Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1516-1517 OF 2004

Amerika Rai & Ors. … Appellants

Versus

State of Bihar      … Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal Nos. 1516 and 1517  

of  2004.   Five  accused  persons  have  filed  these  appeals,  they  being  

Amerika Rai (original accused No. 1), Darbesh Rai (original accused No.  

2), Mithilesh Rai (original accused No. 4), Sanjay Rai (original accused No.  

5) and Sipahi Rai (original accused No. 6).  The appeal of Chulhan Rai  

(original accused No. 3) is already dismissed.  Six accused persons came  

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to be tried for having formed themselves into an unlawful assembly and as  

a common object of that unlawful assembly, having committed murder of  

one Shankar Rai.  Some of the accused persons were also charged with  

the offences under the Arms Act.  All the accused persons were convicted  

for the offence punishable under Section 302 read with Section 149 of the  

Indian  Penal  Code  (IPC),  while  Chulhan  Rai  (A-3)  was  convicted  for  

substantive  offence  punishable  under  Section  302  and  for  offence  

punishable under Section 27 of the Arms Act.  Again, Mithilesh Rai (A-4)  

was also convicted for the offence punishable under Section 307 IPC in  

addition to the offences punishable under Section 27 of the Arms Act and  

Section 302 read with Section 149 IPC.  He was booked for that offence on  

the allegation that he had fired at and injured one Dineshwar Rai (PW-7).  

The appeals of  all  the accused persons were dismissed by Patna High  

Court and that is how the accused persons are before us in the present  

appeals.   

2. The prosecution story is in the short conspectus.  This is a cruel  

murder of a young bridegroom Shankar Rai who was married only a day  

before.   He was put  to death virtually  without  any reason.   As per the  

prosecution story, his marriage was held at village Ishupur, Police Station  

Lalganj,  District  Vaishali.   All  the accused persons appear  to be either  

relations or neighbours of deceased Shankar Rai.  They all had joined the  

bridegroom party and were present at the time of marriage.  It is alleged  

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that at the time of function of “Dwarpuja”, there was some altercation in  

between the members of bride party on one side and bridegroom’s on the  

other.  It is alleged that the brother of the informant Dineshwar Rai was  

assaulted  by  the  members  of  the  bride  party  and  in  retaliation,  the  

informant also attacked some members of the bride side.  Further, when  

one of the accused persons Sanjay Rai (A-5) was going back to Janmasa  

(the place where  the bridegroom’s party stays during the marriage),  he  

was assaulted by some boys of the village.  However, the marriage was  

solemnized.  The party of the bridegroom returned to their village alongwith  

bride, and alongwith them, the brother-in-law of the bride accompanied as  

per the custom.  On the next day, at about 11’o clock in the morning, when  

the said brother-in-law, namely, Ram Babu (PW-6) was going for rest after  

taking meals, the accused persons, namely, Amerika Rai (A-1), Darbesh  

Rai (A-2), Chulhan Rai (A-3), Mithilesh Rai (A-4),  Sanjay Rai (A-5) and  

Sipahi  Rai  (A-6)  assaulted  him  with  fists  and  slaps.   When  this  was  

objected  to,  a  quarrel  ensued.  At  that  very  time,  Amerika  Rai  (A-1)  

exhorted and as a result, Chulhan Rai (A-3) brought a licensed gun and  

fired 6/7 rounds at Shankar Rai.  He fell down injured.  In the meantime,  

Mithilesh  Rai  (A-4)  fired  3/4  rounds  from  his  gun  causing  injury  to  

Dineshwar Rai (PW-7) who was none else but the brother of Shankar Rai  

(deceased).  He suffered injuries to his hand, abdomen and thigh.  At this  

time, Sanjay Rai (A-5) and Sipahi Rai (A-6) also opened fire from their  

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pistols.  Darbesh Rai (A-2) was present with a lathi.  Injured Shankar Rai  

was removed to the State dispensary,  Parsa, where he died during his  

treatment.  Dineshwar Rai (PW-7) was also treated.  The incident, having  

taken place in the broad day light, was witnessed by number of persons  

including  the  villagers.   Dineshwar  Rai  (PW-7)  reported  the  matter  on  

26.6.1995 at 4.15 pm to the Officer-in-charge of Dariyapur Police Station.  

This was done in the State dispensary.  FIR was drawn up by Dariyapur  

Police Station vide case No. 76/95 and the offences were registered under  

Sections 302, 307, 324 read with Section 34 IPC and Section 27 of the  

Arms Act.  The chargesheet was filed and the matter was committed to  

sessions.  All the accused abjured their guilt.

3. In  support  of  the  prosecution,  as  many  as  12  witnesses  were  

examined  including  the  eye-witnesses,  the  police  witnesses  and  the  

doctors.

4. Some  of  the  witnesses  like  Dineshwar  Rai  (PW-7)  who  was  an  

injured witness, Ram Babu (PW-6), Dhaneshwar Rai (PW-1), Sheo Nath  

Rai (PW-2), Ramesh Rai (PW-3) and Ram Bhawan Rai (PW-4) supported  

the prosecution version.  However, some other witnesses like Wakil Rai,  

Virendra Rai and Dina Pandit did not support the prosecution.  Relying on  

their  evidence,  the  trial  Court  firstly  came  to  the  conclusion  that  the  

accused  persons  formed  themselves  into  an  unlawful  assembly  and  

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indiscriminately fired at Shankar Rai (deceased) and Dineshwar Rai (PW-

7) and caused murder of Shankar Rai and attempted to murder Dineshwar  

Rai (PW-7).  However, it is only Mithilesh Rai (A-4) who is booked for the  

offence punishable under Section 307 IPC on the ground that he was the  

only person who fired at Dineshwar Rai (PW-7) and injured him seriously.  

The trial Court has also discussed the whole medical evidence as well as  

the evidence of the eye-witnesses and convicted all the accused persons.  

The appeals of the accused persons before the High Court failed and that  

is how the matter is before us.

5. The learned counsel  appearing on behalf  of  the accused persons  

firstly urged that the role of Amerika Rai (A-1) and Darbesh Rai (A-2), as  

attributed to them by the prosecution witness, itself  suggests that these  

two accused persons did  not  use any fire  arms.   The learned counsel  

further urged that Amerika Rai (A-1) was merely standing and at the most,  

it could be said that he exhorted for bringing the guns; however, even that  

could not be said in respect of Darbesh Rai (A-2) who was merely standing  

in the door with a lathi.  The learned counsel were at pains to point out, by  

reference to evidence, that Darbesh Rai (A-2) did not in any manner either  

assault the deceased or take part in the whole affair.  The learned counsel,  

therefore, urged that at least insofar as Amerika Rai (A-1) and Darbesh Rai  

(A-2) are concerned,  they could not  be said to be the members of  the  

unlawful assembly.  The learned counsel appearing on behalf of Sanjay  

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Rai (A-5) and Sipahi Rai (A-6) pointed out that though it was suggested  

that these two accused persons fired with their pistols, those pistols are  

nowhere to be found in the whole investigation, as nothing was recovered  

from these two accused persons.  The learned counsel, therefore, urged  

that  it  will  be  difficult  to  say that  these  two persons  either  shared  the  

common intention  or  had  the  common object.   It  was  pointed  out  that  

Sanjay Rai (A-5) and Sipahi Rai (A-6) were not even related to Amerika  

Rai (A-1) and his family or deceased Shankar Rai and his family.

6. There can be no dispute that Shankar Rai died a homicidal death.  

As many as 5 eye-witnesses whose presence was most natural  on the  

spot, have supported the prosecution version regarding the deadly attack  

on Shankar Rai, as also the firing at his brother Dineshwar Rai (PW-7).  

The evidence of the two doctors being Dr. Shradha Nand (PW-8) and Dr.  

Amarnath Jha (PW-10), who conducted the autopsy is sufficient to hold  

that  Shankar  Rai  died  an  almost  instantaneous  death  because  of  

indiscriminate  firing  at  him by Chulhan Rai  (A-3).   It  has already been  

stated  earlier  that  appeal  of  Chulhan  Rai  (A-3)  is  already  dismissed.  

Deceased Shankar Rai had suffered as many as 8 injuries, all attributable  

to the gun shot injuries,  so also the injuries suffered by Dineshwar  Rai  

(PW-7)  were  found  to  be  dangerous  to  his  life,  though  he  ultimately  

survived.   The  question,  however,  is  whether  all  the  accused  persons  

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could be booked with the aid of Section 149 IPC on the ground that they  

were the members of the unlawful assembly having the common object.

7. There can be no dispute that the presence of the accused persons  

on the spot was well established by the five eye-witnesses named above.  

All  the  five  eye-witnesses  who  supported  the  prosecution  have  in  one  

voice deposed to the presence of all these accused persons and the acts  

performed  by  them.   Dineshwar  Rai  (PW-7),  Dhaneshwar  Rai  (PW-1),  

Ram Bhawan Rai (PW-4), Ram Babu (PW-6), Sheo Nath Rai (PW-2) and  

Ramesh Rai (PW-3) are unanimous on the question that Amerika Rai (A-1)  

had ordered to bring the guns.  As many as 4 witnesses being Dineshwar  

Rai (PW-7), Dhaneshwar Rai (PW-1), Ram Bhawan Rai (PW-4) and Ram  

Babu (PW-6) spoke about Darbesh Rai (A-2) standing holding a stick.  All  

these  4  witnesses  also  suggested  that  he  was  instigating.   Insofar  as  

Mithilesh Rai (A-4) is concerned, all the witnesses are unanimous that he  

fired 3-4 rounds with his gun and caused injury to Dineshwar Rai (PW-7),  

so also all  the witnesses are absolutely unanimous in respect of Sanjay  

Rai (A-5) and Sipahi Rai (A-6) to the effect that they were firing with the  

pistols in their hand.  Sheo Nath Rai (PW-2) and Ramesh Rai (PW-3) also  

went  to  the extent  of  saying  that  these two accused persons  fired  2-3  

rounds  of  shots  though  no  injury  was  caused  by  those  gun  shots.  

Therefore,  there can be no doubt  that  all  these accused persons,  who  

were  staying  in  the  nearby  house  of  the  deceased,  had  attacked  the  

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deceased and his brother Dineshwar Rai (PW-7).  There was a definite  

background to this attack which related to the altercation in between the  

bride’s party and bridegroom’s party at the time of marriage and accused  

Sanjay  Rai  having  been  beaten.   It  has  come in  the  evidence  of  the  

witnesses like Dineshwar  Rai  (PW-7) and Ram Babu (PW-7) that there  

was an unpleasant incident of altercation in between the bride’s party and  

bridegroom’s  party  at  the  time  of  Dwarpuja.   It  has  also  come  in  the  

evidence  that  Sanjay  Rai  (A-5),  when  he  was  returning  back  from  

bridegroom’s place on cycle, was beaten.  Therefore, it appears that the  

accused persons had carried a grudge and seeing Ram Babu (PW-6), the  

brother-in-law of Shankar Rai’s bride, there was an instantaneous reaction  

on their part.  It  has come in the evidence that Ram Babu (PW-6) was  

slapped and fisted when he had finished his meals and was going for rest.  

The  presence  of  Ram Babu (PW-6)  acted  as  a  flash  point;  perhaps it  

reminded the accused persons and more particularly, Sanjay Rai (A-5), of  

the insult meted out to them and then the idea of taking revenge emerged.  

What  happened  is  that  deceased  Shankar  Rai  seeing  that  his  wife’s  

relation  was  being  slapped  and  fisted  by  the  accused  persons,  had  

resisted the attempt on the part of the accused persons and that ultimately  

proved to be a raison d’etre of his death.  Therefore, there is no doubt in  

our mind that this was undoubtedly done with a common object of teaching  

lesson to deceased Shankar Rai who had taken – as was expected– side  

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of Ram Babu (PW-6), the brother-in-law of his bride.  What is liable to be  

seen is as to whether there was any active participation and the presence  

of all the accused persons was with an active mind in furtherance of their  

common object.   The law of vicarious liability under Section 149 IPC is  

crystal clear that even the presence in the unlawful assembly, but with an  

active  mind,  to  achieve  the  common  object  makes  such  a  person  

vicariously liable for the acts of the unlawful assembly.  In that light, when  

the evidence is examined, it is obvious that Amerika Rai (A-1) who was the  

elder in the family and father of Darbesh Rai (A-2), Mithilesh Rai (A-4) and  

Chulhan  Rai  (A-3),  instead  of  acting  in  a  responsible  manner  and  

preventing any unpleasant incident, exhorted the accused persons to bring  

the gun.  The guns are normally not  brought for  making a show.  The  

exhortation  to  bring  the  gun  definitely  speaks  about  the  guilty  mind  of  

Amerika Rai (A-1), so also the use of guns by Mithilesh Rai (A-4), Sanjay  

Rai (A-5) and Sipahi Rai (A-6) is very clear that they also had guilty mind.  

Mithilesh Rai (A-4) went to the extent of injuring Dineshwar Rai (PW-7).  

Therefore,  even their  presence and part  played by them was obviously  

pointing towards the common object of committing murder of Shankar Rai.  

Unfortunately, Shankar Rai became the victim of the circumstances.  The  

accused persons had nothing to do with Shankar Rai.  Their main ire was  

directed at Ram Babu (PW-6).  But, perhaps because Shankar Rai took  

side of Ram Babu (PW-6), he became the victim of circumstances and had  

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to pay with his own life.  Therefore, at least insofar as these persons are  

concerned, their presence and their active participation would make them  

guilty under Section 149 IPC, though the author of the injury to Shankar  

Rai was Chulhan Rai (A-3) whose appeal has already been dismissed.

8. However, that canot be said about Darbesh Rai (A-2).  He had been  

given the role of standing in the door of his house with a lathi.  We feel that  

the  evidence  of  the  eye-witnesses  that  he  was  instigating  the  other  

accused persons to fire, appears to be an exaggeration.  He would not  

have kept on standing there holding a lathi had he shared the intention and  

the common object of committing murder of Shankar Rai.  In our opinion,  

the role of Darbesh Rai (A-2), as attributed to by the eye-witnesses, should  

not make him vicariously liable.  We, therefore, grant benefit of doubt to  

Darbesh Rai (A-2) and acquit him.

9. It  was  tried  to  be  suggested,  relying  on  the  defence  witnesses,  

namely, Ajit Kumar Singh (DW-1) and Ram Dhani Chaudhary (DW-2), that  

Chulhan Rai  (A-3)  did  not  have any gun,  as his  gun was  deposited in  

Singh Gun House.  This argument is already rejected by trial and appellate  

Courts and we also endorse the finding.  Insofar as Ram Dhani Chaudhary  

(DW-2) is concerned, he stated that there was a distance of 250 feet in  

between the house of Chulhan Rai (A-3) and deceased Shankar Rai and  

there was a pond in between their houses.  He also found brick bats in  

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front of the house of the deceased and Chulhan Rai (A-3).  Thereby it was  

suggested  that  there  was  exchange  of  brick  bats  between  the  parties.  

That may be so.  However, there is evidence that when Ram Babu (PW-6)  

was going for rest after the meals, he was actually fisted and slapped by  

Amerika Rai (A-1), Darbesh Rai (A-2), Chulhan Rai (A-3), Mithilesh Rai (A-

4),  Sanjay Rai (A-5) and Sipahi  Rai (A-6).   When this was informed to  

Shankar Rai, Shankar Rai came and made enquiry from Chulhan Rai (A-3)  

and then when there was exchange of abuses, the brick batting started  

between  the  parties.   The evidence of  Ram Dhani  Chaudhary  (DW-2),  

S.D.P.O., does not in any manner shake the prosecution case.  It was not  

as if the defence came up with a plea of right of private defence of person  

and property and indeed they could not have done so as they were the  

aggressor party using guns.  We have considered the defence evidence  

also at the instance of both the learned counsel appearing on behalf of the  

defence and we do not find that this evidence would in any manner help  

the prosecution.

10. In short,  there can be no dispute about the formation of  unlawful  

assembly and its common object.  We, therefore, dismiss all the appeals  

excepting that of Darbesh Rai (A-2) who has been granted the benefit of  

doubt.  He shall be acquitted.  All the accused persons are, therefore, held  

guilty and their appeals are dismissed excepting that of Darbesh Rai (A-2)  

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whose appeal is accepted and who is directed to be released forthwith  

unless required in any other matter.  His bail bonds are discharged.   It is  

reported that accused No.1, Amerika Rai is on bail.  He shall be taken into  

custody immediately for serving out rest of the sentence.  His bail bonds  

are cancelled.

………………………………..J. (V.S. Sirpurkar)

………………………………..J. (Anil R. Dave)

New Delhi; February 23, 2011.

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