Patna High Court
Shambhu Choudhary vs The State Of Bihar on 23 December, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.494 of 2014
Arising Out of PS. Case No.-21 Year-2011 Thana- SAMHO District- Begusarai
======================================================
Shambhu Choudhary Son of Late Chandra Shekhar Choudhary Resident of
village - Akbarpur Nayatola Dhanha, P.S. Samho in the District of Begusarai
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
WITH
CRIMINAL APPEAL (DB) No. 418 of 2014
Arising Out of PS. Case No.-21 Year-2011 Thana- SAMHO District- Begusarai
======================================================
1. Jai Kishore Choudhary son of Sitaram Choudhary
2. Ram Pravesh Choudhary son of Ram Nandan Choudhary
Both resident of village - Naya Akbarpur, Tola Dhanha, P.S. Samho, District
- Begusarai
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
WITH
CRIMINAL APPEAL (DB) No. 442 of 2014
Arising Out of PS. Case No.-21 Year-2011 Thana- SAMHO District- Begusarai
======================================================
1. Sudhir Choudhary
2. Sunil Choudhary Both S/o Devo Choudhary
3. Kaushal Choudhary S/o Bhagirath Choudhary
4. Upendra Choudhary @ Mahanth S/o Late Rameshwar Choudhary
All Residents of Village Akabarpur (Dhandha), P.S. Shamho, District
Begusarai.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
Appearance :
(In CRIMINAL APPEAL (DB) No. 494 of 2014)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mrs. Anita Kumari Singh, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 418 of 2014)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Ravi Ranjan, Advocate
For the Respondent/s : Mr. D. K. Sinha, APP
(In CRIMINAL APPEAL (DB) No. 442 of 2014)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwaj Raman, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Dharmendra Kumar Singh, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
Date : 23-12-2022
Criminal Appeal bearing No.418 of 2014 has
been filed by appellant/accused No.1 Jai Kishore Choudhary
and appellant/accused No.6 Ram Pravesh Choudhary. Criminal
Appeal bearing No. 442 of 2014 has been filed by
appellant/accused No.2 Kaushal Choudhary, appellant/accused
No.4 Sudhir Choudhary, appellant/accused No.5 Sunil
Choudhary and appellant/accused No.7 Upendra Choudhary.
Criminal Appeal bearing No.494 of 2014 has been filed by
appellant/accused No.3 Sambhu Choudhary. They all are
convicted by the impugned judgment of offences punishable
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
under Section 302 read with Section 149 and 120B of the Indian
Penal Code as well as under Section 27 of the Arms Act. For the
offence punishable under Section 302 read with Section 149 of
the IPC, each of them is sentence of suffer imprisonment for life
apart from imposition of fine of Rs.1,000/- (One Thousand) and
default sentence of one month. Similar sentence is awarded to
them for the offence punishable under Section 120B of the IPC.
For the offence punishable under Section 27 of the Arms Act,
they all are sentenced to suffer rigorous imprisonment for one
year apart from imposition of fine of Rs.1,000/- (One Thousand)
and default sentence of simple imprisonment for one month.
These appellants along with acquitted accused No.8, Mukesh
Choudhary had faced the subject trial during pendency of which
another charge sheeted accused Balram Choudhary absconded
and his trial was accordingly separated by the learned Trial
Court. One more accused in the subject crime, namely, Tuntun
Choudhary @ Chhotu Sukla is still facing trial for the subject
crime. By these appeals, appellant/accused Nos.1 to 7 are
challenging the said judgment and order dated 05.05.2014 and
07.05.2014 respectively, passed by the learned 3rd Additional
Sessions Judge, Begusarai in Sessions Trial No.461 of
2012/0005799 of 2013 by which they have been convicted and
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
sentence as indicated above. As these appeals are arising out of
the same trial and same judgment and order of conviction, these
appeals are being decided by this common judgment.
2. Facts leading to the prosecution of the
appellants who shall be referred to in their original capacity for
the sake of convenience, projected from the police report are
thus:
(A) PW 4 Manju Devi (the First Informant)
along with her husband Ramashrey Choudhary (since deceased)
as well as her two sons Binod Choudhary (PW 2), Awadh
Choudhary (P.W.3) and daughter in law Bina Devi (P.W.1) used
to reside in their house at village Akbarpur, Nayatola Dhanha
falling under jurisdiction of Police Station Samho, District
Begusarai. Accused persons were also resident of the same
village. Subodh Choudhary - son of First Informant, Manju
Devi and Ramashrey Choudhary (since deceased) was earlier
murdered by accused persons and in that crime absconding
accused Balram Choudhary was undergoing pre-trial detention.
For getting said Balram Choudhary bailed out in the offence of
commission of murder of Subodh Choudhary, the members of
prosecuting party were being pressurized to withdraw the said
prosecution. However, as members of the prosecuting party
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
were not acceding to the said direction of the accused persons,
absconding accused Balram Choudhary, who at the relevant
time was in jail had conspired with acquitted accused No.8
Mukesh Choudhary as well as other accused persons and by
hatching the conspiracy, Ramashrey Choudhary was done to
death in the following manner at his house at about 7:00 to 7:30
P.M. of 08.05.2011 by the accused persons as well as
absconding accused Balram Choudhary, deceased accused
Chandrashekhar Choudhary and the accused who is still facing
trial, namely, Tuntun Choudhary @ Chhotu Sukla.
(B) Deceased Ramashrey Choudhary along with
his wife Manju Devi (P.W.4), his sons Binod Choudhary
(P.W.2), Awadh Choudhary (P.W.3) and daughter-in-law Bina
Devi (P.W.1) were sitting in the courtyard of their house in the
evening hours of 08.05.2011. The lantern was burning in that
courtyard.
(C) At about 7:00 to 7:30 P.M. of that day i.e.,
08.05.2011 all the accused persons and others came at the
'Aangan' of the house of the prosecuting party. They were
armed with rifles and guns. Upon seeing them, P.W.2 Binod
Choudhary and P.W.3 Awadh Kishore Choudhary managed to
hide themselves behind the gunny bags kept in front of the wall
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
of the house. The accused persons and others started questioning
P.W.4 Manju Devi as to whereabouts of her sons as well as her
husband. P.W.4, Manju Devi and her daughter-in-law P.W.1
Bina Devi then retorted by saying that Subodh Kumar has
already been killed by them.
(D) Deceased accused Chandrashekhar
Choudhary then exhorted to kill Ramashrey Choudhary who
was sitting at the western side of Darwaja. In order to carry out
that order, accused persons encircled Ramashrey Choudhary and
under orders of deceased accused Chandrashekhar Choudhary,
Tuntun Choudhary @ Chhotu Sukla fired a bullet at the chest of
Ramashrey Choudhary. Appellant accused No.3 Sambhu
Choudhary then fired another bullet at Ramashrey Choudhary.
Upon being hit by the bullets, Ramashrey Choudhary fell down
with bleeding injuries on his person and died instantaneously.
Thereafter, all accused persons while firing bullets ran away
from the spot of the incident.
(E) P.W.6 Karu Yadav, Police Station Officer of
Police Station Samho received information regarding murder of
a person at village Dhanah and accordingly he rushed at the
village. He met P.W.4 Manju Devi at her Darwaja at about 8:00
P.M. of 08.05.2011 and recorded her first information report
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
which was also signed as witnesses by her sons P.W.2 Binod and
P.W.3 Awadh Choudhary. By going back to the Police Station,
P.W.6 Karu Yadav, PSI has registered offence vide Crime No. 21
of 2011 by drawing formal FIR. He took up investigation of the
subject crime. P.W.6 Karu Yadav, PSI then inspected dead body
of Ramashrey Choudhary and prepared inquest report Exhibit-6.
He seized empty cartridges vide seizure memo Exhibit-7. The
dead body was sent for autopsy and P.W.5 Dr. Ramesh Prasad,
Medical Officer of the Sadar Hospital, Begusarai, conducted
post mortem examination on the said dead body of Ramashrey
Choudhary on 09.05.2011 and recorded the report of post
mortem examination (Exhibit-3).
(F) Routine investigation followed. Statement of
witnesses came to be recorded. On completion of investigation,
the appellant/accused along with absconding accused Balram
Choudhary and acquitted accused Mukesh Choudhary came to
be charge sheeted. During the course of investigation, accused
Chandrashekhar Choudhary died. As stated above, Tuntun
Choudhary @ Chhotu Sukla is being tried vide separate sessions
case.
3. The learned Trial Court was pleased to frame
the charge and the same was read over and explained to the
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
accused persons. They pleaded not guilty and claim trial.
4. In order to bring home the guilt to the accused
persons, the prosecution has examined in all six witnesses. Bina
Devi - daughter-in-law of deceased Ramashrey Choudhary is
examined as P.W.1. Binod Choudhary and Awadh Kishore
Choudhary, who are sons of the deceased, are examined as
P.W.2 and P.W.3. P.W.4 Manju Devi is the widow of the
deceased and the First Informant of this case. Autopsy surgeon,
Dr. Ramesh Prasad is examined as P.W.5. Investigating Officer,
Karu Yadav, PSI is examined as P.W.6. Defense of the accused
persons as gathered from the line of cross-examination of
prosecution witnesses as well as from their statement under
Section 313 of the Cr.P.C. is that of total denial. However, they
did not enter in the defence.
5. After hearing the parties, the learned Trial
Court was pleased to convict the appellant/accused and to
sentence them as indicated in the opening para of this judgment.
6. We heard the learned counsel appearing for
appellants/convicted accused at sufficient length of time.
Following submissions are made by the learned counsel
appearing for the appellants/convicted accused.
(i) Evidence of the prosecution is discrepant so
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
far as the spot of the incident is concerned. Investigating
Officer, Karu Yadav (P.W.6) has stated that the incident took
place at Sahan (vacant land) of the house of the prosecuting
party where the dead body was found. He has stated that at that
spot, there were pegs for tying animals and pot of fodder.
However, evidence of prosecution witnesses who happens to be
relatives of the deceased is to the effect that the incident took
place at the Darwaja and some of them have spoken about the
spot of the incident as Dalan of the house. Thus, the prosecution
has failed to prove the spot of the incident when the place of
occurrence itself has not been established then the entire
prosecution case becomes suspect and the accused becomes
entitle for acquittal. To buttress these submissions, reliance is
placed on the following judgments.
(I) Ganesh Datt vs. State of Uttarakhand reported in
AIR 2014 SC 2521.
(II) Balwan Singh vs. State of Haryana reported in
(2005) 11 SCC 245.
(III) Syed Ibrahim vs. State of Andhra Pradesh
reported in 2006 CRI. L. J. 4087.
(IV) Pohlu vs. State of Haryana 2006 reported in
CRI. L.J. 532.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
(V) Cr. Appeal (DB) Nos.433 and 492 of 1990, Ram
Singhashan Singh and Others vs. State of Bihar decided by
the Division Bench of Patna High Court on 13.08.2012.
(ii) The prosecution has failed to establish that
there was sufficient source of light on the spot of the incident at
the time of the incident. The accused persons allegedly entered
in the 'Aangan' of the house all of a sudden. The prosecution
has averred that P.W.2, Binod an P.W.3, Awadh managed to hide
themselves and this fact indicate that there was no source of
light on the spot of the incident. Therefore, it was not possible
for the prosecution witnesses to identify the accused persons.
(iii) Though, it is averred that the FIR was
registered on 08.05.2011, it had reached the Court on
16.05.2011 and, therefore, in every probability the FIR was
antedated.
(iv) The incident took place in the village and in
spite of this fact not a single independent witness is forth
coming. This fact makes the prosecution case doubtful.
(v) First version of the incident is suppressed by
the prosecution as cross-examination of P.W.1, Bina Devi shows
that, in fact, she had lodged the FIR by making first statement
to police in respect of commission of cognizable offence and her
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
thumb impression was also obtained on that statement. Even
P.W.4 Manju Devi has admitted the fact of investigation by
police in respect of the incident from P.W.1 Bina Devi. This first
version of the incident is not forth coming. Evidence of the
prosecution is contradictory even in respect of seizure of empty
cartridges. P.W.1 Bina Devi has deposed that those empties were
taken in the night by police, however, the seizure list shows that
those were seized on the next day of the incident i.e., on
09.05.2011. To buttress this submission regarding suppression
of the first version of the incident, reliance is placed on
following judgment :
(I) Kanhai Mishra vs. State of Bihar reported
in (2001) 3 SCC 451.
(II) Nallabothu Ramulu vs. State of Andhra
Pradesh reported in (2014) 12 SCC 261.
(III) State of Madhya Pradesh vs. Ratan Singh
and Others reported in (2020) 12 SCC 630.
(vi) P.W.2, Binod and P.W.3, Awadh Kishore
cannot be an eyewitness of the incident as they themselves have
claimed that they hide themselves as soon as the accused
persons entered in the courtyard. Similarly, report of post
mortem examination coupled with evidence of the autopsy
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
surgeon shows that the deceased must be at the lower side when
bullets were fired on him.
(vii) The prosecution has failed to establish that
the accused persons were members of the unlawful assembly,
the common object of which was to commit murder of
Ramashrey Choudhary. Therefore, they cannot be made
vicariously liable in the case in hand. To buttress this
submission, reliance is placed on:
(I) Amerika Rai and others vs. State of Bihar
reported in (2011) 4 SCC 677.
(II) Nagarjit Ahir vs. State of Bihar reported
in AIR 2005 SC 722.
(III) Shiva Shankar Pandey and Others vs.
State of Bihar reported in AIR 2002 SC 3151.
(IV) Khairuddin and Others vs. State of West
Bengal reported in AIR 2013 SC 2354.
(V) Pandurang Chandrakant Mhatre vs. State
of Maharashtra reported in (2009) 10 SCC 773.
(VI) Parshuram Pandey and Others vs. State
of Bihar reported in AIR 2004 SC 5068.
(VII) Kuldip Yadav and Others vs. State of
Bihar reported in (2011) 5 SCC 324.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
(viii) It is faintly argued that there is no proper
examination of the accused persons under Section 313 of the
Cr.P.C. by placing reliance on Anand Ramchandra Chougule
vs. State (2019) 8 SCC 50 and judgment in Cr. Appeal (DB)
No. 393 of 2014, Bhim Yadav vs. State of Bihar, decided on
09.09.2022.
7. The learned Additional Public Prosecutor
supported the impugned judgment by arguing that evidence of
the investigating officer shows that the incident took place at the
door of house of the deceased and the dead body was also found
at the door of the house of the deceased. It is argued that
evidence of the prosecution is consistent and, therefore, the
appeals deserves to be dismissed.
8. We have considered the submissions so
advanced and we have also perused the records and
proceedings. We have gone through the oral as well as
documentary evidence and we have carefully perused the
judgments cited by the learned counsel for the appellants.
9. According to the prosecution case, the accused
persons after hatching the conspiracy and by forming an
unlawful assembly with common object, had committed murder
of Ramashrey Choudhary on 08.05.2011 at his house. Therefore,
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
it is necessary to ascertain whether the prosecution has
established the fact that Ramashrey Choudhary died homicidal
death on 08.05.2011. The factum of death of Ramashrey
Choudhary is not disputed by the defence. There is clear, cogent
and consistent evidence of his wife PW 4 Manju Devi, his
daughter-in-law PW 1 Bina Devi and his sons PW 2 Vinod
Choudhary and PW 3 Awadh Kishore Choudhary to the effect
that Ramashrey Choudhary died on 08.05.2011 and this
evidence remained unchallenged. Evidence of PW 6 Karu
Yadav, Police Station Officer of Samho Police Station, shows
that by visiting the spot of the incident he had conducted inquest
punchnama which is at Exhibit-6. The inquest punchnama
shows that dead body of Ramashrey Chodhary was having fire
arm injuries on the chest and other parts of his body. Autopsy of
dead body of Ramashrey Choudhary was conducted by PW 5
Dr. Ramesh Prasad, Medical Officer of the Sadar Hospital
Begusarai and his version is to the effect that Ramashrey
Choudhary died because of Cardio Respiratory failure caused by
shock and haemorrhage from laceration of left lung and heart.
This medical witness has deposed that he found inlet wound on
left interior and upper part of chest cavity deep with blackening
of margin, of size 3" X 1.5". This autopsy surgeon found
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
another inlet wound on right iliac bone of size 2" X 1" into
bone deep with blackening of margin. He noticed exit wound
on left back and lower part of the chest lateral to vertebra.
Another exit wound noted on the dead body was on posterior
upper part of left thigh of size 2" X 1". Apart from this there
were multiple pallets on right region of pelvis and upper left
thigh. There is nothing in cross examination of this witness to
doubt his version. This medical evidence coupled with ocular
evidence of relatives of the deceased goes to show that the
prosecution has proved that deceased Ramashrey Choudhary
died homicidal death on 08.05.2011.
10. Now let us examine whether the accused
persons or any of them, by forming an unlawful assembly after
hatching a criminal conspiracy had committed murder of
deceased Ramashrey Choudhary. To establish this fact, the
prosecution is relying on evidence of inmates of house of the
deceased who are certainly natural witnesses to the incident of
murder of Ramashrey Choudhary, which took place in his
house. The defence is seriously contending that the spot of the
incident is not proved by the prosecution and when the place of
occurrence is not established then the accused persons become
entitled for acquittal. Let us therefore examine evidence of each
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
and every prosecution witness who was inmate of the house
where the incident took place, giving special attention to their
version about details of the house in question as well as the
place in the house where Ramashrey Choudhary was done to
death.
11. The criminal law was set in motion by first
informant Manju Devi, widow of deceased Ramashrey
Choudhary by lodging the FIR Exhibit-4. She is examined as
PW 4 by the prosecution. As per her version at about 7:15 pm of
08.05.2011 she along with her daughter-in-law PW 1 Bina Devi
and her sons PW 2 Binod and PW 3 Awadh Kishore were at the
Aangan of their house. At that time Tuntun Choudhary (the
accused who is facing trial separately) along with other accused
persons came in her Aangan. She has categorically named all
appellants as persons who had entered in her house and stated
that her son managed to hide themselves on arrival of the
accused. Thereafter, as deposed by PW 4 Manju Devi, Chandra
Shekhar Choudhary (accused who died during investigation)
questioned her as to where are her sons and threatened that if the
case is not withdrawn then the entire family shall be murdered.
She further testified that then Tuntun Choudhary fired a bullet at
the left side of the chest and appellant-accused No. 3 Shambhu
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
Choudhary fired a bullet on right side below west of her
husband Ramashrey Choudhary. Then all the accused persons
ran away. She further stated that thereafter police came, she
gave her statement to police and put her thumb impression on
that statement and then her sons signed on that statement.
Though PW 4 Manju Devi, in her chief
examination, has not stated bout the exact spot at the house
where her husband was killed, in cross examination she has
stated that bullets were fired at her husband at the Darwaja of
the house and she was just four steps away when the bullets
were fired at her husband. It is elicited from her cross-
examination that she was following the accused and was just
one step behind them when her husband was fired. In cross-
examination she reiterated that only two persons fired bullets at
her husband and dead body of her husband was then lying two
to three cubits away from the thatched house. She further stated
in her cross-examination that police inquired firstly from her
daughter-in-law and statement of her daughter-in-law came to
be recorded. So far as description of her house is concerned, in
cross-examination PW 4 Manju Devi has stated that Aangan of
her house is of size 8 X 8 cubits and the Dalan of the hosue is
made up of dried grass.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
12. It is thus clear from evidence of PW 4 Manju
Devi who was natural witness to the incident of killing of her
husband at her house that Tuntun Choudhary and appellant-
accused No. 3 Shambhu Choudhary had fired bullets at her
husband Ramashrey at the Darwaja of her house and then dead
body of her husband was lying two to three cubits away from
the thatched house. Her version undoubtedly shows that her
house was a small house having Aangan of just eight by eight
cubits and in front of Darwaja, the Dalan was there which was
made up of dried grass. Though in cross-examination of this
prosecution witness there was no attempt to bring on record
what is Dalan, it is a matter of common knowledge that the
Dalan is a place just outside the Darwaja of the house for sitting
male members and outsiders. This widow has stated that after
firing bullets at him, dead body of her husband Ramashrey
Choudhary was lying two to three cubits away from her
thatched house. This implies that her husband collapsed in the
front portion of the Darwaja after being hit by the bullets.
13. We can get exact description of house of the
prosecuting party from version of PW 1 Bina Devi who happens
to be daughter-in-law of the deceased and an eyewitness to the
incident. So far as incident is concerned, PW 1 Bina Devi has
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
deposed that at about 7:00 pm of 08.05.2011 she along with her
mother-in-law PW 4 Manju Devi and Brothers-in-law PW 2
Binod and PW 3 Awadh Kishore were present in the Aangan of
her house. All appellants-accused persons with Tuntun
Choudhary came there with rifles and guns. Her brothers-in-law
managed to hide themselves. At that time her father-in-law
Ramashrey Choudhary was sitting at the Dalan. The accused
persons questioned him as to whether he will withdraw the case
or not. Thereafter deceased accused Chandra Shekhar
Choudhary ordered and Tuntun Choudhary fired first bullet at
Ramashrey Choudhary. Thereupon, as stated by PW 1 Bina
Devi, appellant-accused No. 3 Shambhu Choudhary fired
second bullet at Ramashrey Choudhary and all accused persons
ran away.
14. PW 1 Bina Devi was subjected to searching
cross-examination on behalf of all accused persons. In her cross-
examination it is brought on record that Ramashrey Choudhary
was sitting at Darwaja and the distance between Aangan and
Darwaja is just 1 cubit. In between Aangan and Darwaja of the
house there was bamboo matting. She further disclosed in her
cross-examination that area at the Darwaja of her house was
small to accommodate only 4 to 5 persons and when her father-
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
in-law Ramashrey Choudhary was at Darwaja, the accused
persons reached there and fired bullets at him. This material
elicited from cross-examination of PW 1 Bina Devi makes it
crystal clear that Darwaja area of the house and Dalan is
virtually the same place as front area of Darwaja of the house is
used for sitting by the visitors as well as the male members of
the house and in the case in hand, the house was so small that
Darwaja and Dalan was virtually the same and that is why PW 1
Bina Devi in her chief examination has stated that her father-in-
law was sitting at Dalan whereas in cross-examination she
described the place of sitting of her father-in-law as Darwaja. To
make the matter more clear, further cross-examination of PW 1
Bina Devi is relevant. She has stated that her house is facing
eastern direction and it is made up of dried grass and straws. In
other words, she described her house as a thatched house. Spot
of occurrence is clarified from the material brought on record
from cross-examination of PW 4 Manju Devi whereat she has
stated that after sustaining bullet wounds at the Darwaja of her
house, the dead body of her husband Ramashrey Choudhary was
lying 2 to 3 cubits away from the thatched house. PW 1 Bina
Devi clarified the structure of her house by stating that Aangan
of her house was surrounded by the bamboo matting and area of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
the Aangan was 10 to 8 cubits. She stated that the house is
comprising of two rooms made up of Pukka construction.
Darwaja area of her house as per version of this witness Bina
Devi is just to accommodate 4-5 persons and her father-in-law
was at Darwaja when the accused persons fired at him.
15. Thus, evidence of this witness makes it clear
that the house where the incident took place was so small that it
had Aangan of 8 to 10 by 8 to 10 cubits, Darwaja area large
enough only to accommodate 4 to 5 persons and two rooms.
This witness has made it clear that on exhortion of Chandra
Shekher, Tuntun Choudhary and appellant-accused No. 3
Shambhu Choudhary had fired bullets at deceased Ramashrey
Choudhary at the Darwaja area of the house. In cross-
examination this witness has stated that there was no fodder pot
or pegs for tying animals on east and west side of the house.
Nothing further is elicited on this aspect. So far as lodgment of
the FIR is concerned, PW 1 Bina Devi has stated that her
statement was recorded on the spot of the incident and thereafter
statement of her brothers-in-law and mother-in-law came to be
recorded. She stated that she put her thumb impression on her
statement. As far as the question of identification of the accused
is concerned, her cross-examination reveals that though she is a
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
Pardanashi lady, she was knowing the accused persons by their
name as well as by their face. She as well as her mother-in-law
PW 4 Manju Devi had duly identified the accused persons while
they were in dock.
16. PW 2 Binod Choudhary - son of the
deceased has stated that at 7:00 pm of 08.05.2011 he along with
his mother PW 4 Manju Devi, another brother PW 3 Awadh
Kishore and PW 1 Bina Devi were present in the Aangan of
their house whereas his father Ramashrey Choudhary was at the
Darwaja of his house. He further testified that at that time
accused persons came with rifles and guns. He as well as PW 3
Awadh Kishore managed to hide themselves behind stakes of
gunny-bags kept in front of the wall. Lantern was burning at the
Aangan at that time. He further stated that deceased accused
Chandra Shekhar then asked his father as to why cases are not
being withdrawn and he would kill his father. This witness
testified that his father was sitting at the Dalan of dried grass.
Thereupon Tuntun Chodhary and appellant-accused No. 3
Shambhu Choudhary had fired bullets at his father and his father
died on the spot of the incident. This witness is a witness to the
inquest report (Exhibit-6) as well as seizure memo (Exhibit-7).
In cross-examination PW 2 Binod Choudhary has stated that
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
kerosene lamp was burning at his house and lantern was burning
at the Aangan of his house at the time of the incident. He was
hiding himself in between the stacks of gunny bags and the wall
of his house. There were no animals where her father was
sitting. This witness has also stated that Aangan of his house
was of size 8 to 10 cubits area.
17. It is worthwhile to note that even evidence of
PW 2 Binod Choudhary goes to show that the house in question
was a small house with small Aangan and a Dalan made up of a
dried grass at the Darwaja of the house. No attempts were made
in the cross-examination to show that the Dalan was at a far of
place from the Darwaja of the house. Considering the fact that
the house was having small Aangan and small area at Darwaja
which could accommodate only 4-5 persons. It can not be said
that the Dalan was not part of the Darwaja and it was situated at
some far of place. Half hearted cross-examinations on this
aspect is of no assistance to the defence on this aspect.
18. PW 4 Awadh Kishore Choudhary another son
of the deceased has stated that the incident took place at about
7:00 pm of 08.05.2011 when he along with PW 4 Manju, PW 2
Binod and PW 1 Bina Devi were at the Aangan of his house and
when his father Ramashrey Choudhary was at the Darwaja of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
his house. As testified by this witness, the accused persons came
there with weapons, they questioned his mother about
whereabouts of her husband and sons and by going to the
Darwaja they further questioned his father whether he will
withdraw the case or not. Then as per version of PW 3 Awadh
Kishore, Chandra Shekhar Choudhary gave an order to open fire
and the assailants fired bullets at his father Ramashrey
Choudhary. This witness is also a witness to the inquest notes
and seizure memo (Exhibit-7) by which empties were ceased by
the investigating officer.
19. In cross-examination of PW 3 Awadh
Kishore Choudhary it is brought on record that he was hiding
himself when he heard sounds of gunshot and then saw his
father dead. At that time, as per version in cross-examination of
this witness his mother PW 4 Manju Devi and his sister-in-law
PW 1 Bina Devi were in the Aangan himself. This witness has
not named the specific accused who had fired bullets at his
father because in all probability he was hiding himself when fire
was opened on his father. In that sense this witness can not be
termed as eyewitness to the actual moment of firing bullets at
his father by the accused persons but he had certainly noticed
accused persons coming in his house with arms and then heard
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
sound of gunshots after he had managed to conceal himself.
This witness has stated the size of his house as a house having
Aangan of 7 to 8 cubits surrounded by the stalk matting and
Darwaja having area of 10 X 10 cubits. He further clarified that
part of his house is Pukka whereas part of his house is having
Kacchha construction. He testified that his father was lying at
the Darwaza area of the house.
20. This is the evidence in respect of the incident
coming from the mouth of near and dear ones of the deceased
Ramashrey Choudhary. It is well settled that near and dear ones
of the deceased never spare a real culprit to rope in an innocent
person in an incident where life of their close relative is lost.
There can be possibility of implicating as many as persons in
such incident when the case is that of more than one accused but
as a matter of rule it can not be said that relatives are not
witnesses of truth. At the most, evidence of their relatives is
required to be scrutinized with care and caution in order to rule
out possibility of false implication of some of the accused when
the case is that of more than one accused persons. Analysis of
evidence of all these witnesses which we have done in foregoing
paras makes it clear that all these prosecution witnesses have
duly identified the accused persons as persons who had entered
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
in their house. They had attributed role of actual killing of
Ramashrey Choudhary only two assailants, namely, Tuntun
Choudhary and appellant-accused No. 3 Shambhu Choudhary.
As per their version, deceased accused Chandra Shekhar had
ordered to eliminate Ramashrey Choudhary. However, all these
prosecution witnesses, who are sons, wife and daughter-in-law
of the deceased, have not attributed any overt-act to any of the
other accused persons. Their version regarding the incident of
actual firing at deceased Ramashrey Choudhary by appellant-
accused Shambhu Choudhary remained unshaken during the
course of cross-examination.
21. Now let us examine the theory sought to be
propounded by the defence that the spot of the incident is not
established by the prosecution. For this purpose heavy reliance
is placed on evidence of PW 6 Karu Yadav, the Investigating
Officer. Undisputedly, this Investigating Officer has not drawn
the map of the place of occurrence. In his evidence he has stated
that he inspected the spot of the incident and continued to
depose further that Darwaja was situated in front of the house
of the deceased. He further deposed that on front side of the
Darwaja there was an open land (Sahan) and the deceased was
sitting at the western Darwaja. This Investigating Officer
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
further deposed that on the spot of incident there is lot of blood
and six empties. During cross-examination, PW 6 Karu Yadav
has reiterated that he inspected the spot. He further stated that
on vacant land (Sahan) of deceased Ramashrey Choudhary he
found fodder pot, Khuta (peg for tethering animal) and the dead
body was lying there. There was blood on the ground. With this
cross-examination it was sought to demonstrate by the learned
counsel for the appellants that some of the witnesses are stating
that the firing tookplace at Darwaja, some are stating that the
deceased was at the Dalan when he was fired at by the accused
persons. The Investigating Officer is stating that the dead body
was lying at the Sahan (Open land) and, therefore, the spot of
the incident in not proved.
22. We are not in agreement with these
submissions of the learned counsel for the appellants for the
reason that the house in question, where the incident took place,
as seen from the evidence of the inmates of the house was a
small house made up of pukka as well as kuchcha construction.
Two rooms were made up of kuchcha construction whereas
other portion was made up of dried grass. 'Aangan' area was
just 8 to 10 by 8 to 10 cubits and Darwaja area was so small as
to accommodate only four to five persons. The Dalan in
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
common parlance is space in front of the Darwaja where
outsiders visiting the house sit and considering the small area of
the house where the incident took place the Darwaja area and
the Dalan were the same place and it is not possible to
distinguish these two places separately. The material elicited
from cross-examination of the prosecution witnesses shows that
Dalan which was at the front portion of the Darwaja was made
of dried grass meaning thereby that the land at that place was an
open land. With half hearted cross-examination of prosecution
witnesses, we cannot accede to the submission of the learned
counsel for the appellants that Darwaja area is different and
Dalan area is totally different area so also Sahan is a different
area. In fact, all these terms were used to demonstrate the space
outside the Darwaja of the house and in this case the different
witnesses are naming this place by using different terms.
However, it conveys the same meaning, i.e., in front portion of
Darwaja of house of the deceased. The incident of firing is
proved to have taken place in the house of the deceased and
precisely in the front portion of the Darwaja of the house where
ultimately the dead body was found. The Investigating Officer
might have used the term as Sahan and other witnesses might
have used the term Dalan or Darwaja to describe the place of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
occurrence but the fact remains that in front of the Darwaja of
the small house, the dead body of Ramashrey Choudhary was
found lying. That apart ocular evidence of the eyewitnesses that
the deceased was fired at by using fire-arms by appellant-
accused Shambhu Choudhary is not shattered at all and as such
description of the place where actually the dead body was found
lying pales into insignificant.
23. Similar is the position in respect of the
finding of fodder pot and Khuta at the Sahan area of the small
house of the prosecuting party. Much capital is sought to be
made up of this version of PW 6 Karu Yadav, the Investigating
Officer to demonstrate that the place of occurrence is not
proved. For this purpose stray sentence in cross-examination of
PW 1 Bina Devi is sought to be made use of out of the context.
To some question of the defence she answered that they were
not tying cattles. She has also stated in cross-examination that
Bathan and Nad (fodder pot and pegs) were not on east west
side. These statements in cross-examination of PW 1 Bina Devi
cannot be used to mean that place of occurrence becomes
suspect. Nothing turns out by such meaningless cross-
examination of PW 1 Bina Devi coupled with version in cross-
examination of the Investigating Officers. Hence, we reject the
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
submission of the learned counsel for the appellants that place
of incident is not proved by the prosecution and, therefore, the
prosecution case becomes suspect. The Ruling so cited by the
learned counsel for the appellants are of no assistance because
they proceeded on their own facts.
24. Version of eyewitnesses which we have dealt
up in foregoing paragraph is fully corroborated by the version
of PW 5 Dr. Ramesh Prasad who had conducted autopsy on
dead body of Ramashrey Choudhary. During autopsy, two entry
wounds of bullets were found on the dead body apart from
corresponding exit wounds. Similarly, multiple pallet injuries
were found on dead body of Ramashrey Choudhary during the
course of post mortem examination. Thus, eyewitness account
given by the prosecution witnesses is gaining corroboration in
material particular from this medical evidence and we see no
reason to reject version of the inmates of the house where the
incident took place regarding the mode and manner in which the
deceased was done to death. Similarly finding of empties from
the spot which came to be seized by the Investigating Officer
PW 6 duly corroborates the version of eye witnesses.
25. The house where the incident took place was
a residential house, naturally having source of light in the
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
evening hours. Evidence of prosecution witnesses is showing
that lantern was burning at the 'Aangan' and kerosene lamp was
burning in the house. Therefore, it cannot be said that there was
no sufficient light on the spot of the incident in order to enable
the prosecution witnesses to see the assailants.
26. It is contended that first version of the
incident is suppressed by the prosecution because PW 1 Bina
Devi seems to be the First Informant of this case. PW 1 Bina
Devi is a rustic villager and she appeared in the witness box
after more than one and half years of the incident. Similar is the
case of PW 4 Manju Devi. They were not knowing the exact
meaning of first information report. The sequence of
interrogation stated by them cannot be given any overbearing
importance because ultimately congruous version of both these
witnesses is in tune with the prosecution case. Had PW 1 Bina
Devi given some another version of the incident prior to the FIR
of PW 4 Manju Devi then she would have deposed before the
court accordingly and not in tune with the prosecution case.
Moreover, no question was put up to PW 6 Karu Yadav, the
Investigating Officer who had recorded the first information
report of PW 4 Manju Devi on this aspect. Unless and until
relevant questions are put up to the Investigating Officer on this
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
aspect of lodgment of the FIR, it cannot be said that the first
version of the incident was communicated to the Investigator
by PW 1 Bina Devi and not by PW 4 Manju Devi. In this view
of the matter Rulings cited by the learned counsel for the
appellants has no application to the facts of the instant case.
27. With this it needs to conclude that the
prosecution has established the fact that the accused persons
including appellant-accused No.3 Shambhu Choudhary entered
in the house of deceased Ramashrey Choudhary and on
exhortion by deceased accused Chandra Shekhar Choudhary,
appellant-accused No.3 Shambhu Choudhary had fired a bullet
causing death of Ramashrey Choudhary. This incident took
place at Darwaja area of his house and his dead body was found
lying in front of Darwaja area of the house. Now let us examine
whether it is proved by the prosecution that the accused persons
formed an unlawful assembly with a common object of
committing murder of Ramashrey Choudhary and in that
process the deceased was done to death by firing bullets at him.
28. We have carefully perused the case laws cited
on this subject by the learned counsel for the appellants. We
propose to reproduce paragraph No.38 to 40 from the judgment
in the matter of Kuldip Yadav(Supra) which reads thus:
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
"38. In Allauddin Mian v.
State of Bihar [(1989) 3 SCC 5 : 1989
SCC (Cri) 490] this Court held: (SCC
pp. 16-17, para 8)
"8. ... Therefore, in order
to fasten vicarious responsibility on any
member of an unlawful assembly the
prosecution must prove that the act
constituting an offence was done in
prosecution of the common object of that
assembly or the act done is such as the
members of that assembly knew to be
likely to be committed in prosecution of
the common object of that assembly.
Under this section, therefore, every
member of an unlawful assembly renders
himself liable for the criminal act or acts
of any other member or members of that
assembly provided the same is/are done
in prosecution of the common object or
is/are such as every member of that
assembly knew to be likely to be
committed. This section creates a specific
offence and makes every member of the
unlawful assembly liable for the offence
or offences committed in the course of
the occurrence provided the same
was/were committed in prosecution of the
common object or was/were such as the
members of that assembly knew to be
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
likely to be committed. Since this section
imposes a constructive penal liability, it
must be strictly construed as it seeks to
punish members of an unlawful assembly
for the offence or offences committed by
their associate or associates in carrying
out the common object of the assembly.
What is important in each case is to find
out if the offence was committed to
accomplish the common object of the
assembly or was one which the members
knew to be likely to be committed. There
must be a nexus between the common
object and the offence committed and if it
is found that the same was committed to
accomplish the common object every
member of the assembly will become
liable for the same. Therefore, any
offence committed by a member of an
unlawful assembly in prosecution of any
one or more of the five objects mentioned
in Section 141 will render his
companions constituting the unlawful
assembly liable for that offence with the
aid of Section 149 IPC."
39. It is not the intention
of the legislature in enacting Section
149 to render every member of unlawful
assembly liable to punishment for every
offence committed by one or more of its
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
members. In order to attract Section
149, it must be shown that the
incriminating act was done to
accomplish the common object of
unlawful assembly and it must be within
the knowledge of other members as one
likely to be committed in prosecution of
the common object. If the members of
the assembly knew or were aware of the
likelihood of a particular offence being
committed in prosecution of the common
object, they would be liable for the same
under Section 149 IPC.
40. In Rajendra Shantaram Todankar v.
State of Maharashtra [(2003) 2 SCC
257 : 2003 SCC (Cri) 506] this Court
has once again explained Section 149
and held as under: (SCC pp. 263-64,
para 14)
"14. Section 149 of the
Penal Code provides that if an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object of that assembly, or such as the
members of that assembly knew to be
likely to be committed in prosecution of
that object, every person who at the time
of the committing of that offence, is a
member of the same assembly is guilty of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
that offence. The two clauses of Section
149 vary in degree of certainty. The first
clause contemplates the commission of
an offence by any member of an unlawful
assembly which can be held to have been
committed in prosecution of the common
object of the assembly. The second clause
embraces within its fold the commission
of an act which may not necessarily be
the common object of the assembly,
nevertheless, the members of the
assembly had knowledge of likelihood of
the commission of that offence in
prosecution of the common object. The
common object may be commission of
one offence while there may be likelihood
of the commission of yet another offence,
the knowledge whereof is capable of
being safely attributable to the members
of the unlawful assembly. In either case,
every member of the assembly would be
vicariously liable for the offence actually
committed by any other member of the
assembly. A mere possibility of the
commission of the offence would not
necessarily enable the court to draw an
inference that the likelihood of
commission of such offence was within
the knowledge of every member of the
unlawful assembly. It is difficult indeed,
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
though not impossible, to collect direct
evidence of such knowledge. An inference
may be drawn from circumstances such
as the background of the incident, the
motive, the nature of the assembly, the
nature of the arms carried by the
members of the assembly, their common
object and the behaviour of the members
soon before, at or after the actual
commission of the crime. Unless the
applicability of Section 149--either
clause--is attracted and the court is
convinced, on facts and in law, both, of
liability capable of being fastened
vicariously by reference to either clause
of Section 149 IPC, merely because a
criminal act was committed by a member
of the assembly every other member
thereof would not necessarily become
liable for such criminal act. The
inference as to likelihood of the
commission of the given criminal act
must be capable of being held to be
within the knowledge of another member
of the assembly who is sought to be held
vicariously liable for the said criminal
act."
29. At this juncture, it is necessary to put on
record the concept of vicarious liability as envisaged by Section
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
149 of the Indian Penal Code. It hardly needs to mention that
Section 149 IPC does not create separate offence. It creates a
constructive or vicarious liability for acts done in prosecution of
the common object of that assembly, by all members of
unlawful assembly. Vicarious liability envisaged by Section 149
of the IPC extends to rope in every member of such assembly
only when:-
a. the acts done in prosecution of the
common object of the unlawful
assembly and
b. such offences as the members of the
unlawful assembly knew to be likely to
be committed in prosecution of that
object of the unlawful assembly. The
word "knew" is indicative of a state of
mind at the time of commission of the
offence and cannot be interpreted to
mean "might have known".
Thus once the Court holds that certain accused
persons formed an unlawful assembly and an offence is
committed by any member of that assembly in prosecution of
common object of that assembly, or such, as the members or the
assembly knew to be likely to be committed in prosecution of
that object, every person who at the time of committing of that
offence was a member of the same assembly, is to be held guilty
of that offence. This is because everyone must be taken to have
intended the probable and natural result of the combination of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
the acts in which he joined. Thus Section 149 IPC makes every
member of an unlawful assembly at the time of committing of
the offence, guilty of that offence on establishing the criteria
stated above. If such conditions as stated above are fulfilled,
then if not open to the court to see as to who actually did the
offensive act. The court cannot then further require the
prosecution to prove which of the member of the unlawful
assembly did which of the offensive act. Every member of such
unlawful assembly then becomes responsible of the acts of
offence committed by another members, in prosecution of the
common object of such assembly. It needs to be kept in mind
that whether a member of such unlawful assembly was aware as
regards to likelihood of the commission of a particular offence
in prosecution of common object can be gathered from all
surrounding circumstances like nature of the assembly, arms
carried by it, behaviour of members of such assembly at or
before the occurrence etc.
30. Having said so, we must hasten to add that
the court is required to determine the issue in every case before
it as to 'whether the offence was committed by any member of
the unlawful assembly in prosecution of the common object or
whether an offence was such as the members of that assembly
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
knew to be likely to be committed.' The accused should not,
merely by reason of his association with other members of an
unlawful assembly be held vicariously liable for each and every
offence committed by his associates, which he himself neither
intended nor knew to be likely to be committed. Members of an
unlawful assembly may have community of object only upto a
certain point. Beyond that point they may differ in their
objects. In such fact situation, the knowledge possessed by each
member as to what offence is likely to be committed in
prosecution of their common object shall also vary. Whether a
member of an unlawful assembly was aware as regards
likelihood of commission of another offence or not would
depend upon facts and circumstances of each case such as
background of the incident, the motive, the nature of the
assembly, the nature of the arms carried by the members of the
assembly, their common object and behaviour of the members
soon before, at and after commission of the crime etc. A mere
possibility of the commission of the offence would not
necessarily enable the court to draw an inference that the
likelihood of commission of such offence was within the
knowledge of every member of an unlawful assembly. Mere
presence in an unlawful assembly cannot render a person liable
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
unless there was a common object and the accused was actuated
by that common object. The word object means the purpose or
design. In order to make it common it must be shared by all. It
does not require a prior concert and common meeting of minds
before the attack.
31. Viewed from this angle if we adverts to the
happening at the time of the incident which is proved from
evidence of prosecution witnesses, namely, PW 1 Bina Devi,
PW 2 Binod Choudhary, PW 3 Awadh Kishore Choudhary and
PW 4 Manju Devi then it becomes crystal clear that accused
persons accompanied by Tuntun Choudhary came to the house
of deceased Ramashrey Choudhary and on exhortion of Chandra
Shekhar Choudhary i.e., the deceased-accused, Tuntun
Choudhary and appellant-accused No. 3 Shambhu Choudhary
had fired bullets on Ramashrey Choudhary causing his death.
None of the prosecution witnesses is alleging any overt act on
the part of rest of the accused persons who are appellants before
us. True it is that once an accused is proved to be a member of
the unlawful assembly having a particular common object then
it is not required to prove overt act on his part but as a rule of
prudence behavior of that particular accused at the time of the
incident becomes relevant in order to ascertain whether he had
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
shared common object of the unlawful assembly. In the case in
hand, none of the prosecution witnesses has stated about any act
on the part of appellants before this Court except appellant-
accused No. 3 Shambhu Choudhary. Their mere presence on the
scene of occurrence is spoken by these prosecution witnesses
without attributing any misbehavior to them during the course
of the incident. For making out the case for imposition of
vicarious liability on rest of the appellants/accused persons it
was incumbent on the part of the prosecution to establish by
clear and cogent evidence that the offence of commission of
murder of Ramashrey Choudhary was committed to accomplish
common object of the unlawful assembly and all the appellants
before this Court including appellant/accused No.3 Shambhu
Choudhary were sharing that common object of the unlawful
assembly. In the case in hand, conduct attributed to these
appellants of mute spectator during the course of the incident
without even utterance of any word during the course of the
incident creates a doubt as to whether these appellants were
sharing common object of the unlawful assembly. Even no fire
arm came to be seized from the appellants during the course of
investigation and the active role of killing Ramashrey
Choudhary is attributed by eyewitnesses only to
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
appellant/accused No. 3 Shambhu Choudhary. As nothing is said
about conduct or utterances, any of other appellant/accused by
the prosecution witnesses, on complete consideration of entire
prosecution evidence, a serious doubt arises as to correctness of
the prosecution case that each of the appellant accompanying
Tuntun Choudhary and Shambhu Choudhary intended to kill or
to injure Ramashrey Choudhary or his sons. Therefore, it is
unsafe to resort to the principle of vicarious liability for
imposing penal liability regarding the subject crime on the
appellants/accused before this Court except appellant-accused
No. 3 Shambhu Choudhary. He is certainly liable individually
for the act of firing bullet at Ramashrey Choudhary causing the
death. However rest of the appellants/accused deserves benefit
of doubt in the instant case.
32. Though it is faintly argued by the learned
counsel for the appellants that provisions of Section 313 Cr.P.C.
are not complied in the instant case, we will have to deal with
such submission. It would be apposite to quote provision of
Section 313 Cr.P.C. for better understanding of the issue. It
reads thus:-
"313. Power to examine the accused.-
(1) In every inquiry or trial, for the purpose
of enabling the accused personally to
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
explain any circumstances appearing in the
evidence against him, the Court-
(a) may at any stage, without previously
warning the accused, put such questions to
him as the Court considers necessary;
(b) shall, after the witnesses for the
prosecution have been examined and before
he is called on for his defence, question
him generally on the case:
Provided that in a summons- case, where
the Court has dispensed with the personal
attendance of the accused, it may also
dispense with his examination under clause
(b).
(2) No oath shall be administered to the
accused when he is examined under sub-
section (1).
(3) The accused shall not render himself
liable to punishment by refusing to answer
such questions, or by giving false answers
to them.
(4) The answers given by the accused may
betaken into consideration in such inquiry
or trial, and put in evidence for or against
him in any other inquiry into, or trial for,
any other offence which such answers may
tend to show he has committed."
33. Legislative provision enshrined in Section 313 of
the Cr.P.C. is based on the principle of natural justice described
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
in maxim 'audi alteram partem'- meaning thereby that nobody
should be condemned unheard. Principle of fair trial requires
that all incriminating circumstances appearing against the
accused must be put to him in order to afford him an
opportunity of explaining those circumstance. The trial Court
is duty bound to question the accused on the evidences and
circumstances appearing against him in order to enable the
accused to understand the exact case which he is required to
meet and whether or not to adduce any evidence in his
defence. The material which is not put to the accused is
required to be eschewed from consideration. At this stage, we
may quote the law laid down by the Hon'ble Apex Court in
Sharad Birdhi Chand Sarda Vs. State of Maharashtra
(AIR 1984 SC 1662) wherein it is held thus:
"As these circumstances were
not put to the Appellants in their
statement under Section 313 of the Code
of Criminal Procedure they must be
completely excluded from consideration
because the Appellants did not have any
chance to explain them. This has been
consistently held by this Court as far
back as 1953, wherein the case of Hata
Singh Bhagat Vs. State of Madhya
Bharat MANU/SC/0073/1951; AIR 1953
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
SC 468 this Court held that any
circumstances in respect of which an
accused was not examined under
Section 342 of the Code of Criminal
Procedure cannot be used against him.
Ever since this decision there is a catena
of authorities of this Court uniformly
taking the view that unless the
circumstances appearing against an
accused is put to him in his examination
under Section 342 of Section 313 of the
Criminal Procedure Code, the same
cannot be used against him... It is not
necessary for us to multiply authorities
on this point as this question now stands
concluded by several decisions of this
Court in this view of the matter the
circumstances, which were not put to the
Appellant in his examination under
Section 313 of the Code of Criminal
Procedure have to be completely
excluded from consideration."
(Emphasis is supplied by me)
Even in the case of State of
Maharashtra Vs. Sukdeo Singh and
Another (AIR 1992 SC 2100), their
Lordship have observed as follows-
"The trial Judge is not
expected, before he examined the
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
accused under Section 313 of the Code,
to sift the evidence regarding any
incriminating material to determine
whether or not to examine the accused as
that material. To do so, would be to
prejudice the evidence without hearing
the prosecution under Section 314 of the
Code. Therefore, no matter how weak or
scanty prosecution evidence is in regard
to certain incriminating material, it is the
duty of the Court to examine the accused
and seek his explanation thereon."
34. Whenever material circumstances are not
put to the accused in order to enable him to explain the
incriminating evidence appearing against him, the following
course of action is available to the appellate Court:
(A). Whenever a plea of non-compliance of
Section 313 Code of Criminal Procedure is
raised, it is within the powers of the appellate
court to examine and further examine the
convict or the counsel appearing for the
accused and the said answers shall be taken into
consideration for deciding the matter. If the
accused is unable to offer the appellate Court
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
any reasonable explanation of such
circumstance, the Court may assume that the
accused has no acceptable explanation to offer.
(B). In the facts and circumstances of the case,
if the appellate Court comes to the condition
that no prejudice was caused or no failure of
justice was occasioned, the appellate Court can
hear and decide the matter upon merits.
(C). If the appellate Court is of the opinion that
non-compliance with the provisions of Section
313 of the Code of Criminal Procedure has
occasioned or is likely to have occasioned
prejudice to the accused, the appellate Court
may direct retrial from the stage of recording
the statements of the accused from the point
where the irregularity occurred, that is, from
the stage of questioning the accused under
Section 313 of the Code of Criminal Procedure
and the trial Judge can be directed to examine
the accused afresh and defence witness if any
and dispose of the matter afresh.
(D). The appellate Court may decline to remit
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
the matter to the Trial Court for retrial on account of long time
already spent in the trial of the case and the period of sentence
already undergone by the convict and in the facts and
circumstances of the case may decide the appeal on its own
merits, keeping in view the prejudice caused to the accused.
35. In the case in hand, it is not demonstrated by
the learned counsel for the appellants as to which of the
incriminating circumstances were not put up to the accused for
tendering their explanation. On the contrary it was put up to the
accused persons that at about 7:15 pm of 08.05.2011, they had
formed an unlawful assembly and in prosecution of the common
object of that assembly, Ramashrey Choudhary was done to
death by firing bullets at him in the 'Aangan' of his house at
village-Akbarpur Nayatola Dhanha. Further it is not pointed out
to us as to how the accused persons are prejudiced because of
their improper examination under Section 313 of the Cr.P.C. as
nothing is demonstrated to show prejudice caused to the accused
on this point. We are unable to accept the argument of the
learned counsel for the appellants that provisions of Section 313
of the Cr.P.C. were not complied by the learned trial Court
thereby entitling the appellant/accused for acquittal.
36. Now comes the question whether the accused
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
persons are liable for conviction and resultant sentence for
committing the offence of criminal conspiracy. It is case of the
prosecution that Subodh Choudhary - son of deceased
Ramashrey Choudhary was earlier murdered by accused persons
and in that crime, absconding accused Balram Choudhary was
under going pretrial detention. First enabling Balram Choudhary
to seek bail in that offence, members of the prosecuting party
were pressurized to withdraw that prosecution. On refusal to
accede that request, the appellants/accused persons along with
absconding accused Balram Choudhary and acquitted accused
No. 8 Mukesh Choudhary hatched conspiracy to kill Ramashrey
Choudhary and under that conspiracy Ramashrey Choudhary
was done to death.
37. It is settled principle of law that criminal
conspiracy is hatched to commit an illegal act which is an
offence punishable under law. It is not essential that the accused
person must do an overt act and mere agreement between two or
more persons to commit an illegal act is sufficient to constitute
the offence of criminal conspiracy. It is also not necessary that
the object of the conspiracy should have been achieved for it to
be considered as an offence. Even if the conspiracy fails on
account of abandonment or detection before commission of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
offence, the very act of entering into an agreement by the co-
conspirators is itself an offence and punishable under the law.
Undoubtedly, criminal conspiracies are hatched in secrecy and
can only be perceived by actions of the participants and the
same can be established on the basis of circumstances brought
on record.
38. Section 120A of the IPC defines the offence
of criminal conspiracy and it reads thus :
120A. Definition of criminal conspiracy -
When two or more persons agree to do, or cause
to be done -
(1)an illegal act, or
(2)an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy :
Provided that no agreement except an
agreement to commit an offence shall amount to
a criminal conspiracy unless some act besides
the agreement is done by one or more parties to
such agreement in pursuance thereof.
Explanation.--It is immaterial whether the
illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
Bare perusal of this definition of criminal
conspiracy makes it clear that if circumstances in a case when
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
taken together on their face value are indicating meeting of
minds between the conspirators for the intended object of
committing an illegal act or an act which is not illegal
committed by illegal means, then, the offence of criminal
conspiracy punishable under Section 120B of the IPC is made
out. In the matter of John Pandian vs. State reported in JT
2010(130) SC 284 the Hon'ble Apex Court has held that a few
bits here and a few bits there on which prosecution relies,
cannot be held to be adequate for connecting the accused with
the commission of the crime of criminal conspiracy. It is
necessary to quote observations of the Hon'ble Apex Court in
the matter of Keharsingh vs. State (Delhi Administration)
reported in AIR 1978 SC 1883. Ingredients of the offence of
criminal conspiracy are explained by the Apex Court in the
following manner in paragraphs 271 and 272 which read thus :
"271. It will be thus seen that the most
important ingredient of the offence of
conspiracy is the agreement between two or
more persons to do an illegal act. The illegal act
may or may not be done in pursuance of
agreement, but the very agreement is an offence
and is punishable. Reference to Ss. 120-A and
120-B, IPC would make these aspects clear
beyond doubt. Entering into an agreement by
two or more persons to do illegal act or legal act
by illegal means is the very quintessence of the
offence of conspiracy.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
272. Generally, a conspiracy is hatched in
secrecy and it may be difficult to adduce direct
evidence of the same. The prosecution will often
rely on evidence of acts of various parties to
infer that they were done in reference to their
common intention. The prosecution will also
more often rely upon circumstantial evidence.
The conspiracy can be undoubtedly proved by
such evidence direct or circumstantial. But the
Court must enquire whether the two persons are
independently pursuing the same end or they
have come together to the pursuit of the
unlawful object. The former does not render
them conspirators, but the latter does. It is,
however, essential that the offence of conspiracy
required some kind of physical manifestation of
agreement. The express agreement, however,
need not be proved. Nor actual meeting of two
persons is necessary. Nor it is necessary to
prove the actual words of communication. The
evidence as to transmission of thoughts sharing
the unlawful design may be sufficient. Gerald
Orchard of University of Canterbury, New
Zealand (Criminal Law Review 1974, 297 at
299) explains the limited nature of this
proposition :
"Although it is not in doubt that the offence
requires some physical manifestation of
agreement, it is important to note the limited
nature of this proposition. The law does not
require that the act of agreement take any
particular form and the fact of agreement
may be communicated by words or conduct.
Thus, it has been said that it is unnecessary to
prove that the parties "actually came together
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
and agreed in terms" to pursue the unlawful
object; there need never have been an express
verbal agreement, it being sufficient that
there was "a tacit understanding between
conspirators as to what should be done."
What constitutes an offence of criminal
conspiracy is further explained by the Hon'ble Apex Court in the
matter of State of Tamil Nadu Vs. Nalini reported in 1999 Cri.
L.J. 124 and the relevant observations read thus :-
"The unlawful agreement which amounts to a
conspiracy need not be formal or express, but
may be inherent in and inferred from the
circumstances, especially declarations, acts and
conduct of conspirators. The agreement need not
be entered into by all the parties to it at the same
time, but may be reached by successive action
evidencing their joining of conspiracy. It has
been said that a criminal conspiracy is a
partnership in crime and there is in each
conspiracy a joint or mutual agency for the
prosecution of a common plan. Thus, if two or
more persons enter into a conspiracy any act
done by any of them pursuant to the agreement is
in contemplation of law, the act of each of them
and they are jointly responsible therefor. This
means that everything said, written or done by
any of the conspirators in execution of
furtherance of the common purpose is deemed to
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
have been said, done or written by each of them.
And this joint responsibility extends not only to
what is done by any of the conspirators pursuant
to the original agreement but also to collateral
acts incidental to and growing out of the original
purpose."
In the matter of Nalini (supra), according to
prosecution case, the former Prime Minister Late Shri Rajiv
Gandhi was killed in a bomb blast as a result of conspiracy to
eliminate him. While allowing the appeal partly, the Hon'ble
Supreme Court has considered important points relating to
conspiracy which was allegedly hatched by accused persons. It
is apposite to cull out those points in order to appreciate as to
how the offence of criminal conspiracy can be made out.
(a) Association of accused with one of main
accused or even his knowledge about conspiracy
would not make him conspirator as agreement is
sine quo non of agreement.
(b) Accused harbouring main accused persons
knowing fully well their involvement in the
commission of offence is itself not sufficient to
infer that he was member of conspiracy.
(c) If accused had no knowledge of conspiracy
as per evidence produced then his mere
association with main conspirator would not make
him member of the conspiracy.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
(d) If main conspirator is looking after the
welfare of the accused who has lost his leg and
meeting his medical expenses, then in the absence
of any evidence to the contrary, that would not
import accused with the knowledge of conspiracy.
(e) Wireless message showed that only main
accused conspirators knew the object of
conspiracy. So if accused said that he had strong
suspicion that targetted person was Rajiv Gandhi,
but it would certainly not make him member of
conspiracy without something more.
(f) It is not necessary for the conspirator to be
present at the scene of crime. If evidence showed
that the accused was in thick of conspiracy then
his plea that he derived the knowledge of incident
after the explosion is not tenable specially when
he himself had purchased the battery which he
knew will be used for explosion of human bomb.
(g) Mere association with LTTE hard core
militant or the fact that those militants turned out
to be the persons responsible for the killing of
Rajiv Gandhi, would not make them member of
any conspiracy to kill the targetted person.
39. For suggesting even prima facie material to
infer criminal conspiracy, it is necessary for the prosecution to
point out as to how it was hatched. That can be inferred from
the circumstances specially declaration, acts and conduct of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
conspirators. Need of meeting of minds of conspirators for
doing illegal act is sine-quo-non. What is prima facie required
to show is the respondent/discharged accused was having object
to accomplish and hence a plan or scheme was framed by
accused persons including the respondent/discharged accused
for accomplishing that object and that there was agreement or
understanding between them for accomplishment of the object
by executing the same in the manner decided by them. At this
juncture, observations of the Hon'ble Apex Court in the matter
of State of Uttar Pradesh vs. Sanjay Singh reported in 1994
SSC (Supp) (2) 707 can be quoted with advantage. Paragraphs
18 and 20 of that judgment read thus :
"18. At the highest, the prosecution can
only suggest from the circumstances what is or
may be the motive for any particular act.
However, motive is not a sine qua non for
bringing the offence of murder or of any crime
home to the accused. At the same time the
absence of ascertainable motive comes to
nothing, if the crime is proved to have been
committed by a sane person but to make out a
case by proof of a motive alone that too
Suspicion of motive apparently tending towards
any possible crime, is not only a very
unsatisfactory but also a dangerous process,
because circumstances do not always lead to
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
particular and definite inferences and the
inferences themselves may sometimes be
erroneous.
20. This Court in Century Spinning &
Manufacturing Co. Ltd. v. State of Maharashtra
while examining the scope of Section 251(A)
sub-sections (2) and (3) of the old Code
corresponding to Sections 239 and 240 of the
new Code has made the following observation:
(SCC p. 291, para 17: AIR p. 552, para 16) "...
If on this material, the Court comes to the
conclusion that there is no ground for
presuming that the accused has committed an
offence, then it can appropriately consider the
charge to be groundless and discharge the
accused. The argument that the Court at the
stage of framing the charges has not to apply its
judicial mind for considering whether or not
there is a ground for presuming the commission
of the offence by the accused is not supportable
either on the State Of U. P vs Dr. Sanjay Singh
on 27 January, 1994 plain language of the
section or on its judicial interpretation or on
any other recognised principle of law. The order
framing the charges does substantially affect
the person's liberty and it is not possible to
countenance the view that the Court must
automatically frame the charge merely because
the prosecution authorities, by relying on the
documents referred to in Section 173, consider
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
it proper to institute the case. The responsibility
of framing the charges is that of the Court and
it has to judicially consider the question of
doing so. Without fully adverting to the material
on the record it must not blindly adopt the
decision of the prosecution."
40. In the case in hand, there is no iota of
evidence to infer that the appellants/accused persons hatched
conspiracy for committing murder of deceased Ramashrey
Choudhary. Therefore, we are not in a position to uphold
conviction of the appellants-accused persons for the offences
punishable under Section 120B of the Indian Penal Code.
41. Similarly except appellant/accused No.3
Shambhu Choudhary, the prosecution has not proved that rest
of the appellants/accused had used fire-arm in contravention of
provisions of Section 5 of the Arms Act during the course of
incident and, therefore, for want of evidence on this aspect
these appellants/accused persons are entitled for acquittal on
that count.
42. In view of foregoing discussion we proceed
to pass the following order:-
I. Cr. Appeal (DB) No.494 of 2014 of
appellant/accused No. 3 Shambhu Choudhary is partly allowed.
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
His conviction for the offence punishable under Section 302
read with Section 149 of the Indian Penal Code as well as
Section 120B of the Indian Penal Code is quashed and set aside.
Instead he is convicted for the offence punishable under Section
302 of the Indian Penal Code and is sentenced to suffer
imprisonment for life apart from imposition of fine of
Rs.1,000/- (one thousand) and in default he is directed to
undergo simple imprisonment for one month. His conviction
and resultant sentence for the offence punishable under Section
27 of the Arms Act is maintained.
II. Cr. Appeals (DB) bearing Nos. 418 of 2014
and 442 of 2014 of appellant/accused No.1 Jai Kishore
Choudhary, appellant/accused No.6 Ram Pravesh Choudhary,
appellant/accused No.4 Sudhir Choudhary, appellant/accused
No.5 Sunil Choudhary, appellant/accused No.2 Kaushal
Choudhary and appellant/accused No.7 Upendra Choudhary @
Mahanth are allowed. The impugned judgment and order of
their conviction and resultant sentence is quashed and set aside.
They are acquitted of offences punishable under Section 302
read with Section 149 of the Indian Penal Code and Section
120B of the Indian Penal Code as well as under Section 27 of
the Arms Act. The bailors are discharged from the liabilities of
Patna High Court CR. APP (DB) No.494 of 2014 dt.23-12-2022
their bail bonds.
43. 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)
( Alok Kumar Pandey, J)
Mkr/Aditi/-
AFR/NAFR AFR
CAV DATE 29.11.2022
Uploading Date 23.12.2022
Transmission Date 23.12.2022
