Sahbuddin @ Sahabudia vs State Of Bihar
2021 Latest Caselaw 5346 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.5 of 1995
======================================================

SAHBUDDIN @ SAHABUDIA , son of late Asaru, resident of village Lehgaria, P.S. Barsoi, district Katihar ... Appellant Versus STATE OF BIHAR ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Navin Kumar, Amicus Curiae For the Respondent : Mr. Dr. Mayanand Jha, Sr. APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR)

Date : 25.11.2021

By this appeal, appellant/accused Sahbuddin @

Sahabudia has challenged the judgment and order dated

05.12.1994 passed by the learned Single Judge, Katihar, in S. Tr.

No. 55 of 1991 thereby convicting the appellant/accused of the

offence punishable under Sections 302 read with Section 34 of the

Indian Penal Code for committing murder of Mahendra Yadav and

sentencing him to suffer imprisonment for life. For sake

conveyance the appellant shall be referred to an accused.

2. Facts in brief leading to the prosecution of the accused

as fathered from the police report can be summarized thus :

(a) It is case of the prosecution that in past absconding

accused Mahendra Ravidas had outraged the modesty of

wife of Mahendra Yadav (since deceased). Therefore,

Mahendra Yadav had scolded Mahendra Ravidas.

(b) On 10.08.1990 Mahendra Yadav (since deceased)

was going by walking to Railway Station, Barsoi along Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

with his father-in-law P.W. 2 Pannu Yadav. This journey

was for reaching Pannu Yadav to that Railway Station,

in order to enable Pannu Yadav to go to his house. P.W.

2 Pannu Yadav had been to the house of his son-in-law

Mahendra Yadav (since deceased) and stayed there for

about two days. In this return journey of Mahendra

Yadav (since deceased) along with P.W. 2 Pannu Yadav

to Barsoi Railway Station, in the after-noon and about

01.30 to 2.00 p.m. of 10.08.1990 the accused along with

absconding accused Mahendra Ravidas had committed

murder of Mahendra Yadav by stabbing a knife on his

abdomen. Role attributed to the present accused is that

of catching hold of deceased Mahendra Yadav from

behind in order to facilitate accused Mahendra Ravidas

in giving of blow of knife on abdomen of Mahendra

Yadav. This incident of murderous assault on Mahendra

Yadav was witnessed even by P.W. 1 Ram Lal Yadav

who was returning from Railway Station to his house in

the after-noon of 10.08.1990.

(c) It is case of the prosecution that P.W. 4 Mewalal Roy

and P.W. 5 Tepu Roy @ Sagar Roy had also witnessed

the fact that absconding accused Mahendra Ravidas

accompanied by present accused Sahuddin @ Sahabudia Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

were following deceased Mahendra Yadav and his

father-in-law Pannu Lal Yadav when they both were

proceeding towards Barsoi Railway Station.

(d) After the incident, P.W. 1 Ram Lal Yadav who

witnessed the incident rushed to other relatives of

deceased Mahendra Yadav and disclosed the incident of

murder of Mahendra Yadav to them. P.W. 7 Jagdish

Yadav who happens to be the brother of Mahendra

Yadav then lodged the report of the incident to police

officer, Barsoi Police Station on 10.08.1990 itself and

accordingly the crime in question came to be registered

against the present accused as well as absconding

accused.

(e) During the course of investigation inquest notes were

taken and knife lying on the spot of the incident, blood

stained clothes, stones smeared with blood came to be

seized by the investigating officer. Dead body was sent

for post mortem examination. Statement of witness

came to be recorded and on completion of routine

investigation, the present appellant/accused came to be

charge sheeted. It is reported that the co-accused is

absconding.

Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

(f) The charge for the offence punishable under Section

302 read with 34 of the Indian Penal Code was framed

against the appellants. He pleaded not guilty and

claimed trial. The prosecution adduced its evidence by

examining in all ten witnesses and by tendering

documentary evidence also. In rebuttal the accused did

not examine any defence witness. After hearing the

parties learned trial Court by the impugned judgment

recording the finding that the accused has committed

murder of Mahendra Yadav by sharing common

intention and accordingly he came to be convicted for

offence punishable under Section 302 read with 34 of

the Indian Penal Code. He is sentenced to suffered

imprisonment for life.

3. We heard Mr. Navin Kumar, learned Amicus Curiae

appointed by this Court on 16.11.2021 for assisting the Court. By

taking us through the record and proceedings he argued that the

investigating officer of this case is not examined by the

prosecution. Evidence of the prosecution suffers from

contradictions in respect of the timing of the incident. He further

submitted that chain of circumstances is not proved by the

prosecution.

Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

4. As against this Mr. Dr. Mayanand Jha, learned Senior

Counsel appearing for the prosecution vehementally argued that

there is no question of establishing chain of circumstance in a case

of direct evidence against the accused. As per the submission of

the learned Senior Counsel appearing for the prosecution, evidence

of witnesses namely P.W. 1 Ram Lal yadav and P.W. 2 Pannu

Yadav is reliable and trustworthy. It is gdaining corroboration

from evidence of P.W. 4 Mewalal Roy and P.W. 5 Tepu Roy @

Sagar Roy.

5. We have gone through the record and proceedings and

have considered the rival submissions. It needs to be put on record

that the instant case is not based on circumstantial evidence and

therefore we find no substance in contention of Mr. Navin Kumar,

Amicus Curiae that the prosecution has failed to establish the chain

of circumstance. The prosecution has examined two witnesses to

prove conduct of the accused persons soon prior to the incident and

has also examined two witnesses who are said to be eye witnesses

to the incident in question. If their evidence is held to be reliable

and trustworthy then there is no question of establishing the chain

of circumstance to infer guilt of the accused with the help of

indirect evidence.

6. Death of Mahendra Yadav on 10.08.1990 is not in

much dispute. The dead body of Mahendra Yadav is seen from Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

evidence of P.W. 6 Dr. Birendra Prasad Gupta, Medical Officer of

Subdivisional Hospital, Kishanganj, was received by the said

Hospital for conducting post mortem examination. This witness

has conducted autopsy on dead body of Mahendra Yadav, son of

Mahadeo Lal Yadav. His evidence which is corroborated by the

contemporaneous report of post mortem examination prepared by

him goes to show that dead body of Mahendra Yadav was having

perforating wound of size of 1.5 cm x ½ cm x abdominal cavity

deep just above umbilical region. It was found that back of

omentum was protruding out of the said injury. Stomach of the

dead body was found also punctured from which undigested foot

was oozing. Abdominal cavity of the dead body of Mahendra

Yadav was full with blood and blood clots. By noting this

condition of the wound on the dead body P.W. 6 Dr. Birendra

Prasad Gupta came to the conclusion that death of Mahendra

Yadav was caused by sock and hemorrhage as a result of

penetrating wound. The report of the post mortem examination is

corroborating his version. His evidence is not shattered in the

cross-examination, hence, with evidence it can be concluded that

deceased Mahendra Yadav tried homicidal death on 10.08.1990.

7. Soon after death of Mahendra Yadav P.W. 7 Jagdish

Yadav reached on the spot of the incident. He is brother of

deceased Mahendra Yadav. He was informed about the incident by Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

P.W. 1 Ram Lal Yadav - uncle of the deceased. As per version of

P.W. 7 Jagdish Yadav he rushed to the spot after P.W. 1 Ram Lal

Yadav had informed him about murder of Mahendra Yadav and

saw the dead body of Mahendra Yadav lying on the metal and

kuchha road near the railway line. He also deposed that a knife

was lying there. As per his version he lodged the first information

report (Exhibit 1) on the spot of the incident itself when the police

officer reached there. He has also stated about taking inquest notes

and seizure of knife as well as other articles from the spot by the

police officer. In his cross-examination it is brought on record that

at the time of lodging the first information report by him he noted

that the present appellant/accused was in custody of the police

officer and was sitting in the jeep.

8. As P.W. 7 Jagdish Yadav had received information

about the incident from P.W. 1 Ram Lal Yadav, let us examine

evidence of P.W. 1 Ram Lal Yadav. This witness is uncle of

deceased Mahendra Yadav . He deposed that at about 02.00 pm of

the day of the incident, he was returning to his home from Barsoi

Railway Station. During his return journey he saw accused persons

holding Mahendra Yadav (since deceased). Absconding accused

Mahendra Ravidas was found giving a blow of knife on abdomen

of Mahendra Yadav. P.W. 1 Ram Lal Yadav further stated that the

Mahendra Yadav fell down on metal laid on kuchha portion of road Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

and the accused persons ran away by leaving the knife on the spot

of the incident itself. P.W. 1 Ram Lal Yadav further stated that

P.W. 2 Pannu Yadav was present on the spot. As per P.W. 1 Ram

Lal Yadav the motive behind the incident is scolding of absconding

accused Mahendra Ravidas by deceased Mahendra Yadav on

account of outraging the modesty of his wife. From cross-

examination of this witness it is brought on record that upon

hearing the shouts of Mahendra Yadav, he rushed but by that time

Mahendra Yadav fell down and accused persons ran away. Except

this there is nothing worth mentioning in the cross-examination of

P.W. 1 Ram Lal Yadav to cast shadow of doubt on his version.

Moreover, version of this witness in the chief cross-examination is

cemented by his cross-examination which demonstrates that he

rushed to save deceased Mahendra Yadav but by that time

Mahendra Yadav had collapsed and the accused persons ran away.

Thus, this witness has seen the incident of murder of Mahendra

Yadav.

9. P.W. 2 Pannu Yadav is father-in-law of deceased

Mahendra Yadav. Since prior to two days from the incident, he

was staying at the house of deceased Mahendra Yadav. This part

of his evidence remained unshattered at all in the cross-

examination. As per evidence of P.W. 2 Pannu Yadav, on the day

of the incident deceased Mahendra Yadav was accompanying him Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

for reaching him to Barsoi Railway Station. P.W. 2 Pannu Yadav

further testified that appellant/accused Sahbuddin @ Sahabudia

and absconding accused Mahendra Ravidas were walking behind

them in the same direction. P.W. 2 Pannu Yadav further stated that

on the way to the Railway Station appellant/accused Sahbuddin @

Sahabudia caught hold of deceased Mahendra Yadav from behind

and then absconding accused Mahendra Ravidas gave a blow of

knife on abdomen of Mahendra Yadav. That blow landed above

the naval of the deceased. Mahendra Yadav fell down and

subsequently died. Even P.W. 2 Pannu Yadav testified that the

incident was also seen by P.W. 1 Ram Lal Yadav.

10. P.W. 2 Pannu Yadav was cross-examination by the

defence. It is brought on record from his cross-examination that

one eye of this witness is totally damaged. The Barsoi Railway

Station was at a distance of 20-30 meters from the house of

deceased Mahendra Yadav. It is also brought on record from the

cross-examination of this witness that the appellant/accused

Sahbuddin @ Sahabudia caught hold of Mahendra Yadav from

behind and as soon as the blow of knife landed on his person,

Mahendra Yadav fell down. This witness claims that his statement

recorded after 10-15 of the occurrence. However there is no

further cross-examination of this witness on this aspect. It is seen

from this material elicited in cross-examination of P.W. 2 Pannu Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

Yadav that case of prosecution is strengthen by the material

coming on record from his cross-examination. Evidence of this

witness is clear, cogent and consistent on the aspect that the

appellant/accused caught hold of deceased Mahendra Yadav from

behind in order to enable absconding accused Mahendra Ravidas to

inflict a blow of knife on his abdomen.

11. The prosecution has also adduced evidence regarding

conduct of accused persons soon prior to the incident. P.W. 4

Mewalal Roy and P.W. 5 Tepu Roy @ Sagar Roy are residents of

the village of deceased. Both of them, in unison deposed that they

saw both the accused persons following P.W. 2 Pannu Yadav and

deceased Mahendra Yadav. P.W. 4 Mewalal Roy stated that when

he was outside his house, he saw Mahendra Yadav (since deceased)

and P.W. 2 Pannu Yadav going towards Barsoi Railway Station and

both accused persons were going behind them. His cross-

examination shows that he saw all these four persons proceeding

towards Barsoi Railway Station from the distance of 20 to 25

cubits. His cross-examination examination shows that he has not

seen knife on the person of absconding accused Mahendra

Ravidas. P.W. 5 Tepu Roy @ Sagar Roy has stated that he was

returning from the village to Barsoi Railway Station and on the

way he saw P.W. 2 Pannu Yadav accompanied by deceased

Mahendra Yadav proceeding towards Railway Station. This Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

witness also saw that both the accused persons were also

proceeding to the direction of the Railway Station by walking

behind P.W. 2 Pannu Yadav and deceased Mahendra Yadav.

Evidence of both these witnesses is absolutely unshattered in the

cross-examination. Thus, pre-event conduct of appellants

Sahbuddin @ Sahabudia in following the victim speak volumes.

12. With this evidence in our considered opinion the

prosecution has established the fact that when P.W. 2 Pannu Yadav

accompanied by deceased Mahendra Yadav were proceeding

towards Barsoi Railway Station, appellant/accused Sahbuddin @

Sahabudia caught hold of Mahendra Yadav from behind to

facilitate Mahendra Ravidas in inflicting a stab wound on abdomen

of deceased Mahendra Yadav. It was a forceful blow as seen from

version of P.W. 6 Dr. Birendra Prasad Gupta causing extensive

damage to the internal organs of the deceased and ultimately

causing death of Mahendra Yadav. It is seen from the medical

evidence that the act of stabbing at the abdomen of the deceased by

means of knife was done with the intention of causing such bodily

injury which the assailants were certainly knowing as sufficient to

cause death of Mahendra Yadav. Forceful fatal blow on the

abdomen of the victim, by using a knife reflect intention of the

assailants which can be non-else than the commission of murder. Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

13. The question which follows for re-consideration is

whether with the aid of Section 34 of the Indian Penal Code,

present appellant/accused can be convicted for the offence

punishable under Section 302 of the Indian Penal Code for causing

murder of Mahendra Yadav. Undoubtedly the existence of a

common intention amongst the participants in a crime is absolutely

essential for attributing vicarious liability as envisaged by Section

34 of the Indian Penal Code. However, this does not implies that

the acts of the several or of all the accused in commission of an

offence jointly must be the same or identical in nature. What is

material is that the acts different in character must have been

actuated by one and the same common intention in order to attract

the provisions of Section 34 of the Indian Penal Code. Intention is

state of mind and seldom there can be a direct proof thereof. As

such, such intention can be infered from the circumstances

appearing from the proved facts and the material on record. Such

inference need not be drawn only from the nature of injury

inflicted but also can be deduced from other circumstances. In the

matter of Krishnan and another Vrs. State Rep. by Inspector of

Police A.I.R. 2003 SC 2978(1) while explaining this position of

law the Hon'ble Supreme Court has held that

(i) It is to be seen whether the accused persons in furtherance of their common intention caused the death of the deceased on the alleged date, time and place. A charge under S. 34 of I.P.C., presupposes the sharing of a Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

particular intention by more than one person to commit a criminal act. The dominant feature of S. 34 is the element of participation in actions. This participation need not in all cases be by physical presence. Common intention implies acting in concert. There is a pre- arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The principle of joint liability in the doing of a criminal act is embodied in S. 34 of the I.P.C. The existence of common intention is to be the basis of liability. That is why the prior concert and the pre-arranged plan is the foundation of common intention to establish liability and guilt.

(ii) Section 34 deals with the doing of separate acts, similar or diverse, by several persons, if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself' for 'that act' and 'the act' in the latter part of the section must include the whole section covered by a ' criminal act' in the first part, because they refer to it. Constructive liability under S. 34 may arise in three well-defined cases. A person may be constructively liable for an offence which he did not actually commit by reason of :-

(a) The common intention of all to commit such an offence (Section 34)

(b) His being a member of a conspiracy to commit such an offence (Section 120-A)

(c) His being a member of unlawful assembly the members whereof knew that an offence was likely to be committed (Section 149) Section 34 is framed to meet a case in which it may be difficult to distinguish between the acts of individual members of a party or to prove exactly what part was taken by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. The provision embodies the commonsense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually.

Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

(iii) In view of the factual aspects highlighted above, the inevitable conclusion is that accused Krishnan and Ganesan are equally liable for commission of offence.

(iv) Applicability of Section 34 depends upon the facts and circumstances of each case. As such no hard and fast rule can be laid down as to the applicability or non-applicability of the Section 34. For applicability of the Section, it is not necessary that the acts of several persons charged with commission of an offence jointly, must be the same or identically similar. The acts may be different in character but must have been actuated by one and the same common intention in order to attract the provision.

(v) The fact situation in the present case has great similarity with those in Charan Singh Vs. State of Punjab (AIR 1998 SC 323). In that case principal accused gave a gandasa blow from the sharp side on the head of the deceased. That was the fatal blow. Co- accused also assaulted the deceased with the gandasa on the backside near the shoulder of the deceased. It was held that attack at different places on different sides of the weapons of assault did not show absence of common intention.

14. Keeping in mind this position of law if evidence

adduced by the prosecution in the instant case seen, it becomes

clear to us that both assailants including the appellant/accused were

following deceased Mahendra Yadav from their village. At that

time absconding accused Mahendra Ravidas was having a knife.

At the opportune time and place, present appellant/accused

Sahbuddin @ Sahabudia caught hold of deceased Mahendra Yadav

from behind. This act on the part of the appellant/accused

Sahbuddin @ Sahabudia facilitated absconding accused Mahendra

Ravidas in inflicting fatal wound on the deceased. Thus, it is

crystal clear that the appellant/accused Sahbuddin @ Sahabudia Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

was sharing the common intention of committing murder of

Mahendra Yadav with co-accused Mahendra Ravidas and therefore

he is also liable for the result of the act which they both intended

commonly.

15. Non-examination of investigating officer is not a

ritualistic formula to discard each and even prosecution case. No

circumstances are brought on record by the defence to demonstrate

that by non-examination of the investigating officer, prejudice is

caused to the appellant/accused. In the instant case the prosecution

with the aid of evidence coming from the trustworthy and reliable

witnesses has established the offence alleged against the present

appellant/accused. Though P.W. 1 Ram Lal Yadav and P.W. 2

Pannu Yadav are related to the deceased, there is nothing in cross-

examination of both these witnesses to infer that they are brought-

up witnesses and are telling a lie. Their evidence appears to us

reliable and trustworthy. Evidence on record demonstrates

common intention sharing by the present appellant/accused with

the absconding accused Mahendra Ravidas. Murder of Mahendra

Yadav was certainly caused with an intention to cause his death by

inflicting a forceful blow of knife on vital part of abdomen.

16. In the result, the Appeal is devoid of merit and the

same is accordingly dismissed.

Patna High Court CR. APP (DB) No.5 of 1995 dt. 25.11.2021

17. We direct the High Court Legal Service Authority to

pay an amount of Rs.5,000/- to Mr. Navin Kumar for service

rendered by him.

                                                                         (A. M. Badar, J)


                     Sunil Kumar Panwar, J.              I agree.


                                                                     ( Sunil Kumar Panwar, J)

Shamshad/-
AFR/NAFR                NAFR
CAV DATE                22.11.2021
Uploading Date          25.11.2021
Transmission Date       25.11.2021