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

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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

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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 3

rd

Additional

Sessions Judge, Begusarai in Sessions Trial No.461 of

2012/0005799 of 2013 by which they have been convicted and

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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

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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

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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

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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

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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

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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.

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(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

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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

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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.

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(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,

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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

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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

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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

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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.

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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

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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-

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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:

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“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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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(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

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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

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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

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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.

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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

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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.

Mkr/Aditi/-

(A. M. Badar, J)

( Alok Kumar Pandey, J)

AFR/NAFR AFR

CAV DATE 29.11.2022

Uploading Date 23.12.2022

Transmission Date 23.12.2022