  that there were other persons as well who had seen the occurrence.    Immediately after the  fard-beyan was recorded, the statements of  PWs 2, 3  and 5 were recorded by the police without any delay whatsoever.   In their  statements made before the police, they have  categorically supported the  prosecution case disclosed in the FIR.  They have also specifically stated that  all the accused persons threw bomb upon the deceased as a result of which  he received injuries and succumbed to the same.   PW 9 stated in his evidence  that the three injured witnesses, referred to above, were not ready to depose  out of fear of the accused persons.   Presence of three injured witnesses,  namely, DWs 1, 2 and 3 at the place of occurrence has been accepted by  them  and their injuries have been proved by the two doctors \026 PWs 15 and  16.    In their evidence, DWs 1, 2 and 3 have simply stated that the appellant  was not present at the place of occurrence.   It appears that these three injured  witnesses were not ready to depose on behalf of the prosecution out of fear of  the accused persons, as such, merely because they could not be examined by  the prosecution, the evidence of PWs 2, 3 and 5 cannot be discarded  especially when their statements were recorded by the police immediately after  recording of the fard-beyan.  As such, no adverse inference can be drawn

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against the prosecution for not examining the three injured witnesses.    The  evidence of PWs 2, 3 and 5 is consistent with the prosecution case disclosed  in the FIR as well as in the substantive evidence of the informant \026 PW 9.   In  our view, the trial court and the High Court were quite justified in placing  reliance upon their evidence.  In view of the facts stated above, we are of the  view that the prosecution has succeeded in proving its case beyond  reasonable doubt.   .         The last submission to be examined is whether the appellant could have  been convicted under Section 302 read with Section 34 IPC for sharing the  common intention with accused Tileshwar Rai for causing the death of the  deceased.    So far as accused Tileshwar Rai is concerned, he died before the  commencement of trial, as such his prosecution stood dropped which cannot,  in any manner, tantamount to acquittal.   Shri Mishra  submitted that the effect  of dropping the prosecution of Tileshwar Rai would tantamount to his acquittal  and  relied upon a decision of this Court rendered in the case of  Krishna  Govind Patil Vs. State of Maharashtra, 1964 (1) SCR 678,  to show that if all  other persons were acquitted, one person alone could not be convicted under  Section 302 read with section 34 IPC.    In the said decision, a four Judges’  Bench of this Court was considering a case in which there were in all four  accused persons and all of them were acquitted by the trial court of the charge  under Section 302 read with Section 34 IPC.  The High Court upheld acquittal  of the three accused persons, but convicted the fourth accused under Section  302 read with Section 34 IPC.  When the matter was brought to this Court, the  conviction was set aside as apart from these four accused persons, there was  no other fifth accused and in view of the acquittal of three accused persons,  the conviction of the appellant before this Court under Section 302 read with  section 34 IPC could not be maintained as there was none else with whom he  could have shared the common intention to cause death of the deceased.    While acquitting, this Court observed that neither it was the prosecution case  that there was any fifth accused person nor was there any evidence to that  effect, meaning thereby that if there could have been any other accused  person \026 known or unknown \026 other than the four persons tried, the conviction  of the appellant before this Court could have been upheld as it could have  been said that he  shared the common intention with the fifth unknown  accused  person to commit the offence.    To illustrate the point, if in a case  First Information Report is lodged against four persons, known as well as  unknown, and tried, out of whom three acquitted,  one person can be   convicted under Section 302 IPC simpliciter in case it is found that injury  inflicted by him was fatal one, but be cannot be convicted under Section 302  with the aid of Section 34 IPC as in view of acquittal of the other accused  persons, he cannot be said to have shared the common intention with  anybody.  On the other hand, if there are three persons, two named and one  unknown, whose  identity could not be ascertained even during the course of  investigation, and upon being put on trial, out of the two named one gets  acquitted,   the other can be convicted under Section 302  with the aid of  Section 34 IPC as it can be said that the convicted accused shared the  common intention with the unknown person if there is evidence to that effect.    In the present case, all the four eyewitnesses, namely, PWs 2,3,5 and 9, upon  whom reliance has been placed by the two courts below, have candidly and  consistently stated that the appellant and accused Tileshwar Rai along with  other accused persons came to the house of the deceased and threw bomb  upon him as a result of which he received injuries and succumbed to the  same.    We have already found that the evidence of these witnesses has been  rightly found to be reliable by the trial court as well as the High Court so far as  the appellant is concerned.  We do not find any reason whatsoever to discard  their evidence so far as participation of accused Tileshwar Rai in the crime is  concerned.   From the prosecution evidence it becomes clear that appellant  shared common intention with accused Tileshwar Rai to cause  death  of the  deceased.  Thus, we have no difficulty in holding that if accused Tileshwar Rai  would not have died,  on the basis of evidence adduced by the prosecution,  which is unimpeachable, he was liable to be convicted under Section 302 with  the aid of Section 34 IPC, but merely because he died before the  commencement of his trial and could not be tried, the appellant cannot take  any advantage therefrom.    For the foregoing reasons, we are of the view that  the High Court has not committed any error in upholding convictions of the

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sole appellant under Section 302 read with Section 34 IPC as well as Sections  3 and 5 of the Act.          In the result, the appeal fails and the same is dismissed.   Bail bonds of  the appellant, who is on bail, are cancelled and he is directed to be taken into  custody forthwith to serve out the remaining period of sentence for which a  compliance report must be sent to this Court within one month from the date of  receipt of copy of this order.