Pradeep Yadav vs The State Of Bihar
2022 Latest Caselaw 4364 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.224 of 2014
       Arising Out of PS. Case No.-100 Year-2012 Thana- ROH District- Nawada
======================================================

Pradeep Yadav son of Saukhi Yadav r/o village-Bhatta P.S. Roh, District- Nawada.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

======================================================

WITH

CRIMINAL APPEAL (DB) No. 267 of 2014 Arising Out of PS. Case No.-100 Year-2012 Thana- ROH District- Nawada ====================================================== Arun Yadav son of Rajo Yadav r/o village-Bhatta, P.S. Roh, District-Nawada.

... ... Appellant/s Versus

The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 224 of 2014) For the Appellant/s : Mr. Shiya Ram Sahi, Advocate Mr. Rabindra Prasad Singh, Advocate For the Respondent/s : None Mr. Prince Kumar Mishra, Amicus Curiae (In CRIMINAL APPEAL (DB) No. 267 of 2014) For the Appellant/s : Mr. Rajesh Kumar, Advocate Mr. Dharmendra Nath Mishra, Advocate Mr. Gajendra Kumar, Advocate For the Respondent/s : None Mr. Prince Kumar Mishra, Amicus Curiae ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE A. M. BADAR) Date : 10-08-2022 Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Appellant/accused Arun Yadav and

appellant/accused Pradeep Yadav, by these two separate appeals

are challenging the judgment and order dated 19.02.2014 and

20.02.2014 respectively, passed by the learned Ad hoc

Additional Sessions Judge -II, Nawada, in Sessions Case No. 42

of 2013/16 of 2013, thereby convicting them and sentencing

them appropriately. Appellant/accused Arun Yadav has been

convicted of the offence punishable under Section 302 of the

Indian Penal Code and under Section 27 of the Arms Act 1959.

Accordingly, he has been sentenced to suffer rigorous

imprisonment for life apart from imposition of fine of Rs.

10,000/- for the offence punishable under Section 302 of the

Indian Penal Code. For the offence punishable under Section 27

of the Arms Act, he is sentence to undergo rigorous

imprisonment for three years. Some default sentence is also

imposed for non-payment of fine. Appellant/accused Pradeep

Yadav has been convicted of the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code and

he has been sentenced to undergo rigorous imposition for life

apart from imposition of fine of Rs. 10,000/- and in default to

undergo rigorous imprisonment for six months. As both these Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

appeals are arising out of common judgment and order, they are

being decided by this common judgment. For the sake of

convenience, the appellant shall be referred to in their original

capacity as an accused.

2. The facts leading to the prosecution of the

accused gathered from the Police report can be summarized

thus:

(A) According to the prosecution case, these

accused persons along with others, in furtherance of their

common intention committed murder of Munna Mian at about

7:30 PM of 31.10.2012 at Bhatta Garh falling under jurisdiction

of Police Station Roh of District Nawada.

(B) Munna Mian was residing at village Bhatta

Garh along with his family members including his mother PW 7

Hasiba Khatoon, his sister PW 10 Baby Khatoon (the First

Informant) and his brother-in-law PW 9 Md. Khalid Akhtar. At

about 7:00 to 7:30 PM of 31.10.2012, Munna Mian (since

deceased) along with his neighbor PW 5 Mohammad Jubair

Ahmad were going towards the southern side of their village for

answering the nature's call. When they reached at the Toddy

shop of PW11 Yugal Chaudhary, both the accused persons

accompanied by others came from southern side. They caught Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

hold of Munna Mian and at the instigation of accused Pradeep

Yadav, accused Arun Yadav fired a bullet at the left temporal

region of Munna Mian. Munna Mian suffered a fall and the

people present there started shouting. The accused person along

with their associates ran away towards the southern direction.

Because of the sound of Gun fire and shouts of people, PW 1

Md. Jawed Husain, PW 2 Md. Reyazuddin, PW 7 Hasiba

Khatoon and PW 10 Baby Khatoon rushed at the spot of the

incident. According to the prosecution case, PW 6 Sakim Shah

and PW 9 Md. Khalid Akhtar so also PW 11 Yugal Choudhary,

PW 12 Upendra Sharma and PW 13 Naresh Ravidas had

witnessed the incident of commission of murder of Munna

Miya.

(C). Because of bullet wound, Munna Mian died on

the spot of the incident instantaneously. Informant about the

incident reached at Police Station Roh. That is how Sub-

Inspector Pramod Kumar, Station House Officer, went to Bhatta

Garh where at about 8:30 PM of 31.10.2012 itself, PW 10 Baby

Khatoon reported the incident and accordingly the FIR came to

be lodged. Formal FIR came to be prepared thereafter by

registering Crime No. 100 of 2012 for the offences punishable

under Section 302 read with 34 of the Indian Penal Code and Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

under Section 27 of the Arms Act.

(D). During the course of investigation, dead body

of Munna Mian came to be inspected and in present of PW 1

Md. Javed Husain, inquest notes came to be recorded. It was

then sent for post mortem examination to the Sadar Hospital,

Nawada, where PW 4 Dr. Prabhakar Singh had conducted the

autopsy on 01.11.2012. The spot of the incident came to be

inspected by PW 15 Chandra Shekhar Azad, JSI of Roh Police

Station. One country- made pistol came to be seized from the

vicinity of the spot of the incident. It was seized in presence of

PW 2 Md. Riyajuddin and PW 8 Md. Abbas by preparing

seizure Panchnama. Statement of witnesses came to be recorded

and on completion of routine investigation, charge sheet came to

be filed against the accused by keeping investigation in respect

of others pending.

(E). The learned Trial Court had framed the charges

against the accused. Both the accused pleaded not guilty and

claimed trial.

(F). In order to bring home the guilt to the accused,

the prosecution has examined in all 16 witnesses. Co-villager

Md. Javed Husain who rushed on the spot soon after the incident

is examined as PW 1. He is a Panch witness to the inquest notes. Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Another co-villager Md. Riyajuddin who rushed on the spot

after the incident is examined as PW 2. He is a Panch witness to

the seizure of the country-made pistol.

Sergeant Major Dinesh Kumar Singh who examined the seized

country made pistol is examined as PW 3. Autopsy surgeon Dr.

Prabhakar Singh of the Sadar Hospital, Nawada, is examined as

PW 4. Alleged eye witness Md. Jubair Ahmad - a co-villager, is

examined as PW 5. Shakim Shah, cousin of the deceased who

also claims to be an eyewitness to the incident is examined as

PW 7. Hasiba Khatoon, mother of the deceased who rushed on

the spot soon after the incident is examined as PW 7. Md.

Abbas, another Panch witness to the seizure of the country-made

pistol is examined as PW 8. Md. Khalid Akhtar is brother-in-law

of deceased Munna Miya and husband of PW 10 Baby Khatoon.

He is examined as PW 9. PW 10, Baby Khatoon is the first

informant. She is sister of the deceased. Alleged eye witnesses

Yugal Chaudhary, Upendra Sharma and Navesh Ravidas are

examined as PW 11, 12 and 13 respectively. They turned hostile

to the prosecution. Sub-Inspector Mohan Kumar is strangely

examined twice as PW 14 and PW 16 instead of recalling him

for recording his further evidence. He had produced the fire-arm

in sealed condition on the first occasion and on the second Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

occasion he was examined to prove the Sanha entry.

Investigating Officer Chandra Shekhar Kumar Azad, JSI of Roh

Police Station is examined as PW 15.

(G). The defence of the accused was that of total

denial. They, however, did not enter in the defence.

(H). After hearing the parties, by the impugned

judgment and order, the learned Trial Court was pleased to

convict the accused and to sentence them as indicated in the

opening para of this judgment.

3. I heard the learned counsel appearing for both the

appellants at sufficient length of time. It is argued that both the

appellants are falsely implicated in the crime in question. In fact

Munna Mian was killed by somebody else and later on by filing

the false FIR, both the appellants are falsely implicated. It is

further argued that the place of occurrence is not proved by the

prosecution. PW 15 Chandra Shekhar Azad, Investigating

Officer stated that the incident took place on the road whereas

other witnesses are stating some other spot as the place of

incident. It is argued that the Investigator had not collected

blood stained earth from the spot of the incident and had not

sent the same to the FSL for proving the spot of the incident. To

substantiate this contention, reliance is place on Lakshmi Singh Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

and Others Vs. State of Bihar reported in AIR 1976 Supreme

Court 2263. It is further argued that the medical evidence is not

corroborating the ocular evidence; rather the medical evidence is

not in tune with the ocular evidence. According to the learned

counsel, the medical evidence shows that the bullet was fired

from a distance of more than six feet and, therefore, ocular

evidence that it was fired from a close range can not be

accepted. It is further argued that the prosecution case that

accused Pradeep so also his associates had caught hold of

Munna Miya and accused Arun fired a bullet is improbable

because there was possibility of the bullet hitting others also.

Reliance is placed on judgment in matters of Salim Zia vs.

State of U.P reported in 1979 Supreme Court 391, Ram

Narain Vs. The State of Punjab reported in AIR 1975

Supreme Court 1727 and Kapildeo Mandan and Others vs.

State of Bihar reported in 2008(1) PLJR (SC) 209 for

contending that the prosecution case becomes doubtful because

of variation in the ocular and medical evidence. It is further

argued on behalf of the appellant that there was no source of

light for establishing identity of the accused. PW 6 Sakim Shah

is stating the direction from which the accused and their

associates were holding deceased Munna Mian and this fact, Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

according to the learned counsel for the appellant, makes the

prosecution case doubtful.

4. As usual none appeared for the respondent/State

of Bihar in these two appeals. At this stage we deem it

appropriate to reproduce our observation made in para-4 in our

judgment dated 25.07.2022 in the matter of Nepali Yadav and

Another Vs. State of Bihar which reads thus:

"4. As usual, none appeared to represent the Prosecuting Agency, i.e., the State of Bihar, in these two appeals. It is considered that when a crime takes place in a society, it is not just the victim who is affected. The entire society and in fact the State gets affected and therefore the prosecution is taken up by the State instead of allowing the victims of the crime to prosecute the accused. The State as such is duty bound to provide the Public Prosecutor for prosecuting the case so as to ensure that justice is being done in an impartial manner. The Public Prosecutor is an important and significant component of the Judicial System who is supposed to safeguard rights of the victim as well as the accused person as per the facts of the case, by assisting the Court. We are at pains to note that in many of the old cases taken up by this Court, the Public Prosecutors are not entrusted by the State of Bihar. There seems to Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

be something fundamentally wrong with the concerned Department of the State of Bihar. This tendency of not appointing the Prosecutor for representing the State of Bihar even in the appeal relating to the offence under Section 302 IPC needs to be depreciated and is depreciated by us. Left with no other alternative, we appointed Mr. Prince Kumar Mishra, the learned Advocate, to assist us as an Amicus Curiae for deciding these appeals in order to enable us to keep the interest of the Prosecuting Agency i.e. the State of Bihar safeguarded, in absence of the appointment of the Public Prosecutor by it in these appeals."

This position has not changed even in the instant

appeals and as the respondent/State of Bihar was going

unrepresented, we were constrained to appoint Mr. Prince

Kumar Mishra, the learned Advocate to act as an Amicus Curae

in this matter also in order to see that interest of all the stake

holders including the State are protected.

5. We heard Mr. Mishra, the learned Amicus Curae.

He vehemently argued that it is settled principal of criminal

jurisprudence that when there is slight variation between the

ocular evidence and medical evidence, the ocular evidence

always prevails. According to him, PW 5 Md. Jubair is a natural Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

witness to the crime in question. This witness is totally

impartial and his version is gaining corroboration for other

evidence on record. Therefore, according to Mr. Mishra, the

slight variation, if any, in the ocular evidence and medical

evidence is of no consequence. He argued that PW 6 Sakim

Shah and PW 9 Md. Khalid Akhtar, who have witness the

incident, are fully supporting the prosecution case and there is

nothing in cross-examination of both these witnesses to doubt

their testimony. Similarly, according to the learned Amicus

Curae, witnesses such as PW 7 Hasiba Khatoon and PW 10

Baby Khatoon had seen the accused running from the spot of the

incident. There is evidence regarding former statement of the

eyewitnesses which is corroborating the version of eyewitness.

Mr. Mishra, the learned Amicus Curae, has placed reliance on

judgment in Suresh and Another vs. State of U.P reported in

(2001) 3 Supreme Court Cases 673 and Chhott Ahirwar vs.

State of Madhya Pradesh reported in (2020) 4 SCC 126 to

submit that common intention of the accused is reflected from

their conduct in eliminating Munna Mian.

6. We have carefully considered the submissions so

advanced and we have also perused the record and proceedings.

7. The case in hand is that of commission of murder Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

of Munna Mian. Therefore, the prosecution is required to

establish that Munna Mian died homicidal death. The factum of

death of Munna Mian occurring on 31.10.2012 is not in serious

dispute. Ocular evidence coming from the mouth of his near and

dear ones such as PW 7 Hasiba Khatoon, PW 9 Md. Khalid

Akhtar and PW 10 Baby Khatoon on this aspect went

unchallenged. It is in evidence of PW 15 Chandra Shekhar Azad

that he took the inquest notes by inspecting the dead body of

Munna Mian. This witness has duly proved the inquest notes

and his evidence is corroborated by evidence of Panch witness

PW 1 Md. Javed Husain. The inquest notes show that blood was

oozing from wounds on left as well as right temporal region of

deceased Munna Mian. PW 4 Dr. Prabhakar Singh who

conducted autopsy on dead body of Munna Mian of 01.11.2012

has deposed that he found following antimortem external

injuries on dead body of deceased Munna Miya.

I. Lacerated wound of size 2" X 1" X brain deep

margin inverted with blackening behind left Pinna

just below mastoid process i.e., entry wound.

II. Lacerated wound of size 2" X 1" X brain deep,

margins everted with herniation of brain matter

behind right Pinna about mastoid process i.e., exit Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

wound.

The autopsy surgeon further deposed that the

wound No. 1 and wound No. 2 were communicative. Upon

internal examination of the dead body, PW 4 Dr. Prabhakar

Singh had found that there was fracture of both mastoid bone of

the skull with extensive laceration of brain matter from injury

Nos. 1 and 2. With this, the authopsy surgeon opined that cause

of death of Munna Mian was haemorrhage and shock due to

above noted injuries caused by the fire arm. During cross-

examination, this witness has stated that he found the marks of

tattooing and blackening and no charring. He further stated that

charring is always caused when the fire arm is fired from a close

range. This autopsy surgeon further depose that in this case, the

fire arm might have been fired from a distance of more than six

feet. He has further stated that the injury noted by him is not

possible in sitting condition but it is possible in standing

position.

8. This is all about the evidence of the autopsy

surgeon as well as the ocular evidence regarding homicidal

death of Munna Mian. With this evidence, the prosecution has

established homicidal death of Munna Mian.

9. Now let us examine whether the accused persons Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

are responsible for causing homicidal death of Munna Mian. In

order to prove the offence of commission of murder of Munna

Mian, the prosecution is heavily relying on evidence of three

eyewitnesses, namely, PW 5 Md. Jubair Ahmad, PW 6 Sakim

Shah and PW 9 Md. Khalid Akhtar. Similarly the prosecution is

also relying on version of PW 1 Md. Jawed Hussain, PW 7

Hasiba Khatoon and PW 10 Baby Khatoon for corroborating the

version of eyewitnesses and to place on record the post event

happenings. As against this, according to the defence version,

the so called eyewitnesses have not seen the incident and the

prosecution has even failed to prove the spot of the incident

where Munna Mian was allegedly murdered. It is not in dispute

that the accused persons are co-villagers residing in village

Bhatta Garh. Though when the eyewitness account is available,

there is no need to prove motive of the crime in question, in the

case in hand, as seen from evidence of PW 9 Md. Khalid Akhtar

(brother-in-law of the deceased) three days prior to the incident,

Munna Mian had objected the act of the accused persons in

drinking liquor near Kabristan. Cross-examination of PW 7

Hasiba Khatoon (mother of the deceased) shows that the said

Kabristan is very near to the House of deceased Munna Mian.

According to PW 9 Md. Khalid Akhtar, the accused persons had Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

threatened Munna Mian because of his objection to their acts of

drinking liquor at the Kabristan.

10. Prior to examining the truthfulness and

authenticity of version of eyewitnesses, let us put on record

undisputed position emerging on record regarding spot of the

incident where murder of Munna Mian was committed. This will

take care of argument of the learned counsel for the appellants

that the spot of the incident was not proved. Official witness PW

15 Chandra Shekhar Kumar Azad, the Investigating Officer, in

his evidence has clarified the spot of the incident as the road in

front of House of PW 11 Yugal Chaudhary which runs in north-

south direction where the shop of said Yugal Chaudhary is also

situated. Thus, according to the Investigating Officer, dead body

of Munna Mian was found on the road in front of shop and

house of PW 11 Yugal Chaudhary. The defence has not disputed

this version of the Investigator. PW 5 Md. Jubair Ahmad who

claims to be an eyewitness has stated that the incident took place

on the road flowing in north-south direction, on the eastern side

of which House and on the western side of which the Toddy

shop of PW 11 Yugal Chaudhary is located. This is version of

PW 5 Md. Jubair appearing in cross-examination. Therefore, it

assumes importance. Another eyewitness PW 9 Md. Khalid Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Akhtar has described the spot of the incident in answer to the

question put to him in cross-examination by stating that the dead

body of Munna Mian was on the road flowing from north to

south direction and eastern side of that place, house of PW 11

Yugal Chaudhary and on the western side of which shop of said

Yugal Chaudhary is situated. Even PW 6 Sakim Shah, another

witness who claims to have seen the incidence has stated about

the spot of the incident as front side of Toddy shop of PW 11

Yugal Chaudhary. PW 1 Md. Jawed Hussain who rushed on the

scene of occurrence immediately after the incident has stated

that the incident took place on the road flowing from north to

south direction on which on west side there is Toddy shop and

on east side house of PW 11 Yugal Chaudhary is situated. PW 7

Hasiba Khatoon who also reached on the spot immediately has

stated that dead body of her son Munna Mian was lying near

shop of PW 11 Yugal Chaudhary. As per version of PW 10 Baby

Khatoon, she saw dead body of her brother Munna Mian

drenched in blood near shop of PW 11 Yugal Chaudhary. The

defence has got this aspect reaffirmed in cross-examination of

PW 10 Baby Khatoon. In answer to the question in her cross-

examination, PW 10 Baby Khatoon again reiterated that the spot

of the incident was in front of the shop and on the road. With Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

this unimpeachable evidence regarding spot of the incident on

record it is virtually not possible to harbour any doubt regarding

the spot of the incident. The incident, as seen from this

trustworthy evidence did take place on the road in front of

Toddy shop of Yugal Chaudhary. In order to prove a fact, proof

of mathematical precision is not required. The yard-stick is the

proof beyond all reasonable doubts. We are unable to see any

doubt in this evidence adduced by the prosecution regarding the

spot of the incident. Hence it was not at all required from the

prosecution to collect the blood stained earth from the spot and

to get it tested from the FSL to fix the spot. Ruling in the matter

of Lakshmi Singh (supra) as such, is of no avail to the

appellants.

11. According to the prosecution case, deceased

Munna Miya accompanied by PW 5 Mohammd Jubair Ahmad

was going for answering the nature's call and during that

journey, the incident of his murder took place. Therefore,

topography of the village also becomes relevant and it is brought

on record by defence by cross-examining PW 1 Mohammad

Jawed Hussain. His cross-examination shows that PW 11 Yugal

Chaudhary resides on the southern side of the village. The

village is situated on the northern side of the House and shop of Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

PW 11 Yugal Chaudhary. This aspect is further clarified by the

witnesses examined by the prosecution. PW 5 Md. Jubair has

stated that he along with Munna were proceeding towards

southern direction from the village for answering the nature's

call. PW 6 Sakim Shah, at the relevant time, had already got

himself relieved and has stated in his evidence that he had

returned from answering the nature's call and on the way, sat at

the shop of PW 11 Yugal Chaudhary. This version of PW 6

Sakim Sah also makes it clear that shop of PW 11 Yugal

intervenes in between the place commonly used by the villagers

for easing themselves and the residential area of village Bhatta

Garh. PW 9 Md. Khalid Akhtar has also clarified that the

incident took place when he was returning from the southern

direction after answering the nature's call.

12. With this evidence regarding the topography of

the village, let us now peruse evidence of the eye witnesses. PW

5 Md. Jubair is a co-villager. As per his version, at about 7:30

PM of 30.10.2012 he along with deceased Munna Mian were

going towards the southern direction of the village for answering

the nature's call and when they reached near the Toddy shop of

PW 11 Yugal Chaudhary, said Yugal offered them

Khaini/Tobacco and asked them to eat Khaini. As testified by Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

PW 5 Jubair, Yugal then lighted the lantern and hanged it. When

Yugal was standing in front of that shop of PW 11 Yugal

Chaudhary and eating Khaini, the accused persons came running

from the southern direction. This witness further stated that

accused Pradeep and others caught hold of Munna Mian and

accused Pradeep exhorted to fire and kill Munna Mian.

Thereupon accused Arun fired a bullet which hit the left

temporal region of Munna Mian. PW 5 Md. Jubair Ahmad stated

that then accused ran towards the northern direction. As per his

version, from the northern direction, PW 1 Md. Jawed Hussain

PW 7 Hasiba Khatoon and PW 10 Baby Khatoon came. PW 5

Md. Jubair Ahmad testified that then he told them about the

incident. He has also stated that PW 6 Sakim Sah, PW 11 Yugal

Chaudhary and PW 12 Upendra Sharma were present at the time

of the incident and PW 9 Md. Khalid Akhtar came from the

southern side at the time of the incident. This is the eyewitness

account of the incident given by PW 5 Md. Jubair Ahmad who

was accompanying the deceased at the time of the incident.

From his cross-examination itself, it is brought on record that

the incident took place in front of shop of PW 11 Yugal

Chaudhary while Munna Mian was standing and eating Khaini.

This witness was cross-examined as to how the accused Pradeep Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

and others caught hold of Munna Miya and the duration within

which the incident took place. He stated that the incident took

place within one minute. The defence has brought on record the

source of light at the time of the incident by questioning PW 5

Md. Jubair Ahmad. He answered that the lantern was burning at

the shop of PW 11 Yugal Chaudhary at the time of the incident.

The part of body on which the wound was sustained by the

deceased is also elicited from cross-examination of PW 5 Md.

Jubair Ahmad. He stated that the bullet hit one inch about the ear

and by penetrating head of Munna Mian it passed out from right

side of temporal region of Munna Mian.

13. This is all that has come on record from version

of PW 5 Md. Jubair Ahmad. His evidence is definite regarding

the seat of injury suffered by the deceased. This witness has

candidly stated the situation prevailed on the spot at the time of

incident. He has made it clear that deceased Munna Miya was

standing in front of the shop and was eating Khaini when he was

done to death by the accused. The medical evidence which we

will discuss subsequently makes it clear that the wound suffered

by Munna Mian was possible only in the standing position.

Thus, even the medical evidence unerringly points out that PW 5

Md. Jubair is a witness of truth and was present when the Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

deceased sustained a gun shot injury. This witness resides in the

vicinity of House of Munna Miya. Therefore, it was but natural

for him to accompany Munna Mian for going to answer the

nature's call. He has no motive to depose a lie against the

accused persons. No such circumstances are brought on record

from his cross-examination. His evidence is very specific about

the directions and the place of the incident. We see no reason to

disbelieve this natural witness to the incident.

14. PW 6 Sakim Shah is another co-villager and his

cross-examination makes it clear that after answering the

nature's call, he was sitting at the Toddy shop of PW 11 Yugal

Chaudhary. This witness has stated that PW 5 Md. Jubair Ahmad

and deceased Munna Mian came near that shop and PW 11

Yugal Chaudhary offered them Khaini/tobacco and asked them

to have it. This eyewitness clarified that PW 5 Md. Jubair

Ahmad sat down and Munna Mian was eating the Khaini while

standing there. At that point of time, the accused and their

associates came, four of them caught hold of Munna Miya and

Arun fired a bullet at the temporal region of Munna Miya. PW 6

Sakim Shah further depose that the bullet went through the head

of deceased Munna Mian and in the meanwhile PW 9 Md.

Khalid Akhtar reached on the spot. As per version of PW 6 Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Sakim Sah they all started shouting and the accused ran away

towards the Nala. He further stated that thereafter mother and

sister of the deceased came. Again in cross-examination of this

witness, the defence has questioned as to who held the deceased

and from what direction. He gave that direction. From his cross-

examination, it is elicited that accused Pradeep was holding

deceased Munna Mian from the eastern direction. The incident

of offering Khaini by PW 11 Yugal Chaudhary is again got

confirmed from cross-examination of this witness by the

defence. PW 6 Sakim Sah has further stated that the fired bullet

hit at a distance of one inch from ear of Munna Mian and

profused bleeding started from both sides of his head.

15. Cross-examination of this witness is thus

establishing his presence on the scene of occurrence since prior

to the incident. His cross-examination shows that he was present

on the scene of occurrence even before arrival of the deceased

Munna and had witnessed the incident of killing Munna Mian.

The defence could not elicit any material from cross-

examination of this co-villager for doubting his version about

the incident. Even his evidence regarding the wound sustained

by Munna Mian is very clear and precise and shows that he is a

witness of truth. His cross-examination further shows that Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Munna Mian was shot dead outside the Toddy shop of PW 11

Yugal Chaudhary in standing position. This version is fully in

tune with the medical evidence. There is no reason for us to

disbelieve version of this eyewitness, which is clear and

consistent.

16. PW 9 Md. Khalid Akhtar is brother-in-law of

deceased Munna Mian. As per his version, after answering the

nature's call he was returning from the southern side of the

village and during the course of this return journey both accused

and their associates came from behind him while running and

had crossed him to went ahead. Then this witness stated that

when they reached in front of Toddy shop of PW 11 Yugal

Chaudhary, accused Pradeep and others caught hold of Munna

and accused Arun fired a bullet at the temporal region of Munna

Mian. He further stated that PW 6 Sakim Sah and PW 5 Md.

Jubair Ahmad so also PW 11 Yugal Chaudhary, PW 12 Upendra

Sharma and PW 13 Naresh Ravidas were already present on the

spot of the incident. PW 9 Md. Khalid Akhtar testified that the

accused ran away and PW 7 Hasiba Khatoon, PW 10 Baby

Khatoon and PW 1 Jawed Hussain came on the spot of the

incident. He vouched that they all disclosed the incident to PW 7

Hasiba Khatoon, PW 10 Baby Khatoon and PW 1 Jawed Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Hussain. In answer to the question put in cross-examination, PW

9 stated that there was slight darkness on the spot of the incident

and he was at a distance of about 50 to 60 feet when the gun

shot was fired at Munna Mian. PW 9 Md. Khalid Akhtar is

relative of the deceased. However, there is nothing on record to

demonstrate that this witness has to gain something by false

implication of the accused. No such circumstances are brought

on record from version of this witness. It is seen from his

evident that the accused went ahead by crossing him and

committed murder of Munna Mian. This witness was having

opportunity to see the incident as he was just 50 to 60 feet away

from the place of the incident which occurred on the road. The

accused were known to him. There was sufficient light at the

time of the incident as seen from cross-examination of this

witness.

17. From scrutiny of evidence of all the three

eyewitnesses, it is crystal clear that their evidence is clear,

consistent and cogent. The defence has not brought on record

any material to disbelieve their version about the incident. They

all have stated in unison that Munna Mian was fired when he

was standing and was being held by other accused persons.

Cross-examination PW 4 Dr. Prabhakar Singh makes it clear Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

that deceased Munna Mian sustained gun shot wound while he

was in standing position. Medical evidence on record shows that

deceased Munna received gun shot wound behind left Pinna i.e.,

near left ear and that there was exit wound on Pinna of right

side. These three eyewitnesses have clearly stated that the bullet

went through and through causing entry and exit wound near

both ears of deceased Munna Mian. Thus, medical evidence is

fully supporting version of all these three eyewitnesses.

18. Now let us examine whether other evidence on

record is supporting the version of these three eyewitnesses.

PW 1 Md. Javed Hussain is a co-villager who was having

breakfast in the eatery of one Kailu Shah. That eatery was at

the house of Munna Mian. Evidence of this witness shows that

after hearing the sound of Gun shot, by lighting the torch he

rushed towards the spot of the incident. PW 7 Hasiba Khatoon

and PW 10 Baby Khatoon in whose house that eatery was

situated have corroborated the version of this witness by stating

that PW 1 Javed was ahead and they were running behind him

to rush to the spot after hearing the sound of Gun shot. PW 1

Javed further deposed that while rushing to the spot of the

incident he noticed five persons including both the accused

coming from the south direction and accused Arun was holding Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

a Pistol in his hand. As per his version when he went ahead, he

saw the dead body of Munna drenched in blood. He has spoken

about presence of PW 5 Md. Jubair Ahmad, PW 6 Sakim Shah,

PW 9 Md. Khalid Akhtar, PW 11 Yugal Choudhary and PW 13

Naresh Ravidas on the spot of the incident. PW 1 Javed Hussain

further deposed that PW 5 Jubair Ahmad had disclosed them that

PW 11 Yugal Chaudhary offered Khaini/tobacco and when

Munna Mian was rubbing that Khaini/tobacco accused persons

came from southern direction, four of them including accused

Pradeep Yadav caught hold of accused Munna Mian and Arun

Yadav fired a bullet at Munna Mian. This witness has spoken

about preparation of inquest Panchnama in the light of lantern

of PW 11 Yugal Chaudhary. Evidence of this witness is not at

all shattered in the cross-examination and former statement of

PW 5 Jubair in respect of the incident proved by this witness is

not even challenged in the cross-examination by the defence.

PW 5 Jubair had made the statement narrating the happening of

incident to this witness immediately after the incident when

mind of PW 5 Jubair was not polluted by the external forces.

PW 1 Jawed had reached on the spot of the incident within a

short span of time. Even if we accept evidence of Investigating

Officer PW 15 Chandra Shekhar Azad then also it is evident that Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

house of Munna Mian was at a distance of 500 yards i.e., less

than 1500 feet from the spot of the incident. This witness PW 1

Jawed had disclosed that distance to be about 40-50 feet

whereas PW 10 Baby Khatoon had stated that the said distance

is 60-70 feet. Unchallenged formal statement of PW 5 Md.

Jubair made to PW 1 Jawed regarding the mode and manner of

the incident fully corroborates version of PW 5 Jubair and is

relevant under Section 157 of the Evidence Act. This witness

has seen the accused running away from the spot of the incident

after committing the murder. Thus, the prosecution has brought

on record presence of the accused on the spot of the incident

immediately after the incident through evidence of this witness

PW 5 Javed.

19. Similar is the evidence of PW 7 Hasiba Khatoon

and her daughter PW 10 Baby Khatoon who are near relatives of

the deceased. Despite careful scrutiny of their evidence, we see

no reason to disbelieve them. None of them have claimed to be

an eyewitness to the incident. On the contrary they have

truthfully stated that they followed PW 1 Jawed to the spot of

the incident. Both of them have stated that on the road in front

of shop of Yugal, they saw Munna Mian lying while drenched

in the blood. These two witnesses have also heard from the Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

eyewitnesses as to how the incident of killing Munna Mian took

place. The important aspect of evidence of these two witnesses

is that they both had seen the accused persons running away

from the spot of the incident. PW 7 Hasiba Khatoon has

deposed that at that time accused Arun was holding pistol. In

cross-examination of PW 7 Hasiba Khatoon, presence of

eyewitnesses is again got reaffirmed by the defence. In cross-

examination of PW 10 Baby Khatoon, source of light is brought

on record. She has stated that the writing work was done by

police in the light of lantern of PW 11 Yugal Chaudhary. PW 5

Md. Jubair had clarified in his evidence that prior to the incident

PW 11 Yugal Chaudhary had lighted the lantern at his shop. She

has stated in cross-examination that the accused was holding

pistol but was not firing from it. Thus, both these eyewitnesses

who reached on the spot of the incident immediately after the

incident had witnessed both the accused running away from the

spot of the incident and then immediately both these witnesses

had seen dead body of Munna Mian drenched in blood. These

witnesses have clearly stated about presence of eyewitnesses on

the spot of the incident when they reached there. Thus, evidence

of PW 7 Hasiba Khatoon and PW 10 Baby Khatoon is also fully

corroborating the version of eyewitnesses. Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

20. The prosecution has claimed that a pistol came

to be seized from near the spot of the incident and that pistol

was got examined from ballistic expert PW 3 Dinesh Kumar

Singh. However, the prosecution has failed to trace out the

projectile. The prosecution has not got the projectile and the

empty cartridge tested in order to determine that the projectile

and the empty cartridge were fired from the seized pistol.

Hence, this evidence is not any assistance to the prosecution.

21. According to the learned counsel for the

appellants, there is variance in the medical and the ocular

evidence. He has submitted that the medical evidence shows

that the bullet was fired from the distance of more than 60 feet

and, therefore, the incident itself is improbable. Here it needs to

be noted that none of the prosecution witnesses have claimed

that the bullet was fired from the point blank range. They have

only deposed that the bullet was fired at the temporal region of

deceased Munna Mian. Medical evidence shows that there were

marks of tattooing and blackening at the wound but there was

no charring. PW 4 Dr. Prabhakar Singh has deposed that

charring occurs when the fire-arm is fired from a close range.

As no eyewitness has stated that the firing was from the close

range, it cannot be said that in absence of evidence of charring, Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

the prosecution case is doubtful. In the matter of Salim Ziya the

Supreme Court was discussing about fragmentation of the bullet

after entering in the body. Such is not the case in hand. In Ram

Narayan (Supra), the Supreme Court has held that when

evidence of witnesses is totally inconsistent with the medical

evidence or the evidence of the ballistic expert then there is

fundamental defect in the prosecution case. Such is not the case

in hand. Here the prosecution witnesses have not deposed that

the firing was from the point blank range. In Kapil Deo Mandal

and Others (Supra) the Supreme Court has held that in case of

variance between the medical evidence and ocular evidence, oral

evidence of eyewitness has to get primacy over the medical

evidence, unless and until the oral evidence is totally

inconsistent with the medical evidence. Facts of the instant case

shows that the ocular evidence is trustworthy and truthful.

22. As a matter of rule, it cannot be said that the

accused and his associates would never caught hold of the

victim when a bullet is to be fired at the victim. Here

eyewitness account of holding the deceased by accused Pradeep

Yadav and his associate is totally unshattered in cross-

examination of eyewitnesses. Firing at the deceased by accused

Arun while the deceased was being held by accused Pradeep Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Yadav and their associates is also not shattered in the cross-

examination. In all probability, though not from the point blank

range, the deceased was shot from a near distance. Therefore, it

cannot be said that the prosecution case is improbable or

unbelievable.

23. The net result of foregoing discussion makes it

clear that the prosecution has proved that when accused Pradeep

and others were holding Munna Mian, accused Arun fired a

bullet causing instantaneous death of Munna Mian. The bullet

was fired by aiming the head of deceased Munna Mian.

Accused Pradeep was holding him. Common intention of

accused Pradeep in commission of the act of murdering

deceased Munna Mian is writ large from evidence of the

prosecution. Munna Mian was done to death with an intention

of causing his death. In the matter of Chhota Ahirwar the

Supreme Court has dwelved on the principle of vicarious or

joint liability of the accused as envisaged by Section 34 of the

Indian Penal Code. Paragraphs 24 to 28 of that judgment are

relevant and they reads thus:

"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar [Lallan Rai v. State of Bihar, (2003) 1 SCC 268 : 2003 SCC (Cri) 301]. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused.

25. Mere participation in crime with others is not sufficient to attribute common intention. The question is whether, having regard to the facts and circumstances of this case, it can be held that the prosecution established that there was a common intention between the appellant-accused and the main accused Khilai to kill the complainant. In other words, the prosecution is required to prove a premeditated intention of both the appellant-accused and the main accused Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

Khilai, to kill the complainant, of which both the appellant-accused and the main accused Khilai were aware. Section 34 of the Penal Code, is really intended to meet a case in which it is difficult to distinguish between the acts of individual members of a party and prove exactly what part was played by each of them.

26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49] , "they also serve who stand and wait".

27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other.

28. The question in this case is, whether the prosecution has been able to Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

establish a prearranged common intention between the appellant-accused and the main accused Khilai to kill the complainant in pursuance of which the accused Khilai open fired from his pistol. The answer to the aforesaid question has to be in the negative for the following reasons:"

24. What is required under law is that the accused

persons sharing the common intention must be physically

present at the scene of occurrence and be shown not to have

dissuaded themselves from the intended criminal act for which

they share the common intention. It is proved by the

prosecution that while accused Arun was armed with a pistol,

accused Pradeep caught hold of deceased Munna Mian and

thereby facilitated Arun to eliminate Munna Mian. This

establishes common intention shared by accused Pradeep

making him liable for the final act of commission of murder of

Munna Mian.

25. Accused Arun is also convicted of the offence

punishable under Section 27 of the Arms Act by the learned trial

Court. Section 27 prescribes punishment for using arms in

contravention of Sections 5 and 7 of the Arms Act.

Contravention of Section 3 of the Arms Act is alleged by the Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

prosecution by contending that the accused was not holding the

valid license for possessing the fire-arm which he had used in

commission of the crime in question. For bringing home the

guilt of accused of Arun for this contravention of law the

prosecution was enjoined to prove that the prosecution is

backed with valid sanction as envisaged by Section 39 of the

Arms Act, 1959. For absence of prosecution, the accused Arun

could not have been found guilty of the offence punishable

under Section 27 of the Arms Act.

26. In the result the following orders:

I. Cr. Appeal (DB) No. 224 of 2014 of accused

Pradeep Yadav is dismissed by upholding his conviction as well

as resultant sentence.

II. Criminal Appeal (DB) No.267 of 2014 of

accused Arun Yadav is partly allowed. His conviction as well as

resultant sentence for the offence punishable under Section 302

of the Indian Penal Code is confirmed. However, he is acquitted

of the offence punishable under Section 27 of the Arms Act.

27. We put on record words of appreciation for the

able assistance rendered by Mr. Prince Kumar Mishra, learned

Amicus Curiae, to this Court in arriving at the proper conclusion

for deciding in that appeal by keeping in mind the interest of all Patna High Court CR. APP (DB) No.224 of 2014 dt.10-08-2022

stake holders. We direct the High Court Legal Services

Authority to pay an amount of Rs.5,000/- to Mr. Prince Kumar

Mishra, learned Amicus Curiae, for the services rendered by

him.

28. Let the Lower Court Records be sent back to the

learned Court below with a copy of this judgment and order.

(A. M. Badar, J)

( Rajesh Kumar Verma, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                05.08.2022
Uploading Date          10.08.2022
Transmission Date       10.08.2022