NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1382­1384 OF 2014

Bal Mukund Sharma @ Balmukund Chaudhry  Etc., Etc.     .....Appellants

Versus

The State of Bihar                            .....Respondent

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

The common judgment dated 23.05.2013 passed by the

High Court of Judicature at Patna in Criminal Appeal Nos.

221/1990, 225/1990 and 239/1990 confirming the judgment of

conviction dated 11.06.1990 and sentence dated 12.06.1990

passed by the 7th  Additional Sessions Judge, Bhagalpur is

questioned in these appeals.   

2. The case of the prosecution in brief is that while the

informant, Meghu Pandit, PW2 was carrying soil that he had dug

from a Gairmajarua land lying to the north of his house for the

purpose of manufacturing earthen pots along with his wife, the

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fifteen accused accosted them in a group; hence, PW2 and his

wife ran away towards their house out of fear, but were chased

even to their house. The accused Brahamdeo Chaudhry also fired

three gunshots in the air, and threatened to kill any villager who

came  forward.  The  informant,  PW2 and his  wife  hid in their

house and closed the doors, whereafter the aforesaid members of

the unlawful assembly unsuccessfully tried to enter PW2’s house

by breaking the doors and also set part of it on fire.  It is further

alleged that all the accused caught hold of PW2’s nephew,

Ambika Pandit, who was working in his own field nearby, and

dragged him away to another field, where the accused

Brahamdeo Chaudhry shot Ambika Pandit with a gun, who died

on the spot.   According to the informant, he had seen the

occurrence after coming out of his house.  After the deceased was

shot, the villagers raised a hue and cry and rushed to his field,

upon  which the accused  Brahamdeo  Chaudhry and  Kapildeo

Chaudhry opened fire, on account of which Shanti Devi, Subhash

Sao, Wakil Yadav and Kokai Sao also suffered injuries.   

3. The  Courts  below convicted the  accused  Brahamdeo  and

Kapildeo Chaudhry for the offences under Sections 302 and

302/149 of the Indian Penal Code (in short “IPC”) respectively,

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and further under Sections 436/149, 148 and 307/34, IPC, and

Section 27 of the Arms Act.   The rest of the accused  were

convicted under Sections 302/149, 436/149 and 148, IPC.

Additionally, the accused Anil Chaudhry,  Bhavesh  Chaudhry,

Babulal Chaudhry and Mahendra Rai were convicted under

Section 323/34, IPC.

4. PWs 1 to 7 and 9 are the eye­witnesses to the incident in

question, out of which PWs 3, 4, 5 and 6 are the injured eye­

witnesses.  Among  them, PWs 3 and 6 sustained only  simple

injuries, whereas PWs 4 and 5 sustained both simple and

grievous injuries.  Though PW2, the informant was chased by the

unlawful assembly, leading him to hide along with his wife in his

home, no injury was sustained by him or his wife.  

5. Shri Arvind Verma, learned senior Advocate taking us

through the material on record, contended that the Trial Court

and the High Court were not justified in convicting all the fifteen

accused for the offences punishable under Section 302, IPC with

the help of Section 149, IPC.  The argument of the learned senior

counsel for the accused was that at the most the Trial Court and

the  High  Court could  have convicted the  accused  Brahamdeo

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Chaudhry who shot the deceased to death, under Section 302,

IPC and five of the accused, namely  Mahendra  Rai, Babulal

Chaudhry, Bhavesh Chaudhry, Kapildeo Chaudhry and Anil

Chaudhry, for other offences that they committed, inasmuch as

common object for the offence of murder was not proved against

them. It  was further  argued  that the remaining  nine  accused

should not have been convicted for any of the charges levelled

against them. This was because there was no credible evidence in

this respect, no specific overt act whatsoever had been attributed

to them, and it was highely likely that they had been implicated

only by virtue of being close relatives of the accused Brahamdeo

Chaudhry.

On the other hand, Shri Devashish Bharukha, learned

counsel appearing for the State argued in support of the

judgments of the Trial Court and the High Court.

6. We have carefully considered the evidence of PWs 1 to 7 and

9, who were the eye­witnesses to the incident.  Rather than quote

them in their entirety, we find it necessary to discuss only those

aspects of their respective depositions that pertain to the roles

attributed to the various accused.

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PW1, a cousin of the deceased, deposed to seeing the

informant  PW2 and  his  wife get  accosted  by  a  mob of  20­25

persons. On being threatened, these two persons ran away and

hid within their house. The accused unsuccessfully tried to force

their way in, and the accused Mahendra and Babulal set fire to

the  baithak­khana  of  PW2’s  house.  The accused  then dragged

away the deceased from his field to that of the accused

Brahamdeo Chaudhry, who shot the deceased, causing his death.

Several villagers thereafter assembled in the field of the deceased,

seeing which the accused Brahamdeo and Kapildeo opened fire

on the villagers, injuring PW3 Shanti Devi, PW5 Subhash Sao,

and PW6 Wakil Yadav. PW1 also deposed that PW4 Kokai Sao

was shot at  when  he ran to the spot, thinking that  his son

Subhash had been killed, and was assaulted by the accused by

lathi, bhala, sword and gun.  

PW2, the informant, also corroborated the above version. In

particular, he affirmed that the accused Brahamdeo had shot the

deceased, causing his death, and that when the accused

Brahamdeo and Kapildeo opened fire on the villagers, PWs 3, 5

and 6 got injured. He also deposed that subsequently, PW4 Kokai

Shah was assaulted by gun, bat, sword, bhala and lathi. 5

PW7, Jugli Devi, the informant’s wife, also deposed to seeing

the accused Brahamdeo Chaudhry shoot the deceased, causing

his death.   

PWs 3 to 6 are the injured eye­witnesses.   

PW3, Shanti Devi, the cousin sister­in­law of the deceased

also deposed  in a similar  manner as  the  above  eye­witnesses.

She too deposed that the  deceased was killed by  the  accused

Brahamdeo with a gunshot, and corroborated the aspect of firing

upon the villagers, in  which PW5, PW6  and  PW3  herself got

injured.  

PW4 is  Kokai Sao, the father of PW5  Subhash  Sao.  He

deposed that he had reached the spot of the incident while the

accused were dealing with  the body of the deceased, and had

accosted  them thinking that the  body was of  his  son.  At this

point, the accused Brahamdeo fired upon PW4 but missed. He

also deposed that the accused Anil and Bhavesh attacked PW4

with bhalas, the accused Babulal attacked him with a sword, and

the accused Mahendra Rai assaulted him with a lathi.  

PW5, Subhash Sao,  PW4’s son,  deposed that  he saw the

deceased being shot by the accused Brahamdeo with a gun and

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by the accused Kapildeo with a pistol, and that he got injured

along  with PW6  and  PW3 in the subsequent firing  upon the

villagers. He also deposed to seeing the accused Brahamdeo fire

at  his father,  and  the  other  members  of the  mob assault  his

father with  lathis,  bhalas,  and swords.   However,  in his cross­

examination he stated that he did not remember who in

particular had attacked his father, and with what weapon,

though he did affirm that his father had received a bullet injury.

PW6,  Wakil Yadav, too lived in the same locality  as the

deceased.  He testified to seeing the accused  Brahamdeo and

Kapildeo fire at the deceased, and deposed that he, along with

PWs 3 and 5, was wounded in the subsequent firing by these two

accused.   

It may also be noted that out of the six eye­witnesses, only

PW1 and PW3 actually witnessed PW2’s baithak­khana being set

on fire, out of which only PW1 specifically deposed that it was the

accused Mahendra and Babulal who started the fire.

In addition,  PW1 deposed to the presence of the accused

Brahamdeo with a gun, the accused Kapildeo with a pistol, the

accused Babulal and Ashok Rai with swords, the accused Sanjay,

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Pankaj, Sunil, Kishore, Mahendra Rai, Sadanand and Mani with

lathis, and the accused Anil, Balmukund, Manoj, and Bhavesh

with bhalas. PWs 2, 4 and 9 supported the testimony of PW1 as

to which accused were present at the time of the incident, and

bore which weapon. PW4, however,  did not name the accused

Sunil and Mani, and PW9 did not name the accused Balmukund

or attribute specific weapons to the accused Sunil and Sanjay.

PW3 identified only the accused  Brahamdeo and  Kapildeo as

being present at the spot of the incident, and could not speak as

to the presence of any other accused in particular. PWs 5 and 7

generally spoke of the presence of several of the accused, without

attributing any specific weapon to any of them, apart from

attributing  a gun  and  pistol as  being carried  by the  accused

Brahamdeo and Kapildeo respectively. PW6, too, named several

accused,  and generally stated that all the  accused except for

Brahamdeo and Kapildeo were equipped with bhalas,  lathis and

swords.   It  may be noted that PW10, the village  watchman,

deposed to seeing a  mob  of 30­35  persons, out of  whom he

identified the accused Brahamdeo as being present with a gun,

Kapildeo with a pistol, and the accused Babulal, Pankaj, Sanjay,

Mahendra and Anil Chaudhry only.

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Clearly, apart from PW4, who did not witness the incident of

firing upon the deceased or the villagers, the eye­witnesses have

consistently deposed that the accused Brahamdeo shot the

deceased, and he along with the accused Kapildeo fired upon the

villagers, injuring PWs 3 to 6. PWs 4 and 5 additionally stated

that the accused Kapildeo too shot the deceased. PW4 testified to

being attacked by the accused Mahendra Rai with a lathi, by the

accused Babulal with a sword, and by the accused Bhavesh and

Anil with bhalas, and was fired upon but missed by the accused

Brahamdeo.  PWs 2 and 5 also generally deposed that PW4 was

assaulted with various weapons, without naming any accused in

particular. PW5 supported  PW4’s version of being shot at by

Brahamdeo.   Notably,  the Trial  Court excluded PW4’s gunshot

injury as a mere embellishment.

7. Having regard to the material on record, including the

ocular testimony of the witnesses and the evidence of the doctors,

we are of the considered opinion that the Courts below were not

justified in convicting any of the accused other than the accused

Brahamdeo for the offence under Section 302, IPC, by taking the

help of Section 149, IPC. We also find that nine of the accused,

namely,  Balmukund Chaudhry,  Ashok Rai,  Kishore  Rai,  Sunil 9

Chaudhry, Mani Chaudhry, Pankaj Chaudhry, Sanjay Chaudhry,

Manoj Chaudhry and Sadanand Chaudhry  (hereinafter referred

to as “the nine accused”) could not have been convicted for any of

the offences  with  which they  were charged, inasmuch  as the

evidence of the witnesses and other material on record, in our

considered opinion, was not very reliable, and was insufficient to

bring home guilt against them. This is in spite of the fact that

such accused were stated to have been present on or near the

scene of occurrence. Even in respect of the remaining accused

(except for Brahamdeo), the Courts below should not have

convicted them for the offence under Section 302, IPC with the

help of Section 149, IPC, though they are liable to be convicted

for various different offences in which they had actually

participated during the incident in question.

8.   The evidence of the eye­witnesses pertaining to the nine

accused has been adduced to prove that they were part of the

mob that killed the deceased, attacked the villagers and set a

portion of PW2’s house on fire.  However, we find that there  is

nothing on record to show that these accused had actually taken

part in the occurrence or that they had any common object of

committing  murder and rioting  along  with the other accused.

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The evidence  with  respect to their  presence,  participation and

complicity in the incident in its entirety and, therefore, even in

sharing a common object for the commission of any of the acts

that occurred during the incident, is vague, scanty, inconsistent

and  unbelievable, and  necessitates giving them  the  benefit of

doubt.  Thus, these nine accused are liable to be acquitted of all

charges levelled against them.

We are, therefore, of the view that there exists cogent

evidence only as to the role of the accused Brahamdeo Chaudhry,

Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh

Chaudhry and Anil Chaudhry (hereinafter referred to as “the six

accused”) in the incident. All of these six accused participated in

the rioting on the scene of the incident,  in which the accused

Brahamdeo Chaudhry and Kapildeo Chaudhry  were the only

persons having guns at the time, of whom the accused

Brahamdeo suddenly shot at the deceased and the accused

Brahamdeo and Kapildeo shot the injured.  We agree  with  the

finding of the Courts that it  was the accused Brahamdeo who

gave the fatal shot to the deceased. Though there  was some

evidence (i.e. the deposition of PWs 5 and 6) to the effect that the

accused Kapildeo shot the deceased as well, the same was not

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believed by the Courts. We, too, find this evidence insufficient to

conclude that the accused Kapildeo shot the deceased.  

We may now address the aspect of the constructive liability

of the accused Kapildeo Chaudhry, Mahendra Rai, Babulal

Chaudhry, Bhavesh Chaudhry and Anil Chaudhry for the murder

of the deceased.  It is well­settled that to determine whether an

accused, being a member of an unlawful assembly, is liable for a

given offence, it needs to be seen whether such act was

committed in prosecution of the common object of the assembly,

and alternatively  whether the  members  of the  assembly  knew

that the offence was likely to be committed in prosecution of such

common object.  This, in turn,  has to  be  determined  from the

facts and circumstances of each case.   (See  Dharam Pal v.

State of Uttar Pradesh, (1975) 2 SCC 596;  Roy Fernandes v.

State of Goa, (2012) 2 SCC (Cri) 111). In the instant case, it is

evident that the six accused initially accosted the informant,

chased him to his house, and on failing to get a hold on him, set

fire to a portion of his house and caught hold of his nephew, the

deceased, who was done to death by the accused Brahamdeo. It

is thus evident that the murder of the deceased was itself not the

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common object of the unlawful assembly. Moreover, we find that

the act of the accused Brahamdeo of shooting the deceased was

sudden, and knowledge of the likelihood of the same could not be

attributed to the rest of the accused.   Though the other accused

had followed the accused Brahamdeo, in our considered opinion,

the evidence on record and circumstances of this case could not,

conclusively and beyond reasonable doubt, show common object

being  shared  by the  other  accused, in the  commission of the

offence of murder by the accused Brahamdeo. It is no doubt true

that the evidence on record may create grave suspicion in the

mind of the Court about the complicity of the other accused also,

with the help of Section 149, IPC, however, such grave suspicion

cannot take the place of proof.  It is for the prosecution to prove

its case beyond reasonable doubt. Even if the evidence on record

creates suspicion  in the mind of the Court, though grave, the

same would not be sufficient to conclude that the other accused

are liable to be convicted for the offence under Section 302 along

with the accused Brahamdeo, with the help of Section 149, IPC.  

In such circumstances, we are of the opinion that the

accused Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry,

Bhavesh Chaudhry and Anil Chaudhry cannot be said to have

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shared any common object for the murder of the deceased, and

cannot be made liable for the same.   Notably, the Courts have

rightly held only the accused Brahamdeo and Kapildeo liable for

the attempt to murder the injured eye­witnesses by firing upon

them.  However, for the  aforestated reasons, only the  accused

Brahamdeo can be held liable for the murder of the deceased. At

the most, it can be said that the role of the accused Mahendra

Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry

has been proved only insofar as the assault on PW4 is concerned,

through cogent and reliable evidence attributing specific and

overt acts to them.  

We do  not find  any reason  to  disagree  with the reasons

assigned and conclusions arrived at by the Courts in convicting

the six accused for the offence under Section 436/149, IPC, and

other offences for which they have been held guilty, except to the

extent stated supra.  

9. It is  worth  noticing that the  accused Kapildeo  Chaudhry

died during the pendency of the appeals.

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10. Having regard to the totality of the facts and circumstances,

the judgments of the Trial Court and the High Court are to be

modified as under:

a. The conviction and sentence awarded to Brahamdeo

Chaudhry (Accused No. 9) under Section 302, IPC by the

Trial Court and the High Court is confirmed. His

conviction and sentence for other offences as ordered by

the Trial Court and the High Court is confirmed.  

b. Since the accused Kapildeo Chaudhry has already

expired, the appeal filed by him abates.

c. Mahendra Rai (Accused No. 13), Babulal Chaudhry

(Accused No.  12),  Bhavesh Chaudhry (Accused No.  11)

and Anil Chaudhry (Accused No. 14) are acquitted of the

charges under Sections 302 read with Section 149, IPC.

Their conviction for other offences as ordered by the Trial

Court and the  High  Court is confirmed.  However, the

sentence as against them in respect of the offences  for

which they stand convicted is  modified to the period

already undergone by them in jail in this case. If they are

on bail, their bail bonds stand discharged.

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d. The other accused, namely Bal Mukund Sharma @

Balmukund Chaudhry (Accused No. 8), Ashok Rai

(Accused No.7), Kishore Rai (Accused No. 6), Sunil

Chaudhry (Accused No. 4), Mani Chaudhry (Accused

No.1), Pankaj Chaudhry (Accused No. 2), Sanjay

Chaudhry (Accused No. 3), Manoj Chaudhry (Accused No.

15) and Sadanand Chaudhry (Accused No. 5) are

acquitted of the charges levelled against them.  If they are

on bail, their bail bonds stand discharged.   

11. The appeals are allowed in part.

..........................................J. (N.V. Ramana)

............................................J. (Mohan M. Shantanagoudar)

............................................J. (S. Abdul Nazeer)

New Delhi; April 16, 2019.  

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