Subhash Chand, J
Heard learned Amicus Curiae for the appellants and learned counsel for the State.
1. The instant criminal appeal is preferred on behalf of the abovenamed appellants against the impugned Judgment of conviction dated 2nd February, 1994 and Order of sentence dated 7th February, 1994, passed by the 2nd Additional Sessions Judge, Godda in Sessions Case No.170 of 1993/40 of 1993, whereby, the appellant no.1 Triveni Sharma was convicted under Sections 307, 307/34 and sentenced to undergo rigourous imprisonment for life, rigorous imprisonment for three years and fine of Rs.1,000/-. In default to undergo rigorous imprisonment for one year in addition to principal sentence under Section 326 of the I.P.C. and rigorous imprisonment for one year and fine of Rs.500/- in default to undergo rigorous imprisonment for six months in addition to principal sentence under Section 324/34 I.P.C. Appellant no.4 Hari Kishore Sharma was convicted under Sections 307 and 307/34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. R.I. for three years and fine of Rs.500/- in default to undergo R.I. for six months in addition to under Section 326/34 of the I.P.C. and R.I. for one year and fine of Rs.500/- in default to undergo R.I. for six months in addition under Section 324 I.P.C. Appellant no.2 Raj Kishore Sharma and appellant no.3 Narayan Sharma were convicted for the offence under Section 307/34 of the I.P.C. and sentenced to undergo imprisonment for life. Rigorous imprisonment for three years and fine of Rs.500/- each, in default to undergo R.I. for six months in addition under Section 326/34 of the I.P.C. and R.I. for one year and fine of Rs.500/- in default to undergo R.I. for six months in addition under Section 324/34 of the I.P.C. Further all the sentences were directed to run concurrently and period of imprisonment undergone during trial was to be set off.
2. The brief facts giving rise to this criminal appeal are that the informant—Mohan Yadav gave fard beyan with the police station concerned with these allegations that on 27th May, 1993 at 07:00 a.m., he had gone to the house of Baldeo Mistry, who used to live in the house of a Brahmin in order to look after the same at village Basantpur to cover the house with thatch. At the same time, Ramdas Mistry also reached there. Both were having tea at the house of Baldeo Mistry sitting in Verandah. At the same time, Triveni Sharma armed with pistol, Hari Kishore Sharma armed with Gandasa, Narayan Sharma armed with lathi and gandasa and Raj Kishore Sharma armed with farsa came there. Triveni Sharma opened fire with the pistol thrice indiscriminately. One bullet hit on his right hand below the elbow and another hit right arm and third bullet hit on his right shoulder. The informant also sustained injuries on his right side of the face between the tample and cheek. Ram Das Mistry came to rescue him and Triveni Sharma assaulted him with pistol on head. Hari Kishore Sharma, Narayan Sharma, Raj Kishore Sharma assaulted him on the head, back and hand with dagger, farsa and gandasa respectively. Baldeo Mistry also came to rescue them then Triveni Sharma swung a wooden stick upon him but he went back and warded off the blow. In course of assault Triveni Sharma also assaulted to kill them. The informant Sohan Yadav moved to the room of Baldeo Mistry and he heard the sound of blast of a bomb. One Jaldhar Manjhi took Sohan Yadav to Samarua by his cycle, wherefrom a man of Samarua took him to Sadar Hospital, Godda by motorcycle. Later on Ramdas Mistry was also brought to the hospital. The occurrence was the outcome of the demanding back the land which was given by accused-Triveni Sharma under a mortgage to the informant—Sohan Yadav.
3. On the basis of this fard beyan, Case Crime No.76 of 1993 was lodged at Poraiyahat police station under Sections 452, 307, 34 of the Indian Penal Code and Section 27 of the Arms Act against the named accused persons. The I.O. after having concluded the investigation filed charge-sheet against all the accused persons and the Magistrate concerned after having taken the cognizance on the same committed the case to the court of Sessions Judge for trial.
4. After commitment of the case to the Court of Sessions, the trial court framed the charge against the accused—Triveni Sharma, Raj Kishore Sharma, Narayan Mistri and Hari Kishore Mistri for the offence under Section 307/34 and 326/34 of the Indian Penal Code. The charges were read over and explained to all the accused persons in Hindi and they pleaded not guilty and claimed to be tried.
5. On behalf of the prosecution in oral evidence examined P.W.1-Raj Mahal Manjhi, P.W.2-Vinay Kumar Jha, P.W.3-Baldeo Mistry, P.W.4-Ramdas Mistry, P.W.5-Shivlal Mistry, P.W.6-Radheshyam Manjhi, P.W.7-Sohan Yadav, P.W.8-Anand Lal Thakur and P.W.9-Dr. Mantu Kumar Tekriwal.
6. On behalf of the prosecution in documentary evidence adduced the seizure list Ext.1, fard beyan, Ext.2, F.I.R. Ext.3, injury report and supplementary injury report of Sohan Yadav Ext.4 and 4/a, injury report and supplementary injury report of Ramdas Sharma Ext.4/b and 4/c.
7. The statements of accused persons under Section 313 of the Cr.P.C. were also recorded, wherein they denied the incriminating circumstances against them.
8. The learned trial court after hearing the learned counsel for the parties passed the judgment of conviction and order of sentence against the accused persons.
9. The aforesaid convicts/appellants being aggrieved with the judgment of conviction dated 2nd February, 1994 and order of sentence dated 7th February, 1994 preferred this present criminal appeal on the grounds that the impugned judgment of conviction and order of sentence is illegal. The learned trial court has failed to appreciate the evidence on record in proper perspective. All the independent witnesses, who were alleged to be the eye-witness did not support the prosecution story, since they were declared hostile and despite cross-examining them by the prosecution nothing material could be brought to support the prosecution case. The testimony of P.W.-4 and P.W.-7 upon which the impugned judgment of conviction was passed is inconsistent and contradictory. The same does not transpires confidence to hold the conviction of the appellants. In the fard beyan, nowhere, it is stated that any one of the accused was armed with dagger but P.W.-4 stated that Hari Kishore Mistry had assaulted him with dagger. P.W.-7 is the notorious criminal of the locality. He had sustained injury in course of his criminal activities but the learned trial court did not take into consideration this material fact. The seizure of the empty bullet cartridge and blood stained khanti which was not even said to have been used by the accused persons and the blood spots on the main door plank, cast doubt in the prosecution case. P.W.-7, who sustained pellet injury, whereas the empty cartridge was recovered from the place of occurrence. As such the judgment of conviction and order of sentence passed by the learned trial court is based on perverse finding and same deserves to be set aside and prayed to allow this criminal appeal.
10. We have heard learned Amicus Curiae appearing for the appellants and learned A.P.P. for the State of Jharkhand and perused the materials available on record.
11. During pendency of this appeal, the appellant no.3, namely, Narayan Mistry died on 1st July, 2020 and no one of his legal heirs come forward to proceed with this appeal, therefore, vide order dated 13th February, 2023, this appeal was abated as relates to the appellant no.3.
12. In order to decide the legality and propriety of the impugned judgment of conviction and order of sentence passed by the learned trial court, it is necessary to re-appreciate the evidence adduced on behalf of the prosecution i.e., oral and documentary which is reproduced herein as follows :
13. P.W.-1 Raj Mahal Manjhi is the hostile witness and he stated that he knew nothing in regard to the occurrence.
14. P.W.-2 Vinay Kumar Jha is also the hostile and he also stated that he knew nothing in regard to the occurrence.
15. P.W.-3 Baldeo Mistry in his examination-in-chief says that Sohan Yadav and Ramdas Mistry had come to his house five to six months ago from that day in the morning for the wooden work. He asked both of them to have tea and he went to toilet and when he came back he saw the blood at the house and he had not seen anybody present there. He was residing in the house of Laxmi Jha which was being looked after by him in absence of Laxmi Jha, who resided in Purniya. He made effort to know about the blood at his house but nothing was told to him because Sohan Yadav was also rogue. Daroga Ji had also come to his house and recovered the bomb and he did not interrogate him. This witness was declared hostile by the prosecution and cross-examined.
During cross-examination, this witness stated that he had not given statement before the I.O.
16. P.W.-4 Ramdas Mistry is the injured eye-witness and he in his examination-in-chief says that the occurrence was about three months ago from that day. It was 8 o’ clock of morning, he had gone to the house of Baldeo Mistry along with Sohan Yadav. Baldeo Mistry gave them tea and at the same time Triveni Sharma opened fire upon Sohan Yadav which hit to his right hand, arm and shoulder. He made effort to flee away from there and Hari Kishore Sharma gave a dagger blow on his right tample at the eye. Raj Kishore Sharma hurled bomb but same could not hit him which fell on the ground and exploded emitting smoke. One more bomb was also hurled which did not explode. Prior to this occurrence, there was a dispute between Triveni Sharma, Narayan Sharma and them. On account of very animosity, this occurrence was caused. He recognized the accused persons present in the dock.
In cross-examination, this witness says that there was 11 bigha land in the name of his father in Basantpur village and he was also born in the said village. The house of Baldeo Mistry was in Basantpur. This house was of Laxmi Jha, who had given the same to Baldeo Mistry to look after it. The boundary wall of the house of Laxmi Jha in which Baldeo Mistry was residing was five feet high. The door of the same was towards the north and there were three rooms, verandah and courtyard. At the courtyard of Laxmi Jha, he, Sohan Yadav, Belu Kirhar, Khageshwar Jha and Baldeo Mistry were sitting. Khageshwar Jha was sitting on the chair while others were sitting on the wood. Sohan Yadav had come prior to him. At the time of occurrence, it was 8 o’ clock. They were having tea and at the same time, Triveni Sharma came and began to open fire, thereafter, other accused also intruded in the house. Triveni Sharma had pistol in both the hands and he opened fire upon Sohan with both the pistols. He had shot thrice to Sohan Yadav. Belu and Khageshwar fled away having opened the door. Baldeo Mistry caught hold of Triveni Sharma. Sohan fled away from there after having scaled the wall. Hari Kishan held his left hand and assaulted him. No one assaulted to Baldeo and he was rushed to the hospital. At present, three cases were pending against him in the court of Godda. It is wrong to say that Sohan Yadav was the anti-social element of the society and he had formed a gang. It is also wrong to say that the bomb and the pistols were manufactured by them at the house of Laxmi Jha and due to internal quarrel, the injuries were sustained by them.
17. P.W.-5 Shiv Lal Manjhi is the hostile witness. He also stated his un-awareness in regard to the occurrence.
18. P.W.-6 Radhe Shyam Manjhi is the witness of seizure list of live bomb and a piece of exploded bomb. He identifies his signature on the seizure list which was marked Ext.1.
19. P.W.-7 Sohan Yadav is the injured eye-witness. He in his examination-in-chief says that the occurrence was of seven months ago from that day. It was Thursday and time was 7 o’ clock of morning. Baldeo Mistry had called him to his house to prepare the thatch. Baldeo Mistry resided in the house of Laxmi Jha and was carpenter. He was having tea at the house of Baldeo Mistry and at the same time Khageshwar Jha, Belu Khirhar and Ramdas Mistry also came there. Thereafter Triveni Sharma came and he opened fire which hit on his right hand and right arm. Triveni Sharma had opened fire twice. Narayan Mistry, Harikishore Sharma, Raj Kishore Sharma also came there. After sustaining injury, when he tried to flee away, Triveni Sharma again opened fire which hit on his right shoulder. Raj Kishore Sharma and Harikishore Sharma also hurled two bombs, one exploded and another did not explode. Narayan Mistry was armed with gandasa. He fled away from the place of occurrence and came to his house from there and Praveen Sah of Samraua village took him to hospital by the motorcycle, where he was given treatment. Daroga ji had recorded his fard beyan and he identified his thumb impression thereon which was marked Ext.2. He also identified the accused persons present in the dock.
In cross-examination, this witness says that Narayan and Triveni are the real brothers. Hari Kishore and Raj Kishore are the sons of Narayan. At the house of Laxmi Jha, there were three rooms and one verandah. The door was only in one room. In the west side of house of Laxmi Jha, there was five feet high wall and in the northern side of the same is the door. At the house of Laxmi Jha, Baldeo Mistry was residing and they were five persons. All were sitting in the verandah and the courtyard. The courtyard and verandah were adjoining to each other. There was only one entrance in the house of Laxmi Jha. All the four accused did not come together, first of all Triveni came and the altercation took place between him and Triveni. Triveni opened fire on him. When Triveni shot twice to him he made effort to flee away, while he was scaling the wall, he again fired which hit on his shoulder. The bomb was also exploded and splinter of the same also hit him. He did not know the difference between the pistol, revolver and gun. Triveni had two pistols in his hand. At the time of occurrence, Khageshwar, Belu, Ramdas and Baldeo also fled away from there after opening fire. He was punished in a case with life imprisonment. In that case Triveni Sharma was also co-accused with him. Triveni Sharma was also punished and he had no concern with Ramdas Mistry. It is wrong to say that there was panic and terror of him and Ramdas Mistry in the locality. It is also wrong to say that the house of Laxmi Jha was shelter for them and the bomb was manufactured there.
20. P.W.-8 Anand Lal Thakur is the Investigating Officer. This witness in his examination-in-chief says that on 27th May, 1993 he was Sub-Inspector at the police station Poraiyahat. He received message from the Superintendent of Police Godda that in Basantpur within the limit of Poraiyahat fire was opened and someone also injured, and was asked to take action. He along with officer-in-charge of station G.N. Mishra and armed police force reached Basantpur and made queries from the villagers and inspected the place of occurrence. The place of occurrence was the house of Laxmi Jha in which Baldeo Mistry had been residing. There was boundary wall at that house. Courtyard and two rooms were also there towards the east side and in front of the rooms was the verandah. He found one empty cartridge of 303 bore and the blood stained khanti was also recovered from there. On the main door, the blood spot was there. The seizure memo of the recovered articles was prepared in presence of the witnesses which was marked Ext.1. He arrested accused Narayan Mistry and Hari Kishore Mistry. On reaching the police station, this fard beyan was in handwriting and signature of A.S.I. B. Choudhary which was marked Ext.2. On the basis of this fard beyan, formal F.I.R. was prepared by the officer-in-charge G.N. Mishra. He identified his signature over the same which was marked Ext.3. He also recorded the re-statement of Sohan Yadav and also recorded the statements of Bal Binod Jha, Shivlal Manjhi and also recorded the statement of injured Ramdas Mistry at the Sadar hospital Godda. The witness Raj Mahal Manjhi had stated to him that he had seen Sohan Yadav and Ramdas Mistry profusing blood. They had told him that Triveni Sharma, Narayan Sharma and Hari Kishore Sharma had assaulted him with the bullet and gandasa. Vinay Kumar Jha also told him that Sohan Yadav was assaulted with firearm. Shivlal Manjhi also stated to him that Sohan Yadav, Baldeo Mistry were having tea. Triveni Sharma, Narayan Sharma, Raj Kishore and Hari Kishore were armed with gandasa, bhala and pistol came and Triveni Sharma shot thrice to Sohan Yadav and Ramdas Mistry was assaulted with gandasa. Baldeo Mistry also stated to him that Sohan Yadav and Ramdas both were having tea, in the meantime, Triveni Sharma, Narayan Sharma, Hari Kishore and Raj Kishore came, Triveni shot thrice to Sohan Yadav. When Triveni Sharma made effort to rescue but he was pushed. Hari Kishore, Narayan and Raj Kishore were also assaulted with gandasa.
In cross-examination, this witness says that when he reached to the house of Laxmi Jha for the first time on that day, in front of the door of the house, he found the door of the room opened. He found empty cartridge, khanti and blood was on the door. The entry of the same was made by him in the case-diary. The blood which was on the door same was not seized by him. No photo was clicked of the same. The empty cartridge was also not sent for chemical examination. There was no mark of the bullet on the wall. No blood was found on the ground. The place of occurrence was identified by the villagers. The villagers told him that Sohan Yadav was notorious criminal. He is not aware whether any charge-sheet was filed against Sohan Yadav, Ramdas Mistry and Baldeo Mistry under Section 3/4 of the Explosive Substance Act. The two groups of Triveni Sharma and Sohan Yadav were active within the limit of Poraiyahat police station. He did not record the statement of Khageshwar Jha and Belu Khirhar.
21. P.W.-9 Dr. Mantu Kumar Tekriwal in his examination-in- chief stated that on 27th May, 1993 he was posted at Sadar Hospital, Godda as C.A.S. On that day he examined Sohan Yadav at 09:05 a.m. and found following injuries :
“(i). A lacerated wound 2” x 1½” x ¼” with blackening of surrounding skin at the outer aspect of middle third of right forearm.
(ii). A lacerated wound 3”x ½”x ¼” at the upper third of right arm at deproyed prominence.
(iii). A lacerated wound ½”x ½” x ¼” at the prominence on right shoulder.
(iv). Multiple tiny bleeding spot with evidence of charring on right side of face upper half.
All the injuries were caused by firearm. Nature of injury no.i,
ii and iv are simple and regarding nature of injury no.iii opinion was reserved for x-ray report. Supplementary report of Sohan Yadav is that after x-ray there was hair line fracture of the right clavical, therefore, nature of injury no.iii is grievous.
On the same day he also examined Ramdas Sharma at 12 noon and found following injuries :
i. An incised wound 3” x ¼” x ½” at the forehead of left side.
ii. Incised wound 1 ½” x 1” x ½” at the forehead of right side just above eye brow.
iii. Incised wound 2” x ½” x ½” at the left frontal area.
iv. Incised wounds 2” x ½” x ½” and 4” x ½” x ½” at the right temporal area.
v. Incised wound 3” x ½” x ½” at the left parietal area.
vi. Incised wound 2” x ½” x ½” at the vertex.
vii. An incised wound long internal in direction 4” x ½” x ½” at the right parietal area.
viii. An incised wound 2” x ½” x ½” at the right of left thumb.
ix. An incised wound at the interior fold of right size ½” x ½” x ½”.
x. An incised wound over middle finger left size ¼” x ¼” x ¼”.
xi. An incised wound over left ring finger size ½” x ½” x ¼”.”
Nature of injury regarding injury nos.(i) to (vii) opinion was reserved till x-ray report of nature of injury no.viii to 9 were simple in nature. After x-ray report on the basis of x-ray report injury nos.(i) to (vii) were found simple. Time since occurrence within six hours.
Injury report and supplementary injury report of Sohan Yadav is marked Ext.4 and 4/a while the injury report and supplementary injury report of Ramdas is marked Ext.4/b and 4/c.
In cross-examination, this witness says that injury nos.(i), (ii) and (iv) of Sohan Yadav are superficial and he cannot say whether injury no.3 was caused by bullet or pellet. Two injuries were also superficial. There was only hair line fracture. All the injuries of Ramdas were simple in nature. He had not mentioned the shape of injury. All the injuries were caused by sharp cutting weapon.
22. On behalf of the prosecution examined nine witnesses and among them P.W.-4 Ram Das Mistry is the injured eye-witness and victim of the occurrence and P.W.-7 Sohan Yadav is also the injured eye-witness (victim) of the occurrence. P.W.-4 Ram Das Mistry in his statement stated that on the date of occurrence he had reached to the house of Baldeo Mistry. He on the date of occurrence reached to the house of Baldeo along with Sohan Yadav. Belu Khirhar and Baldeo Mistry were also there. Baldeo Mistry asked them to have tea, at the same time Triveni opened fire upon Sohan Yadav which hit on his right hand, arm and shoulder while he was making effort to flee away. Hari Kishore Sharma had assaulted him with dagger on his right temple, eye while Raj Kishore Sharma also hurled bomb which did not hit him, rather it exploded on the ground. He identified all the accused persons present in the dock.
In cross-examination, this witness stated that the house wherein the Baldeo Mistry was residing was of Laxmi Jha which was under supervision of Baldeo Mistry. The boundary wall of the house of five feet high and there is three rooms, one verandah and courtyard in the house and the exit door was towards the north. He further stated that while they were sitting in the courtyard at that time Belu Khirhar, Khageshwar Jha, Baldeo Mistry, Sohan Yadav and he himself was also there. Firstly, Triveni intruded in the house and he had two pistols in his both hands. He opened fire at the distance of two to three hand. He had shot thrice and third bullet hit on the shoulder of Sohan Yadav while he was fleeing away. First and second bullet also hit him. Khageshwar fled away from there. Baldeo caught hold of Triveni. In the meantime, Sohan fled away scaling the wall.
So far as the testimony of P.W.-7 Sohan Yadav is concerned, this witness is also the injured eye-witness and victim of the occurrence. He stated that he had gone to house of Baldeo Mistry at Basantpur to prepare his thatch. Baldeo Mistry resided in the house of Laxmi Jha. He was having tea with Baldeo Mistry, in the meantime, Khageshwar Jha, Belu Khirhar and Ramdas Mistry also came there. Thereafter, Triveni came there and he shot fire, first bullet hit to his right arm and another on the upper arm. Narayan Mistry, Hari Kishore Mistry and Raj Kishore Mistry also came there and when he was fleeing away from there Triveni again fired which hit on his shoulder. Bomb was also hurled by Raj Kishore and Hari Kishore which did not hit him. Narayan Mistry was armed with gandasa. He was rushed to hospital and his fard beyan was recorded there which was marked Ext.2. He identified the accused persons.
In cross-examination, this witness stated that there were three rooms in the house of Laxmi Jha, wherein Baldeo Mistry resided. The boundary wall of this house was five feet high. He, Ramdas, Baldeo, Khageshwar and Belu Khirhar were sitting in the courtyard. First of all, Triveni intruded in the house, thereafter, all the accused came there. Firstly, Triveni shot twice and both bullets hit him and when he was fleeing away, the third bullet was also fired which hit on his shoulder. When the fires were opened, Khageshwar, Belu, Ramdas and Baldeo also fled from there.
P.W.-4 Ramdas Mistry and P.W.-7 Sohan Yadav both are the injured eye-witness and are the victim of the occurrence. As per the testimony of these witnesses, Sohan Yadav was inflicted firearm injury by Triveni Sharma while the other accused Raj Kishore and Hari Kishore are alleged to hurl the bomb, which did not hit him. As per testimony of both the witnesses, it was Triveni Sharma, who had inflicted three firearm injuries to Sohan Yadav. As per statement of Sohan Yadav, Narayan Mistry was armed with gandasa. Raj Kishore Sharma and Hari Kishore Sharma both were the sons of Narayan Mistry, who were also present there. P.W.-4 Ramdas in his statement stated that Hari Kishore Sharma was armed with dagger. He stated that Hari Kishore Sharma assaulted him with dagger on his temple eye and he also stated that Raj Kishore Sharma had hurled the bomb which was exploded at the ground and another bomb did not exploded. He also stated that Hari Kishore also held him, so he could not flee away from there. Hari Kishore had assaulted him.
The testimony of these two witnesses are also corroborated with the medical evidence.
P.W.-9 Dr. Mantu Kumar Tekriwal has proved the injury report and supplementary injury report of Sohan Yadav as Exts.4 and 4/a in which he stated that there were following injuries:
“(i). A lacerated wound 2” x 1½” x ¼” with blackening of surrounding skin at the outer aspect of middle third of right forearm.
(ii). A lacerated wound 3”x ½”x ¼” at the upper third of right arm at deproyed prominence.
(iii). A lacerated wound ½”x ½” x ¼” at the prominence on right shoulder.
(iv). Multiple tiny bleeding spot with evidence of charring on right side of face upper half.
Injury nos.i, ii and iv were simple and regarding nature of injury no.iii opinion was reserved for x-ray report. As per
Supplementary report the nature of injury no.iii was grievous. So far as injury report of P.W.-4 Ramdas Sharma is concerned, the same is also proved by the P.W.-9 Dr. Mantu Kumar Tekriwal. He proved the injury report and supplementary injury report as Exts.4/b and 4/c. There were following injuries on the body of Ramdas Sharma :
i. An incised wound 3” x ¼” x ½” at the forehead of left side.
ii. Incised wound 1 ½” x 1” x ½” at the forehead of right side just above eye brow.
iii. Incised wound 2” x ½” x ½” at the left frontal area.
iv. Incised wounds 2” x ½” x ½” and 4” x ½” x ½” at the right temporal area.
v. Incised wound 3” x ½” x ½” at the left parietal area.
vi. Incised wound 2” x ½” x ½” at the vertex.
vii. An incised wound long internal in direction 4” x ½” x ½” at the right parietal area.
viii. An incised wound 2” x ½” x ½” at the right of left thumb.
ix. An incised wound at the interior fold of right size ½” x ½” x ½”.
x. An incised wound over middle finger left size ¼” x ¼” x ¼”.
xi. An incised wound over left ring finger size ½” x ½” x ¼”.”
All these injuries were incised wound caused by sharp cutting weapon and all were simple in nature.
23. The testimony of these eye-witnesses which is corroborated with the medical evidence is also corroborated with the testimony of the I.O. P.W.-8 Anand Lal Thakur, who in his examination-in-chief says that on 27th May, 1993 at 12:30, he received the message from the Superintendent of Police, Godda in regard to the said occurrence and reached to the place of occurrence along with police station In-charge G.N. Mishra and armed force. The place of occurrence was the house of Laxmi Jha situated at Basantpur, where Baldeo Mistry had resided as a care taker. This house was made of bricks and thatch as well. It was surrounded by boundary wall and in front of two rooms there was verandah and thereafter a courtyard was in southern side. He found empty cartridge and blood stained khanti. The same were seized by him and seizure memo was prepared in presence of the witnesses which was marked Ext.1 earlier. This witness also proved the fard beyan of the informant which was marked Ext.2 earlier and also proved the F.I.R. which was in the handwriting of G.N. Mishra, police station In-charge which was marked Ext.3. He also recorded the statement of injured Ramdas at Sadar Hospital, Godda and also recorded the statement of Baldeo Mistry. He also recorded the statements of other witnesses.
He stated that witness Shiv Lal Manjhi had stated that Sohan Yadav had told him that while they were having tea at the house of Baldeo Mistry, Narayan Mistry, Triveni Sharma, Hari Kishore Mistry, and Raj Kishore came armed with gandasa and pistol. Triveni Sharma had shot fire thrice while Ramdas Mistry was assaulted with gandasa. Baldeo Mistry had also stated to him that Triveni Sharma, Narayan Sharma, Hari Kishore and Raj Kishore, all the four came and opened fire, whereby Sohan Yadav was injured and he came to rescue and he was also pushed there. Hari Kishore Mistry, Raj Kishore Mistry and Narayan Mistry had assaulted him with gandasa and dagger.
In cross-examination, this witness says that he did not take in his custody the blood stain which was on the door. He further stated that he neither clicked the photograph of the blood stained door nor he had sent the empty cartridge for chemical examination. He did not found the blood on the earth.
Though this witness has neither taken the blood stained clay from the place of occurrence nor clicked the photograph of the blood which was found on the door of the room. Even the splinters of the exploded bombs were not sent for chemical examination but from the statement of this witness, the place of occurrence is the house of Laxmi Jha, wherein the Baldeo Mistry had resided as a care taker.
Further Baldeo Mistry was examined as P.W.-3, though this witness was declared hostile. From the statement of this witness, it is corroborated that the place of occurrence was the house of Baldeo Mistry, as this witness in his examination-in-chief stated that Sohan Yadav and Ramdas Mistry had come to his house five to six months ago in the morning for the wooden work. He had called them to his house. He asked them to have the tea and he went to the toilet and when he came back he found blood at his house and no one was there.
24. The Hon’ble Apex Court in the case of Algarsamy and Others vs. State represented by Deputy Superintendent of Police, Madurai reported in (2010) 12 SCC 427 at paragraphs 44 to 46 has held as under :
“44. As many as 11 witnesses were examined by the prosecution, which included 3 injured witnesses. The evidence of Krishnan (PW 1), Kumar (PW 2) and Chinnaiya (PW 3) was of paramount importance, as they were the injured eyewitnesses. The other eyewitnesses were Moorthy (PW 4), Periyavar (PW 5), Palani (PW 6), Ganesan (PW 7), Yeghadesi (PW 8), Myavar (PW 9), Kalyani (PW 10) and Karuppan (PW 11). We have checked the evidence of these witnesses. Though some of them turned hostile, however, on the basis of the appreciation of these witnesses, the case against the present appellants was accepted by the High Court. With these, we have also considered the evidence of Rajshekharan (PW 47), the investigating officer, who has rightly been believed by the High Court.
45. The evidence of Dr. Venkatachalam (PW 23), who was the Assistant Duty Officer of the Casualty Ward, was also extremely important and provides corroboration to the evidence of Krishnan (PW 1). Much was said against Krishnan (PW 1), who was declared hostile at the fag end of his cross-examination. He was also taken to Chennai to file a writ petition, questioning the correctness of the prosecution. However, the courts below have chosen to rely on part of the evidence. The High Court has noted that his examination-in-chief was recorded on 2-4-2001 and on the same day, he was cross-examined by the three defence counsel. Then only later, on 26-6-2001, when he was recalled, he was treated as a hostile witness. We agree with the comment of the High Court that the witness was tried to be won over after his cross-examination.
46. Much was made about Exhibit D-1, which is the affidavit of Krishnan (PW 1) in the writ petition filed by him, wherein he had stated that he was afraid of the prosecution party. Strangely enough, this affidavit was sworn for the first time after one-and-half year of the incident. Even in his cross-examination on 2-4-2001, he had stated that he was taken and his signatures were obtained under threat. He appears to be a poor villager and his affidavit appears to have been “obtained” and there is much to be stated about this affidavit. The High Court has dealt with it and had chosen to rely on the earlier part of his evidence. The law is now well settled that merely because the witness is declared as hostile witness, whole of his evidence is not liable to be thrown away. We agree with the High Court in its appreciation of the evidence of this witness and the acceptance thereof.”
25. The Hon’ble Apex Court in the case of C. Muniappan and Ors v. State of T. N reported in AIR 2010 Supreme Court 3718 at paragraphs 82 to 84 has held as under :
“82. In State of U. P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766 : (1996 AIR SCW 3468), this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra (2002) 7 SCC 543 : (AIR 2002 SC 3137 : 2002 AIR SCW 3619); Gagan Kanojia and Anr. v. State of Punjab (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U. P. AIR 2006 SC 951 : (2006 AIR SCW 421); Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 : (2007 AIR SCW 6843); and Subbu Singh v. State, (2009) 6 SCC 462 : (2009 AIR SCW 3937).
83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
84. In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.”
26. From the evidence adduced on behalf of the prosecution to reach the conclusion of the offence as has been committed by the accused persons, this Court avert to the provisions of Sections 34, 300 and 307 of the I.P.C. and the settled proposition of law laid down by the Hon’ble Apex Court.
Section 34 of the I.P.C. provides that :
“34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
Section 300 of the I.P.C. provides that :
“300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—
Secondly —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:—
(First)—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) —That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) —That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.— Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.— Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.— It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.— Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Section 307 of the I.P.C. provides that :
“307. Attempt to murder.— Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.— When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
27. The Hon’ble Apex Court in the case of Sarju Prasad v. State of Bihar reported in AIR 1965 SC 843 at paragraph 7 has held as under :
“7. Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in S. 300, Indian Penal Code. For, unless the prosecution discharges the burden the offence under S. 307, I. P. C. cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says the existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention SC845 to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution sushil and the appellant Sarju were lying in wait for Madan Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering anyone who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of any one who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover the incident occurred in broad day light in a chowk which must be a well-frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment.”
28. The Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Kashiram and Others reported in (2009) 4 SCC 26 at paragraphs 11 and 12 has held as under :
11. The evidence of PW 5, the victim clearly shows the gruesome nature of the attack and the intention of the accused persons. According to him, accused Ram Singh and Bapulal caught hold of him. He was laid down on the ground and the accused Krishan Lal chopped off the left foot and Ram Singh caught hold of his left leg and Bapulal caught hold of his right leg, Arjun caught hold of his leg and Krishan Lal kept his legs on his left hand and put clothes in his mouth and caught hold of his head. Leela Krishan said that his foot jaw (sic) has been chopped off and the heels should also be chopped off. Accused Suraj Singh kept his leg on a log of wood and Leela Krishan chopped off his feet by axe from above the ankle. The trial court noticed that the leg was chopped off between the knee and the ankle. Krishan Lal asked Ram Singh to keep the chopped pieces of the leg in the bag and Ram Singh picked up the pieces of the legs and kept them in the bag. Though accused Arjun Singh asked that both his eyes should be taken out, accused Ganga Ram told him that chopping off his one leg was sufficient to cause his death.
12. “11. … Section 307 relates to attempt to murder. It reads as follows:
‘307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.’
12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.
13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
14. This position was highlighted in State of Maharashtra v. Balram Bama Patil [(1983) 2 SCC 28 : 1983 SCC (Cri) 320] , Girija Shanker v. State of U.P. [(2004) 3 SCC 793 : 2004 SCC (Cri) 863] and R. Prakash v. State of Karnataka [(2004) 9 SCC 27 : 2004 SCC (Cri) 1408 : JT (2004) 2 SC 348] .
16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.”
29. The Hon’ble Apex Court in the case of Anjani Kumar Chaudhary vs. State of Bihar and another reported in (2014) 12 SCC 286 at paragraph 10 has held as under :
“10. The scope of Section 307 IPC has elaborately been dealt with by this Court in Mohan case, wherein this Court has taken the view that if anybody does any act with intention or knowledge that by his act he might cause death and hurt is caused, that is sufficient to attract Section 307 IPC. Further, this Court has also taken the view that, in order to attract Section 307 IPC, the injury need not be on the vital part of the body.”
30. The Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Harjeet Singh and Another reported in (2019) 20 SCC 524 at paragraph 5.6.2 and 5.6.4 has held as under :
“5.6.2. This Court in R. Prakash v. State of Karnataka [R. Prakash v. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408] , held that: (SCC p. 30, paras 8-9)
“8. … The first blow was on a vital part, that is, on the temporal region. Even though other blows were on non-vital parts, that does not take away the rigour of Section 307 IPC.
9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.”
(emphasis supplied)
5.6.4. This Court in Jage Ram v. State of Haryana [Jage Ram v. State of Haryana, (2015) 11 SCC 366 : (2015) 4 SCC (Cri) 425] held that: (SCC p. 370, para 12)
“12. For the purpose of conviction under Section 307 IPC, prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.”
(emphasis supplied)
31. In view of provisions of Section 300 and of Section 307 of the I.P.C. as well as the settled proposition of law, laid down by the Hon’ble Apex Court as discussed hereinabove, in the case in hand, from the evidence adduced on behalf of the prosecution it is proved that all the four accused came to the house of Baldeo Mistry, who was residing as a care taker in the house of Laxmi Jha and P.W.-7 Sohan Yadav (the informant and injured) and P.W.-4 Ramdas Mistry (injured and victim) both were sitting at the house of Baldeo Mistry and having tea. As per testimony of these injured eye-witnesses, this Triveni Sharma was armed with pistol in his both hands. Narayan Mistry, Hari Kishore Sharma, Raj Kishore were also armed with gandasa and dagger and bomb as well. First of all, Triveni Sharma opened fire with pistol twice which hit on the fore arm and upper arm of right hand of Sohan Yadav (the inured and victim). When he managed to flee away by scaling the boundary wall which was five feet high, the accused Triveni Sharma again opened fire which hit on the shoulder of Sohan Yadav causing fracture on clavicle. As such, Triveni Sharma, who came with two pistols in his hand and he repeatedly opened fire at Sohan Yadav, though it hit on non-vital part. The injury which was on shoulder was grievous while other two were simple, as per testimony of P.W.-9 Dr. Mantu Kumar Tekriwal. It reflected the intention on the part of Triveni Sharma to cause death of Sohan Yadav by inflicting firearm injuries. Moreover, bullet which was fired from pistol thrice by this accused Triveni Sharma also reflected that he knew that the bodily injury inflicted by him were sufficient in ordinary course of nature to cause death. As such the act of Triveni Sharma comes within the ambit of first and second paragraph of Section 300 of the I.P.C., if the injuries inflicted by the appellant—Triveni Sharma could cause the death of Sohan Yadav. As such his acts comes within attempt to murder under Section 307 of the I.P.C. As such the act of Triveni Sharma was with such intention and knowledge that if by his act of opening fire death would have caused he would have been guilty of the murder.
Further injured eye-witness Sohan Yadav also stated that the bomb was also hurled by Raj Kishore Sharma and Hari Kishore Sharma while he was fleeing away from there. One bomb was exploded and another did not explode. Narayan Mistry was armed with gandasa, therefore, Hari Kishore Sharma and Raj Kishore Sharma both had hurled the bomb, though one was exploded and another did not explode. They also came along with Triveni Sharma and their intention was also to cause murder of the victims i.e., P.W.-4 and P.W.7.
P.W.-4 Ram Das Mistry also corroborated the testimony of P.W.-7 Sohan Yadav and he stated that Hari Kishore has assaulted with dagger on his head at tample eye. Raj Kishore Sharma had hurled bomb over him but it did not hit his body and exploded on the earth which created smoke at the place of occurrence. He also stated that Hari Kishore Sharma also held by his hand, therefore, he could not flee away from there. As per injury report of this witness, P.W.-4 Ram Das Mistry which has been proved by P.W.-9 Dr. Mantu Kumar Tekriwal, there were eleven injuries and all were incised wound. Out of them seven injuries were on vital part of the body of this P.W.-4 Ramdas Mistry which was on the forehead, parietal region, left and right parietal region; while the rest of the four injuries (incised wounds) were on the finger, thumb and ankle. All these injuries were inflicted by the sharp cutting weapon, therefore, as per ocular evidence Hari Kishore, Raj Kishore and Narayan Mistry were also armed with gandasa and dagger. The repeated blow given by them on the vital part of the body also reflected their intention to cause death. They also knew that inflicting all the injuries with the dagger and gandasa on the vital part was likely to cause death. All the four accused armed with pistol, gandasa and dagger came together and also used all these weapons in committing the offence. Though the injuries inflicted were simple in nature but on the vital part of P.W.-4 Ram Das Mistry and the injury to P.W.-7 Sohan Yadav, one injury was grievous and others were simple in nature on the non-vital part of the body, yet the repeated blow given by them with deadly weapons reflected their intention to cause death. Had by their act, the death would have caused they would have been guilty of murder. Therefore, their act come within the ambit of Section 307 read with Section 34 of the I.P.C., as all the accused persons after having committed the offence also fled away together from the place of occurrence.
The weapon with which the accused persons/appellants were armed and the deadly weapons used by them and the thorough conduct of them at the place of occurrence showed the offence of attempt to commit murder.
32. The Hon’ble Apex Court in the case of Surinder Singh v. State of Punjab reported in (2006) 13 SCC 533 at paragraph 12 has held as under :
“12. When the factual scenario is seen the application of Section 34 IPC appears to be inappropriate so far murder of the deceased is concerned. In addition, the appellants were not armed. But the evidence is clear that they restrained movement of the deceased when there was a quarrel. There is, however, no definite evidence that the common intention was murder. But the fact that two co-accused were armed with knife and lathi is of relevance and significance. They came together and left together. That being so, the conviction is altered applying the principle set out above. Appropriate conviction will be under Section 304 Part II IPC read with Section 34 IPC. Custodial sentence of seven years would meet the ends of justice.”
33. The Hon’ble Apex Court in the case of Lallan Rai v. State of Bihar reported in (2003) 1 SCC 268 at paragraph 22 has held as under :
“22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused — though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor.”
34. The Hon’ble Apex Court in the case of Thoti Manohar vs. State of Andhra Pradesh reported in 2012 (78) A.C.C. 511 SC, the Hon’ble Apex Court has held that previous meetings of minds with pre-arranged plan or prior concert is difficult to establish by way of direct evidence. It has to be inferred from the conduct of the accused and the circumstances.
35. The Hon’ble Apex Court in the case of State of Rajasthan vs. Gurbachan Singh and Others reported in 2022 SCC Online SC 1716 at paragraph 12 as held as under :
“12. Given the aforesaid position, we are of the view that Section 34 of the IPC i.e., common intention, is clearly attracted in the case of Gurbachan Singh, whose case cannot be distinguished, so as to exclude him as one who did not share common intention with Darshan Singh, Balvir Singh, and Manjit Singh. Section 34 of the IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 of the IPC to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention.”
36. So far as the I.O., who did not take the blood stained clay from the place of occurrence and despite having seized the empty cartridge and splinters of the bomb did not send the same to SFSL. The latches on the part of the I.O. is not found fatal to the prosecution case as the prosecution case is proved from the testimony of injured eye-witnesses which is well corroborated with the medical evidence and also corroborated with the evidence of the I.O. and hostile witness.
The Hon’ble Apex Court in the case of Dhanaj Singh @ Shera and others vs. State of Punjab reported in 2004 Cri.L.J., 1807 in paragraph nos.5, 6 and 7 has held as under :
“5. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. ( See Karnel Singh vs. State of M.P.: (1995) 5 SCC 518).
6. In Paras Yadav and Ors. v. State of Bihar: (1999) 2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand on the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.
7. As was observed in Ram Bihari Yadav v. State of Bihar and Ors.: (1998) 4 SCC 517, if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. The view as again reiterated in Amar Singh v. Balwinder Singh and Ors.,:(2003) 2 SCC 518. As noted in Amar Singh's case(supra) it would have been certainly better if the firearms were sent to the Forensic Test Laboratory for comparison. But the report of the Ballistic Expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye-witnesses corroborated by the medical evidence fully establishes the prosecution version failure or omission of negligence on part of the IO cannot affect credibility of the prosecution version.”
37. In view of the re-appreciation of the evidence on record, as discussed hereinabove, we are of the considered view that the prosecution has been successful in proving its case against the accused persons for the offence under Section 307 read with Section
34 of the I.P.C. beyond reasonable doubt. Accordingly, the impugned judgment of conviction passed by the learned trial court is affirmed for the charge under Section 307 read with Section 34 of I.P.C. by modifying the conviction as passed by the learned trial court.
38. Accordingly, the impugned Judgment of conviction dated 2nd February, 1994 passed by the 2nd Additional Sessions Judge, Godda in Sessions Case No.170 of 1993/40 of 1993 convicting the aforesaid accused/appellants is, hereby, affirmed as modified hereinabove. The present criminal appeal is, hereby, dismissed.
39. So far as the sentence for the charge proved against the appellants is concerned, the appellants had faced the trial from 16th August, 1993 to 2nd February, 1994 and thereafter the appeal was filed on 1st March, 1994 and the same is pending about 28 years, therefore keeping in view the nature and seat of the injury on the body of the injured persons, the ends of justice would be met if the appellants are sentenced for imprisonment of five years along with fine. Accordingly, each of the appellant nos.1, 2 and 4 are sentenced to undergo rigorous imprisonment for five years along with fine of Rs.5,000/- each and in default of payment of fine, each of the appellant nos.1, 2 and 4 shall have to undergo additional imprisonment for three months. The sentence passed by the learned trial court is also stands modified accordingly.
40. The appellants nos.2, and 4 were granted bail vide order dated 2 nd March, 1994 and appellant no.1 was granted bail vide order dated 19 th September, 1994 during pendency of the appeal, their bail bonds are cancelled and they would surrender before the learned trial court, who would be sent to jail to serve out the sentence.
41. Let the lower court's record be sent to the court concerned forthwith along with a copy of this judgment for necessary compliance.
