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PETITIONER:

DUKHMOCHAN PANDEY & ORS., SHAMSUL MIAN & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 25/09/1997

BENCH:

G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

WITH

CRIMINAL APPEAL NO. 198 OF 1982

IN THE MATTER OF ;

J U D G M E N T

PATTANAIK. J.

Both these appeals arise out of one sessions trial,

Sessions Trial No. 125 of 1975 which was disposed of by the

learned Additional Sessions Judge, Darbhanga on 30th March,

1978. By the said judgment the accused persons were

convicted under Section 302/149 and were sentenced to

imprisonment for life. Twenty seven of the accused persons

were convicted under Section 147 but no separate sentence

was awarded. Rest of the accused persons were convicted

under Section 147 but no separate sentence was awarded. Rest

of the accused persons were convicted under Section 148 IPC

but no separate sentence was awarded. Accused Dukhmochan

pandey, Sarbnarain Mishra, Upendra Pandey, Sanjam Pandey,

Jainandan Mishra, Kapileshwar Mandal, Bhuvneshwar Mandal,

Janak Das, Uttam Pandey, Tapeshwar Pandey, kameshwar Pandey

and Jiwachh Mishra were convicted under Section 302/34 and

were sentenced to imprisonment for life. Then accused

dukhmochan Pandey, Srabarnarain Mishra, Nawal Kishore

Pandey, Shiv Thakur, Jogendra Narain Pandey, Mahendra Narain

Pandey, Shiv Shekhar Pandey, Saukhilal Yadav, Amirilal

Yadav, Sukhram Mishra, Jainandan Mishra, Bamchandra pandey

and Ramchandra Sharma were convicted under Section 302/34

and were sentenced to undergo rigorous imprisonment for

life. In other words while all the accused persons were

convicted under Section 302/149, they were also convicted in

two groups under section 302/34, one group for causing

murder of Razaullah and the other group for causing the

murder of Ahmad Shah. After accused Jiwachh Mishra was

convicted under Section 324 and were sentenced to undergo

imprisonment for 2 years and accused Upendra Pandey, Sanjam

pandey, kapileshwar Mandal, Jogeshwar Mandal, Aghanoo Mandal

and Janak Das were undergo imprisonment for one year. In all

there were 47 accused persons. On appeal, the Division Bench

of the Patna High Court by Judgment dated 11th of December,

1981 acquitted the accused persons of the charge under

Section 302/149 passed by the learned Additional Sessions

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Judge and sentence passed thereunder was upheld. The

conviction of different accused persons under Sections 148

was upheld and sentence for three years in respect of the

same accused persons was awarded.. The conviction of 27

accused persons was awarded. The conviction of 27 accused

persons under Section 147 was upheld and sentence of

imprisonment for two years was awarded by the High Court.

Similarly, the conviction of the accused persons under

Section 447 as well as under Sections 323 IPC of the

different accused persons was upheld but the High Court did

not pass any separate sentence under these heads. Those

accused persons whose conviction had been have preferred

Criminal Appeal No. 197 of 1982 are those whose conviction

under Section 147 has been upheld by the High Court.

Prosecution case in nutshell is that a dispute arose

when informant Kapileshwar Pandey sent labourers to his

field for transplanting paddy seeds. On 25.7.1974 during

morning hours while labourers of Kapileshwar Pandey

numbering about 20 were transplanting paddy seeds on the

field and asked the labourers to stop their work.

Kapileshwar Pandey, PW-18 objected to such high handed

action of the mob whereupon accused Uttam Pandey and Upendra

Pandey directed the mob to kill the labourers. Soon

thereafter accused Dukhmochan Pandey and Sarbnarain Mishra

fired from their respective guns as a result of which

Razaullah and Ahmed Shah, who were on the field fell down.

The informant PW-18 being terribly frigtened ran away to the

nearby Janera field and took shelter keeping himself out of

the sight of the assailants. He could see the various

attacks of different attacks of different accused persons on

the laborers who were on the field. While indiscriminating

assault on the laborers was going on somebody cried out that

Magistrate with the police has arrived . The accused persons

hearing such call ran from the place of occurrence. PW-18

who had taken shelter in the nearby janera field then came

out and went upon the field where he found two deceased

lying injured. Immediately after PW-18'S arrival on the

field PWs the magistrate and the armed forces. The informant

PW- 18 wrote a detailed account of the incident and gave the

same to the magistrate, PW-25. It may be stated here that on

account of some armed forces were camping in the village but

on the relevant date of occurrence they were not at the

place of occurrence but arrived there soon after coming to

know of the incident. PW-6, the village Chowkidar being

aware of the tension on the field reported the same to the

Hawaldar PW-21 and PW-21 directed the chowkidar to inform at

the police station. Pursuant to the aforesaid direction, PW-

6 at arrived at the police station at about 11.30 a.m. and

gave a report to the officer in-charge, PW--24 who made a

station dirary entry No. 458. The said PW-24 after making

the station diary entry left for the village and reached the

place of occurance at 3 p.m. It is at that point of time the

written report given by PW-18 to the magistrate was handed

over to him which was treated as the First Information

Report and thereafter he took up the investigation. He made

the inquest over the two dead bodies and then sent the dead

bodies for post mortem examination. In course of

investigation he had also made some seizure, but later on

under the order of the supervising authority, PW-26 took

over the investigation from him and said PW-26 after

completion of investigation submitted the charge-sheet. The

accused persons were committed to the Court of Sessions and

stood their trial. The defence put forward by the accused

persons was one of denial. The prosecution examined 32

witnesses in all of whom PWs 8,9,11,14 and 15 were injured

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in course of the occurrence. PWs 7,9 and 10 are the seizure

witnesses. PW-19 is the Deputy Collector who had been

deputed to watch post-mortem conducted on the deceased. PW-

32 is the doctor who conducted the post-mortem examination.

PW-22 established the fact that under the order of the

supervising authority investigation was transferred from PW-

24 to PW-26. PW-25 is the magistrate and PWs- 27,28 and 29

are the members of the armed force who were in the village

camping. The learned Sessions Judge on a through scrutiny of

the prosecution evidence came to hold that the prosecution

has been able to prove the charges against the accused

persons beyond reasonable doubt. On appeal, the high Court

re appreciated the entire evidence on record. On such re-

appreciation the High Court came to the conclusion that PW-

18 was there at the scene of occurrence and had come to the

field being accompanied by Razaullah. Looking to the F.I.R.

which was stated to have been written on the scene of

occurrence and was later handed over to the investigating

officer, the High Court came to the conclusion that the

prosecution story that F.I.R. was written on the place of

occurrence itself is obviously incorrect. But merely on that

score the High Court did not agree with the submission of

the accused persons that the entire case is a concocted one.

Thereupon, the court scrutinized the evidence of the eye-

witnesses and ultimately came to hold that prosecution case

as unfolded through those witnesses implicating the accused

persons in the commission of two murders must be held to

have been established beyond reasonable doubt. In coming to

the aforesaid conclusion apart from holding that the occular

statement of the eye-witnesses corroborates each other,

court also came to the conclusion that the medical evidence

corroborates the prosecution case. An argument advanced on

behalf of the accused persons that the prosecution party was

the aggressor and came upon the field to dispossess one of

the accused persons Sanjam Pandey was rejected by the High

Court. According to the High Court a well organized mob

fully armed with various weapons indulged in several attacks

including gun shots which ultimately resulted in the death

of two persons and several other members of the prosecution

party were injured. The High Court, however, on scrutiny of

the evidence on record came to hold that the object of the

unlawful assembly being to stop the laborers from

transplanting paddy seeds on the field in question, the

conviction under Section 302/149 cannot be upheld and

accordingly the said conviction and sentence passed

thereunder was set aside. But as stated earlier the

conviction on other counts was maintained.

Mr. U.R. Lalit, the learned senior counsel appearing

for the appellants in Criminal Appeal No. 197 of 1982

contended that the star witness of the prosecution is

Kapileshwar Pandey, PW-18 and his evidence is unbelievable

and shaky and could not be relied upon. So far as the other

eye-witnesses are concerned according to Mr. lalit they have

merely repeated the incident in a parrot like manner and the

very fact that each of them have mentioned the name of the

accused persons in the same chronology is enough to hold

that they are the tutored witnesses and as such no reliance

can be placed on them. The further argument advanced by Mr.

Lalit is that if two of the appellants had gun with them and

both of them simultaneously fired the gun as stated by the

prosecution witnesses but they have not been able to

indicate as to whose gun shot hit which deceased, the

conviction of these appellants dividing in two groups and

making each member responsible for death of one of the

deceased is wholly unsustainable. According to Mr. Lalit the

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delayed examination of the prosecution witnesses under

Section 161 Cr. P.C., the finding that the F.I.R. was not

written at the place of occurrence as alleged by PW-18, the

number of injuries on the deceased do not commensurate with

the number of accused persons alleged to have assaulted the

deceased, all taken together creates sufficient doubt in the

prosecution case, and therefore, the accused persons are

entitled to get the benefit of doubt. Mr. Lalit also urged

that the charge under Section 149 having failed and the

object of the assembly being to desist the laborers

transplanting paddy seeds, unless and until it is

established that the assailants developed a common intention

at the spot of occurrence to kill the two persons the

conviction under Section 302/34 cannot be sustained.

According to the learned counsel it is, therefore, necessary

for the prosecution to establish that the so called attacks

by each of the accused persons was with intention to kill so

that it can be concluded therefrom that a common intention

to kill the deceased developed at the spur of the moment.

Judged from this angle if some of the accused persons

assaulted the deceased after they fell down after receiving

the gun shot, by means of Lathi not on vital part of the

body of the deceased but on the leg or some other part where

minor injuries have been found by the doctor then such of

the accused persons cannot be convicted by taking recourse

to Section 34 with the main offence under Section 302 IPC.

The learned counsel had also urged that the gun shot

injuries are not on the vital part of the body, and

therefore, the persons who have been alleged to have given

the shot injuries can't be held liable for the offence of

murder.

The learned counsel of the appellants in Criminal

Appeal No. 198 of 1982 also attacked the impugned judgment

on all the grounds urged by Mr. Lalit appearing for the

appellants in Criminals Appeal No. 197 of 1982 and in

addition contended that the appellants in Criminal Appeal

No. 198 of 1982 have been found to be mere present with the

mob, armed with lathies and have not committed any attack,

consequently their conviction under Section 147 IPC and

sentence passed thereunder is not sustainable in law.

Mr. Sinha, the learned senior counsel for the

respondent on the other hand submitted that there are as

many as 12 witnesses examined on the behalf of the

prosecution of whom PWs 8,9,11,14 and 15 were injured in

course of the incident and when two courts of fact have

already scrutinized the evidence and have come to the

conclusion that the prosecution case has been proved beyond

reasonable doubt it would not be appropriate for this Court

to re-appreciate the evidence and come to its own

conclusion. The learned counsel further contended that no

doubt it is true that initial object of the unlawful

assembly was to desist the persons on the field from

ploughing or from undertaking any agricultural operation.

But at the spot when PW-1 gave a lalkar to finish up the

Mukhiya and others. a common intention developed at the spur

of the moment. Consequently, all those who participated in

the overt attack which ultimately resulted in the death of

two persons Razaullah and Ahmed Shah would be liable under

Section 302/34 and the High Court, therefore, was fully

justified in convicting them thereunder and sentencing them

to imprisonment for life. According to the learned counsel

the fact that a common intention developed at the spur of

the moment is established from the evidence of PWs 1,2,8,9

and 14. Commenting upon the argument of Mr. Lalit that

kapileshwar Pandey being the main target it is difficult to

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believe that kapileshwar pandey Kept himself hidden in the

nearby Janera field and yet no accused person followed him,

the learned counsel for the State urged that when

kapileshwar pandey found himself to be the main target of

attack it is but natural for him to run away form the spot

and hide himself at a place available in the vicinity and

accordingly Kapileshwar Pandey did hide himself in the

nearby Janera field. Such conduct on the part of kapileshwar

pandey did hide himself in the nearby Janera field. Such

conduct on the part of kapileshwar is only most probable

conduct of Amman under the circumstances and the High Court

was justified in believing the evidence of said Kapileshwar.

So far as the argument advanced on account of delay in

recording the statements of witnesses by the investigating

officer the learned counsel urged that the materials on

record fully establish that the initial investigating

officer was partial and was not conducting the investigation

fairly on account of which the investigation was transferred

from him to some other man under the orders of the

supervising authority and under such circumstances the

alleged delay in recording the statement of the witnesses

under Section 161 Cr.P.C will not vitiate the prosecution

case. The learned counsel also urged that no doubt the

accused persons have been acquitted of the charge under

Section 302/149 and no appeal has been preferred therefrom

but when a mob of 200 persons came armed with deadly weapons

and several members of the mobs started attacking the

persons on the field the second part of Section 149 gets

attracted, and therefore, the accused persons will be

convicted thereunder. Since no prejudice is caused to the

accused persons and since they are initially charged under

section 302/149 it would be within the powers of this Court

to convict them under Section 302/149 even in the absence of

an appeal against the order of acquittal of

the said charge. The rival contentions require a careful

examination of the materials on record.

At the outset it must be stated that ordinarily this

Court under Articles 136 of the constitution does not re-

appreciate the evidence and the conclusions of the High

Court on a question Mr. U.R. Lalit, the learned senior

counsel appearing for the appellants in Criminal Appeal No.

197 of 1982 contended that the star witness of the

prosecution is kapileshwar Pandey, PW-18 and his evidence is

unbelievable and shaky and could not be relied upon. So far

as the other eye-witnesses are concerned according to Mr.

lalit they have merely repeated the incident in a parrot

like manner and the very fact that each of them have

mentioned the name of the accused persons in the same

chronology is enough to hold that they are the tutored

witnesses and as such no reliance can be placed on them. The

further argument advanced by Mr. Lalit is that if two of the

appellants had gun with them and both of them simultaneously

fired the gun as stated by the prosecution witnesses but

they have not been able to indicate as to whose gun shot hit

which deceased, the conviction of these appellants dividing

in two groups and making each member responsible for death

of one of the deceased is wholly unsustainable. According to

Mr. Lalit the delayed examination of the prosecution

witnesses under Section 161 Cr. P.C., the finding that the

F.I.R. was not written at the place of occurrence as alleged

by PW-18, the number of injuries on the deceased do not

commensurate with the number of accused persons alleged to

have assaulted the deceased, all taken together creates

sufficient doubt in the prosecution case, and therefore, the

accused persons are entitled to get the benefit of doubt.

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Mr. Lalit also urged that the charge under Section 149

having failed and the object of the assembly being to desist

the labourers transplanting paddy seeds, unless and until it

is established that the assailants developed a common

intention at the spot of occurrence to kill the two persons

the conviction under Section 302/34 cannot be sustained.

According to the learned counsel it is, therefore, necessary

for the prosecution to establish that the so called attacks

by each of the accused persons was with intention to kill so

that it can be concluded therefrom that a common intention

to kill the deceased developed at the spur of the moment.

Judged from this angle if some of the accused persons

assaulted the deceased after they fell down after receiving

the gun shot, by means of Lalit not on vital part of the

body of the deceased but on the leg or some other part where

minor injuries have been found by the doctor then such of

the accused persons cannot be convicted by taking recourse

to Section 34 with the main offence under Section 302 IPC.

The learned counsel had also urged that the gun shot

injuries are not on the vital part of the body, and

therefore, the persons who have been alleged to have given

the shot injuries can't be held liable for the offence of

murder.

The learned counsel of the appellants in Criminal

Appeal No. 198 of 1982 also attacked the impugned judgment

on all the grounds urged by Mr. Lalit appearing for the

appellants in Criminals Appeal No. 197 of 1982 and in

addition contended that the appellants in Criminal Appeal

No. 198 of 1982 have been found to be mere present with the

mob, armed with lathies and have not committed any attack,

consequently their conviction under Section 147 IPC and

sentence passed thereunder is not sustainable in law.

Mr. Sinha, the learned senior counsel for the

respondent on the other hand submitted that there are as

many as 12 witnesses examined on the behalf of the

prosecution of whom PWs 8,9,11,14 and 15 were injured in

course of the incident and when two courts of fact have

already scrutinized the evidence and have come to the

conclusion that the prosecution case has been proved beyond

reasonable doubt it would not be appropriate for this Court

to re-appreciate the evidence and come to its own

conclusion. The learned counsel further contended that no

doubt it is true that initial object of the unlawful

assembly was to desist the persons on the field from

ploughing or from undertaking any agricultural operation.

But at the spot when PW-1 gave a lalkar to finish up the

Mukhiya and others. a common intention developed at the spur

of the moment. Consequently, all those who participated in

the overt attack which ultimately resulted in the death of

two persons razaullah and Ahmed Shah would be liable under

Section 302/34 and the High Court, therefore, was fully

justified in convicting them thereunder and sentencing them

to imprisonment for life. According to the learned counsel

the fact that a common intention developed at the spur of

the moment is established from the evidence of PWs 1,2,8,9

and 14. Commenting upon the argument of Mr. Lalit that

kapileshwar Pandey being the main target it is difficult to

believe that kapileshwar pandey Kept himself hidden in the

nearby Janera field and yet no accused person followed him,

the learned counsel for the State urged that when

kapileshwar pandey found himself to be the main target of

attack it is but natural for him to run away form the spot

and hide himself at a place available in the vicinity and

accordingly Kapileshwar Pandey did hide himself in the

nearby Janera field. Such conduct on the part of kapileshwar

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pandey did hide himself in the nearby Janera field. Such

conduct on the part of kapileshwar is only most problem

conduct of Amman under the circumstances and the High Court

was justified in believing the evidence of said Kapileshwar.

So far as the argument advanced on account of delay in

recording the statements of witnesses by the investigating

officer the learned counsel urged that the materials on

record fully establish that the initial investigating

officer was partial and was not conducting the investigation

fairly on account of which the investigation was transferred

from him to some other man under the orders of the

supervising authority and under such circumstances the

alleged delay in recording the statement of the witnesses

under Section 161 Cr.P.C will not vitiate the prosecution

case. The learned counsel also urged that no doubt the

accused persons have been acquitted of the charge under

Section 302/149 and no appeal has been preferred therefrom

but when a mob of 200 persons came armed with deadly weapons

and several members of the mobs started attacking the

persons on the field the second part of Section 149 gets

attracted, and therefore, the accused persons will be

convicted thereunder. Since no prejudice is caused to the

accused persons and since they are initially charged under

section 302/149 it would be within the powers of this Court

to convict them under Section 302/149 even in the absence of

an appeal against the order of acquittal of

the said charge. The rival contentions require a careful

examination of the materials on record.

At the outset it must be stated that ordinarily this

Court under Articles 136 of the constitution does not re-

appreciate the evidence and the conclusions of the High

Court on a question of fact or on appreciation of evidence

are considered to be final. But at the same time there is no

bar for this court to re-appreciate the evidence if the

interest of justice so demands. In the case in hand as many

as 47 people out of a mob of 200 persons have been charged

and ultimately have been convicted under different sections

of the penal code and the conviction is based upon the

ocular statement. In that view of the matter we thought it

appropriate to examine the evidence ourselves for coming to

a conclusion as to whether there has been any miscarriage of

justice by an apparent erroneous appropriate to examine the

evidence ourselves for coming to a conclusion as to whether

there has been any miscarriage of justice by an apparent

erroneous appreciation of the ocular evidence. From the

aforesaid stand point the evidence in the case may be

scrutinized. As it appears, PW-18 is the stat witness in

this case. Since it is he who could see the incident from

the beginning to the end after hiding himself in the nearby

Janera field and was the first person to arrive on the spot

after the accused persons left the field when somebody cried

that the Magistrate is coming with the force. PW-18,

Kapileshwar was Mukhiya of the village having been so

elected on 5.7.1962. According to his evidence he went to

the field accompanied by deceased Razaullah at 11a.m. on

25.07.1974 and while the labourers started working on the

field he sat on the southern corner of the field. At 12 noon

a mob of about 200 persons armed with Gun, Bhala, Gadasa,

Bow-arrow and Lathi reached the filed of whom he could see

Dukhmochan Pandey and Sarbnarain holding guns in their

hands; Soukhilal Yadav, Amirilal Yadav, Sukhram Mishra,

Jainandan, Ram Chander Pandey, Ram Chandra Sharma,

Tapeshwar, Kameshwar Pandey and Jiwachch Mishra had Bhalas

in their hands; Mawal Kishore Pandey, Manendra Narian and

Shiv Shekhar Pandey had Gandasa in their hands. Kalimuddin

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Mian, Suleman Mian, Shamsul Mian, Chandeshwar Thakur, Horila

kapar and Ram preeti Mishra had gone with arrows in their

hands. He could identify all the accused persons who stood

charged by name and he knew their place of residence. As

soon as the mob reached the place Uttam Pandey and Upendra

Pandey told the labourers to stop the work. The said

witness, PW-18 and the labourers said that the work will not

be stopped and on this uttam Pandey and Upendra Pandey gave

the order to finish all the persons belonging to the party

of PW-18. On such order of Uttam Pandey and Upendra pandey,

Dukhmochan Pandey and Sarbnarain fired their guns which hit

Razaullah and Ahmed Shah and both of them fell down. PW-18

ran away to the nearby Janera field and keeping himself out

of the sight of the accused persons he could see what was

happening to the labourers engaged by him for carrying out

the transplantation operation. Saukhilal, Amirilal, Sukhram

jainandan, Ram Chandra Pandey and Ram Chandra Sharma

assaulted Razaullah with Bhala; Shivnarain Thakur and Nawal

Kishore Thakur assaulted razaullah with Gadasa on his neck;

and Yogendra Narain Pandey, Mahendra Narain Pandey and shiv

Shekar assaulted Razaullah with Gandas. After Razaullah fell

down Tapeshwar Pandey, Kameshwar and Jiwachch assaulted

Ahmed Shah with Bhala Jugeshwar Mandal, Kapileshwar Mandal,

Aghnu Mandal, Janak Das, Sanvam Pandey and Upendera Pandey

assaulted him with lathi. Uttam Pandey by sitting on the

person of Ahmed with Bhala. Kapileshwar Mandal, Jugeshwar

Mandal, Aghnu Mandal, janak Das, Sanyam Pandey and Upendra

Pandey assaulted Bibi Julekha Khatoon and SK. Hadia with

lathi. Kalimuddin Mian, Suleman Mian, Shamsul Mian, Horil

Kapar Chandeshwar Thakur and Rampreet Mishra were shooting

arrows. Mr. U.R. Lalit , the learned senior counsel

contented that this PW-18 admittedly being inimical with the

acused persons his evidence requires a stricter scrutiny for

being accepted. According to the learned counsel the Mukhiya

was the main target and rest of the injured persons were

merely labourers of Mukhiya who were busy in transplantation

operation on the field. Mukhiya could not have escaped from

the clutches of the accused persons who according to the

prosecution case hid himself when a mob of 200 persons came

and then again said Mukhiya could not have seen the entire

occurrence in a sitting position. The learned counsel also

urged that even if it is assumed that he could see the

incident from the Janmera field he could not have been able

to narrate the incident in a graphic manner in which he

narrated. It is in this connection, Mr. Lalit also urged

that the High Court itself on consideration of the entire

material has come to a finding that this witness claimed to

have written the FIR at the spot itself. But a very look at

the FIR at the spot itself . But a very look at the FIR

makes the story impossible and obviously therefore the FIR

had not been written on the field. This finding, according

to the learned counsel, lends corroboration to the

submission that PW-18 has not witnessed the occurrence and

came to the place much later and handed over a written FIR

to the Magistrate which was later on given to the police.

The counsel also urged that a reading of the evidence of PW-

18 would indicate that he was neither on the field at the

time of occurrence nor has seen the occurrence but has been

able to rope in the accused persons by giving their names in

the written FIR. We have carefully scrutinized the evidence

of PW -18 and considered the comments of Mr. Lalit

impeaching his credibility but having examined the evidence

of said PW-18 we are not in a position to hold him to be an

unreliable witness neither we are in a position to hold that

Kapileshwar had not seen the occurrence and has merely

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included the names of the accused persons in the written

FIR. No doubt there has been certain embellishments and the

High Court, therefore, was justified in coming to a

conclusion that the FIR was not written at the place of

occurrence as stated by PW-18 . But on that basis the entire

prosecution case cannot be thrown out particularly when out

of 12 witnesses examined on behalf of the prosecution 5 are

the injured witnesses PWs 8,9,11,14 and 15. These injured

witnesses corroborate the evidence of PW-18 with regard to

the manner of assault, the place off assault, weapons used

by different accused persons, the persons, the persons who

assaulted the two deceased persons the arrival of the

Magistrate soon after the occurrence, the arrival of the

investigating officer at the field, handing over of FIR by

kapileshwar to the magistrate. The general comment of Mr.

Lalit in respect of these injured witnesses is that they

repeated in a parrot like manner as to what have been stated

by kapileshwar, PW-18. We are unable to discard their

testimony on this ground particularly when the learned

Sessions Judge as well as the High court after thorough

scrutiny of their evidence have held them to be reliable

corroborating the evidence of star witness PW-18. In our

considered opinion, therefore, the prosecution story as

unfolded through the evidence of PWs 8,9,11,14,15 and 18

cannot be doubted. Mr. Lalit in course of his argument no

doubt had contended that the witnesses were examined by the

police under Section 161 Cr.P.C. after 5 or 6 days of the

incident and no satisfactory explanation for the delay in

recording their statement has been put forward by the

prosecution. Though delayed examination of witnesses by the

investigating agency in certain cases my create a doubt in

the mind of a court for accepting the testimony of the

witnesses, but in the case in hand it is apparent that the

initialinvestigating officer has not been fair enough in

investigating into the offence as a result of which under

the orders of the supervising officer the ivestigation was

transferred to another officer who after taking charge of

the investigation recorded the statement of these witnesses.

Such explanation for delay in recording the statement of

vital witnesses has been held to be a sufficient explanation

and we do not find any justifiable ground to interfere with

that conclusion. In this view of the matter the next

question that arises for consideration is whether in

accordance with the prosecution case itself the common

object of the mob being to desist the labourers from

carriving on the transplantation operation on the field and

not to commit murder of any member of the prosecution party

particularly the deceased Razaullah and Ahmed Shah and the

charge under Section 302/149 having failed, can it be

concluded that some of accused persons developed a common

intention at the spot to kill two deceased persons and in

furtherance of the said common intention they went on

assaulting the deceased persons who ultimately succumbed to

the injuries they sustained. From the prosecution evidence

there cannot be in dispute and in fact the courts below have

come to the finding that a mob of 200 persons came armed

with different weapons with object of preventing the

prosecution party for, carrying on the transplantation

operation on the field. The existence of a common intention

between the participants in a crime is an essential element

for attracting Section 34 of the Indian Penal Code and such

intention could be formed previously or on the spot during

the progress of the crime. Usually it implies a pre-arranged

plan which in turn pre-supposes a prior meeting of mind. But

in a given case such common intention which developed at the

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spur of the moment is different from a similar intention

actuated a number of persons at the same time, and

therefore, the said distinction must be borne in mind which

would be relevant in deciding whether Section 34 of the

Indian Penal Code can be applied to all those who might have

made some over attack on the spur of the moment. (See kripal

and others vs. State of Uttar Pradesh. A.I.R. 1954 S.C. 706

Pandurang, Tukia and Bhillia vs. The State of Hyderabad,

1955(1) S.C.R. 1083 and Mohan Singh vs. State of Punjab,

1962 supp(3) S.C.R. 848) . The distinction between a common

intention and a similar intention may be fine, but is

nonetheless a real one and if overlooked, may lead to

miscarriage of justice. In the case of Hardev Singh and

another vs. The State of Punjab, (1975) 3 S.C.C. 731., the

original target of attack was one Kewal Singh who received

only some simple injuries having been caused to him by

accused Harijinder Singh and Piara Singh. But in course of

the incident accused Hardev Singh gave a kirpan blow on the

head of Tej kaur and question of consideration was whether

all the accused persons can be held guilty for the offence

of murder of said Tej Kaur with the aid of Section 34 of the

Indian Penal Code. This Court held that the assault on Tej

Kaur by accused Hardev Singh was his individual act and

consequently other accused persons cannot be held guilty of

the offence under Section 302/34 for the murder of said Tej

Kaur. The question, whether all the persons who made some

overt attack as a result of which some members of the

prosecution party died shared the common intention of the

murder of such persons would be question fact and it is

difficult to give any direct proof of existence of such

common intention and can only be inferred from

circumstances. in other words, unless such common intention

is established as a matter of necessary inference from the

proved circumstances of the case then the accused persons

could be individually liable for their respective overt

attacks and not for the act done by any other person. The

mere fact that the accused persons were armed with some

weapons itself would not be sufficient to attribute common

intention of all of them to commit murder particularly when

in the case in hand the prosecution case itself is that the

accused persons came to the field with the sole object of

desisting the labourers from continuing with the

transplantation operation. Mr. Sinha, learned senior counsel

appearing for the respondent had urged that every person is

presumed to know the natural consequences of his own act and

therefore pursuance to the call being given to kill the

persons of Mukhiya whereafter the accused appellants having

assaulted the two deceased persons with different weapons in

their hands, it must be held that they had developed the

common intention of murdering Ahmed Shah and Razaullah and

as such their conviction under Section 302/34 is us wholly

justified. As has been stated earlier whether all those who

are said to have been armed with some weapons and alleged to

have assaulted the deceased, shared the common intention of

murdering deceased has to be found out from the facts and

circumstances established and found. In other words, it

would be necessary to examine as to the weapon of assault,

on the part of the body on which such assault was committed,

the medical evidence indicating the nature of injuries

caused thereby and the ultimate cause of death of the two

persons.

It may be stated that for causing murder of Ahmed Shah

accused Dukhmochan Pandey, Uttam Pandey, Kameshwar Pandey,

Jibachh Mishra, Sarabnarain Mishra, Jakan Das, Sanjam

Pandey, Upendra Narain Pandey, Tapeshwar Pandey, Jainandan

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Mishra, Jugeshwar Mandal, Kapileshwar Mandal have been

convicted under Section 302/34. Witnesses have established

that Dukhmochan Pandey was holding a gun, Uttam Pandey was

holding a Lathi, Kaeshwar Pandey was holding Bhala, Jibaccha

Mishra was holding a Bhala, Sarabnarian Mishra was holding a

Gun, Jakan Das was holding Lathi, Sanjam Pandey holding a

Lathi, Upendra Narain Pandey was holding a Lathi, Tapeshwar

Pandey was holding a Bhala, Jainandan Mishra was holding a

Bhala, Jugeshwar Mandal was holding Lathi and Kapileshwar

Mandal was holding a Lathi. The Doctor, who conducted the

post-mortem examination on the dead body of Ahmed Shah, PW-

32 found the following injuries on him:

"On the same date at 4 p.m. I held P.M. examination on

the body of ahmed Shah S/o. Hakim Shah of the same and found

as follows:

1. Perforating injury 3/4" x 1/2"

chest cavity almost transverse in

the second right intercostal space

anteriorly.

2. Performating injury 2"x1/2" x

chest cavity almost transverse in

the foweth right intercosteral

space anteriorly.

3. Lacerated injury 1/4" long

across the right lip.

4. Both the incisors and one canine

teeth in I got lower jaw broken.

5. Two teeth on upper left jaw and

four teeth on right upper jaw

broken.(Two incisors, one canine

and one premolar).

6. One abrasion 1/2" x 1/2" on

right shoulder.

7. One abrasion 1"x 1/2" on chest

right side, upper part.

8. One abrasion 1"x1/4" on mid of

back right side.

9. Second and fourth ribs were cut

anteriorly. They were spounder to

injuries Nos. 1 and 2. Intercostal

muscles abo cut. Pheera cut 2

inches long at place on right side

anteriorly. There was a cut in the

upper lobe of the right lung,

anteriorly .....3"x 1"x 1". The

middle lobe had abodone cut 3/4"

x1" anteriorly. Chest cavity was

full of blood and blood cloth,

almost faint. Both chambers of

heart were empty."

According to the doctor injuries Nos. 1 and 2 were

vital caused by some sharp pointed weapon and death is due

to shock, haemorrhage and injuries to vital. organs. From

the nature of injuries sustained by the deceased it can

reasonably be said that the two fatal injuries. Nos. 1 and 2

could be the result of attack by Bhala. The lacerated injury

across the right lip breaking of both the incisors and one

canine teeth in right jaw, breaking of two teeth on upper

left jaw and four teeth on right upper jaw, abrasion found

on right shoulder, abrasion found on right side chest and

abrasion found on the mid of back right side could be caused

by Lathi, From the nature of the injuries found on the dead

body of deceased Ahmed Shah and the nature of the weapons of

assault used by accused holding lathies namely accused uttam

Pandey, Janak Das, Saniam Pandey, Upendra Narain Pandey,

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Janak Das, Saniam Pandey, Upendra Narain Pandey, Jogeshwar

Mandal and Kapileshwar Mandal. and the part of the body of

Ahmed Shah on which they assaulted, it may not be possible

to hold that they shared common intention of causing murder

of Ahmed Shah. For an inference of common intention being

drawn for the purposes of Section 34, the evidence and the

circumstances of the case should establish, without any room

for doubt, that a meeting of minds and a fusion of ideas had

taken place amongst different accused and in prosecution of

it the overt acts of the accused persons flowed out. As has

been stated earlier the prosecution case itself is, they

came to prevent the labourers from continuing the

transplantation operation but at the spur of the moment on

account of certain lalkara being given by some of the

accused persons. Persons armed with weapons started

assaulting the deceased. But from mere assault even not on

vital parts of the body which ultimately resulted in causing

some minor injuries, it may not be sufficient to establish

beyond reasonable doubt that they also shared a common

intention of causing murder of deceased Ahmed Shah. In this

view of the matter, the conviction of appellants Uttam

Pandey, Janak Das, Sanjam Pandey, Upendra Narain Pandey,

Jaogeshwar Mandal and Kapileshwar Mandal under Section

302/34 IPC for causing murder of deceased Ahmed Shah cannot

be sustained and the same is set aside. instead they are

convicted under Section 325/34 IPC. Sentenced to undergo

rigorous imprisonment for five years. It is no doubt true

that there is no gun shot injury on him but it is Dukhmochan

Pandey and Sarbnarain Mishra who on being ordered by Uttam

Pandey fired the guns in their hands first, whereafter all

others assaulted with the respective weapons in their hands.

That being the being the position, Dukhmochan Pandey and

Sarbnarain Mishra also could be held liable under Section

302/34 and have been rightly convicted by the courts below.

For causing death of Razaullah the following 12 accused

persons have been convicted under Section 302/34 IPC:

1. Dukhmochan Pandey A-1

2. Shiv Narain Thakur A-3

3. Shivshekhar Pandey A-6

4. Sarabnarain Mishra A-8

5. Sukhram Mishra A-10

6. Saukhilal Yadav A-15

7. Naval Kishore Pandey A-17

8. Jogendra Narain Pandey A-18

9. Mahendra Narain Pandey A-21

10. Ramchandra Pandey A-25

11. Jainandan Mishra A-35

12. Amiri Lal Yadav A-46"

Of these accused persons Dukhmochan Pandey was holding

a Gun, Shiv Narain Thakur was holding a Garasa, Shivshekhar

Pandey was holding a Garasa, Sarabnarain Mishra was holding

a Gun, Sukhram Mishra was holding a Bhala, Saukhilal Yadav

was holding a Bhala, Saukhilal yadav was holding a Bhala,

Naval Kishore pandey was holding a garasa, Jogendra Narain

Pandey was holding a Garasa. Mahendra Narain Pandey was

holding a Garasa. Mahendra Narain Pandey was holding a

Garasa. Ramchandra pandey was holding a Bhala, Jainandan

mishra was holding a Bhala. Doctor, PW-32, found the

following injuries on the dead body of Razaullah:

"1. Incised injury 8"x1/2", some

what elliptical in shape on lower

part of back of head, just on the

lower part of the accipebal bone.

2. Punctured injury 3/4" x 1/4" x

4/4" and 1" below the lobule of the

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left ear.

3. Perforating injury antori .....

third left inter costal

space.....................

downwards medially.

4. Perforating injury 1/2" x 1/4" x

abdominal cavity on men, left side,

upper part.

5. Perforating injury 1/2" x 1/4" x

abdominal cavity on abdomen, left

side, front aspect.

6. Oblique punctured injury 2"x

1/4" x 1" on right arm anteriorly.

7. abrasion 1/2" x 1/2' below right

eye.

8. Incised 4" x 1/2" x boale on

left knee.

9. Compound fracture of tibia and

fibula, lower third, left leg.

10. Almost round hole 1/2" x 1/4"

approximately x bone with lacerated

markings on left leg lower

part(would of entrance).

11. Lacerated injury 1" x 1/2" on

the left foot medial malicoli wound

of exit.

Probe was made to enter through

injury No. 11,

if came out through injury No. 11.

Lower part of fibia and fibula were

found cross bed on opening the

injured part. Injury No. 10 was

situated anteriorly on the lower

part of the left leg.

12. Lacerated injury 1/2" x 1/2" 1"

on right leg, lower part, medially.

13. Punctured injury 1/2" x 1/8 x

1/4" on right ankle joint

anteriorly.

14. Punctured injury 3/4" x 1/4" x

bone on right foot anteriorly.

15. Punctured injury 3/4" x 1/6" on

sole of the left foot.

Third Ribon left side was found cut

anteriorly. intercostal muscles of

the third left space was also.....

dimension as per injury No. 3

Pleura also cut for 2" in length

anteriorly. Chest clot blood and

blood clot, approximately a pland

of the left lung cut 3" x 1/2" x 1"

anteriorly. Heart, chambers were

empty, each, situated anteriorly

and another laterally. Stomach was

performed in not tolateral surface

along the greater curvature size

1/6' x 1/6' x stomach cavity. Some

gruel was found inside the stomach

and a little out of the stomach.

Spleen was also punctured, about

1/6" in diameter on the front

aspect depth being 1/4". Abdominal

cavity had also little ceslection

of blood and blood clotal."

All these injuries according to doctor were ante-mortem

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in nature and injuries No. 1,3,4 and 5 were fatal. The

doctor also stated that injuries Nos. 1 and 8 could be

caused by sharp cutting weapon. Injuries No. 9 and 10 and 11

were caused by gunshot. injuries No. 2,3,4,5,6,,12,,13,14

and 15 caused by some sharp pointed weapon and death was due

to shock, haemorrhage and injuries on the vital organs. In a

case of murder where it is established by satisfactory

evidence that all the accused were acting in concert and

were associated with each other in causing assault and

multiple injuries were found on the deceased it leaves no

room for doubt that all the accused had shared a common

intention to cause death (see Aher Pitha Vaishi and others

vs. State of Gujarat, AIR 1983 SC 599). In view of the

nature of injuries found on the dead body of deceased

Razaullah and the weapons of assault in the hands of the

acccused, it would be difficult to hold that all of them had

not shared the common intention of killing the Razaullah

which developed at the spur of the moment on being ordered

by Uttam Pandey. In fact with deadly weapons in their hands

they mercilessly assaulted deceased Razaullah and as such

their conviction under Section 302/34 is fully justified.

So far as Criminal Appeal No. 198 of 1982 is concerned

the appellants have been convicted under Section 147 IPC and

in view of number of eye-witnesses to the occurrence many of

whom are injured witnesses and those witnesses having been

believed by the learned Sessions Judge as well as by the

High Court and while discussing their evidence in the other

appeal we have also believed their testimony, we see no

infirmity in conviction and sentence passed against the

appellants in this appeal, and therefore, the said appeal is

dismissed.

In the net result, therefore, the conviction of

appellants Uttam Pandey, Janak Das, Sanjam Pandey, Upendra

Narain Pandey, Jogeshwar Mandal and Kapileshwar Mandal under

Section 302/34 IPC for causing murder of Ahmed Shah and the

sentence passed thereunder is set aside, instead they are

convicted under Section 325/34 and they are sentenced to

undergo rigorous imprisonment for five years. The conviction

of other accused persons namely Dukhmochan Pandey, Kameshwar

Pandey, Jibacch Mishra, Sarabnarain Mishra, Tapeshwar Pandey

and Jainandan Mishra under Section 302/34 IPC for causing

murder of Ahmed Shah and the sentence passed thereunder is

affirmed. The conviction of all the 12 accused persons,

namely, Dukhmochan Pandey, Shiv Narain Thakur, Shivshekhar

Pandey, Sarabnarain Mishra, Sukhram Mishra, Saukhilal Yadav,

naval Kishore Pandey, Jogendera Narain Pandey, Mahendra

Narain Pandey, Ramchandra Pandey, Jainandan Mishra and Amiri

Lal yadav under Section 302/34 for causing murder of Sk.

Razaullah and sentence passed thereunder is affirmed. Their

conviction and sentence on other counts remain unaltered.

Criminal Appeal No. 197 of 1982 is partly allowed to the

extent indicated above. The conviction and sentence of the

appellants in Criminal Appeal No. 198 of 1982 is affirmed.

Criminal Appeal No. 198 of 1982 dismissed.

The accused - appellants who are on bail are directed

to surrender to serve the balance period of sentence and in

case they fail to surrender steps may be taken for their

arrest to serve the sentence.