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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1143 OF 2010

GANGA RAM SAH & ORS. .....APPELLANT(S)

VERSUS

STATE OF BIHAR .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The case of the prosecution, which has been successfully

established before the trial court as well as the High Court, is as

follows:

On  27.06.1983,  a  fardbayan was  given  by  the  informant

Yogendra Narayan Sah alleging that three days ago, the cattle of

Ram  Chandra  Sah,  accused  No.  5  herein  (sole  accused  in

Criminal Appeal No. 285 of 1988 before the High Court) grazed

the paddy field of the informant, which incident was brought to the

knowledge of the villagers by the informant.  It was further alleged

that on 27.06.1983, at about 9 am, he showed grazed field to the

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Panches in the presence of accused No. 5 Ram Chandra Sah.

The Panches advised them not to get involved in an altercation.  It

was further alleged that while the Panches were busy inspecting

the field, accused No. 2 Sita Ram Sah inflicted lathi blow on the

left  leg  and  thigh of  the informant's  brother, Bauku Sah.   The

Panches intervened and assured that the matter will be resolved

shortly.

Further case of the prosecution is that the informant and his

brother returned to their house, whereas Ram Chandra Sah and

Sita Ram Sah rushed to their house.  However, no sooner did the

informant reached his house and was standing south-west of it, all

the  accused  persons  as  well  as  one  Sukhdeo  Sah  (since

deceased),  father  of  accused  Nos.4  and  5,  variously  armed

arrived there.  It was further alleged by the informant that accused

No.5 was armed with gun and others were armed with lathi.  Soon

thereafter,  Sukhdeo  Sah  and  accused  No.1  exhorted  other

accused to assault, whereupon accused No.5 fired two gunshots

hitting  informant's  brother  Ram Udgar  Sah just  at  his  darwaja

(door of the house), thereby causing his death instantaneously on

the spot.  The informant alleged that his brother Ram Udgar Sah

sustained pellet wounds in his chest, neck and mouth.  The other

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accused assaulted the informant with lathi as a result of which the

informant sustained injuries on the right side of the head and right

hand.  The accused persons also assaulted the brother of  the

informant, Uday Chandra Sah with lathi, on account of which he

too sustained injuries on his head and fell on the ground.  Uday

Chandra Sah was then taken to the hospital for treatment.  It was

further  alleged  that  the  accused  persons  fled  away  when  the

informant raised alarm and witnesses Ram Swaroop Yadav, Kapu

Yadav,  Sadhu  Sah  (PW-6),  Dhodhai  Sah  (PW-7),  Bauku  Sah

(PW-2)  and  others  reached  the  place  of  occurrence.   The

informant alleged that the accused persons herein committed the

offence because the informant had chastised them for damaging

his crops.  On the basis of the aforesaid fardbayan, a formal FIR

was drawn for offences under Sections 147, 148, 149, 307, 302,

325, 332 of the Indian Penal Code, 1860 (for short the 'IPC') and

Sections 25A/26 of Arms Act, 1959 being Mahishi P.S. Case No.

33 of 1983 on 27.06.1983 at 6 pm.  On 28.06.1983, Dr. J. Lal

(PW-13) held postmortem on the body of the deceased.  It was

recorded in the postmortem report that on opening the chest, the

upper lobes of both the lungs were found torn with free blood in

both sides of the chest cavity.  The injury was anti mortem, fatal

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and caused by gun shot.   

2. After  investigation,  the  police  submitted  final  chargesheet

implicating all five persons named in the FIR, as accused.  The

trial court framed the charges against them under the aforesaid

provisions.  To prove these charges, the prosecution examined 15

witnesses altogether.  Out of the aforesaid 15 witnesses, Uday

Chandra Sah (PW-1), Bauku Sah (PW-2), Anar Devi (PW-3), wife

of deceased Ram Udgar Sah, Parvati Devi (PW-4), mother of the

deceased,  Ful  Kumari  (PW-8)  and  the  informant  Yogendra

Narayan  Sah  (PW-10)  were  eye-witnesses  of  the  occurrence.

One  of  the  injured,  Sabo  Devi  (PW-9)  did  not  support  the

prosecution case and was declared hostile.  Sadhu Sah (PW-6)

and  Dhodhai  Sah  (PW-7),  both  village  Panches  have  not

supported the occurrence.  They denied to have seen the actual

commission of  occurrence and were declared hostile.   Dr. P.K.

Jha  (PW-11)  examined  the  injured  persons,  namely,  Uday

Chandra Sah (PW-1),  Bauku Sah (PW-2),  Ful  Kumari  (PW-8),

Sabo Devi (PW-9) at Maheshi Hospital on the day of occurrence.

Jugeshwar Singh (PW-12) is the Investigating Officer of this case.

Dr. J.  Lal    (PW-13),  Civil  Assistant  Surgeon,  Sadar  Hospital,

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Supaul held postmortem on the dead body of the deceased.  J.K.

Mishra   (PW-14)  and  Chotelal  Yadav  (PW-15)  are  formal

witnesses.   

3. The defence version of the appellants before the trial court was

that they have been falsely implicated in the P.S. Case No.33 of

1983  as  they  had  lodged  a  complaint  case  against  the

prosecution party bearing No.338(C) of 1983 for an occurrence of

same date under Sections 147, 148, 149, 323, 324, 352 and 380

of the IPC filed against the prosecution party wherein cognizance

has been taken.  As a matter of fact, accused Ram Chander Sah

took  the  plea  of  alibi  saying  that  he  was  being  treated  for

Jaundice by Dr. J.K. Thakur, at Laheriasarai between 24.06.1983

to 10.07.1983 and therefore on the day of occurrence, he was not

present in the village.   

4. On defence side also, eight witnesses were examined.  These

witnesses included one Dr. Gajendra Prasad Thakur (DW-7), a

medical practitioner of Laheriasarai.  After the trial was over, the

learned Additional Sessions Judge after analysing the evidence

and material  produced before him came to the conclusion that

charges  against  the  accused  persons  had  been  satisfactorily

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proved by the prosecution.  Ram Chandra Sah was sentenced to

undergo rigorous imprisonment for life for the offence punishable

under Section 302 IPC and rest of the accused persons were also

sentenced  to  undergo  rigorous  imprisonment  for  life  for  the

offence punishable under Section 302/109 IPC.   

5. Against  the  aforesaid  conviction,  these  accused  persons  had

preferred two criminal appeals which were heard together by the

High Court and have resulted in dismissal, since the High Court

has affirmed the conviction and sentence recorded by the trial

court.   

6. Two special leave petitions were filed against the judgment of the

High Court.  Four accused filed one petition and Ram Chandra

Sah filed another  special  leave petition.   On 16.11.2009, while

notice was issued in the special leave petition filed by the four

accused  persons,  the  petition  of  Ram  Chandra  Sah  was

dismissed in limine.  In this manner, insofar as conviction of Ram

Chandra Sah is concerned, that has attained finality.  Leave was

granted in the other special leave petition on 13.05.2010 which

was converted into the instant  appeal  i.e.  Criminal  Appeal  No.

1143 of  2010.   During  the  pendency  of  this  appeal,  appellant

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Nos.2 and 4 i.e. Sita Ram Sah and Jagdish Sah have passed

away and, therefore, appeal qua them stood abated.  In these

circumstances, we heard the appeal of the other two appellants,

namely, Ganga Ram Sah and Pitambar Sah.   

7. Mr. Nagendra Rai,  learned senior  counsel  appearing for  these

appellants,  submitted  that  allegation  against  Ganga  Ram  Sah

was  that  he  had  given  orders  and  exhorted  others  to  assault

whereupon Ram Chandra Sah shot at Uday Chandra Sah.  This

was the only role attributed to Ganga Ram Sah but the same was

not  proved  inasmuch  as  four  eye-witnesses,  namely,  PW-3,

PW-4, PW-8 and PW-9 did not make any such assertions in their

depositions.   Insofar  as  appellant  No.  3  Pitambar  Sah  is

concerned, Mr. Rai has submitted that no role is attributed to him

in  the  FIR  and  because  of  previous  animosity  between  the

parties, he had been falsely implicated.    

8. We are not convinced with the aforesaid arguments.  It may be

mentioned that the FIR was registered on the basis of fardbayan

given by the informant Yogendra Narayan Sah immediately after

the incident.  There is no time lag between the incident and the

FIR.  In the said FIR, both appellant Nos. 1 and 3 are specifically

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named.   Insofar  as  appellant  No.1  is  concerned,  specific

allegation  is  made  in  the  FIR  that  it  was  the  exhortation  of

appellant  No.1  which  led  to  the  said  assault.   Accused  Ram

Chandra Sah fired two gun shots hitting Ram Udgar Sah (brother

of  the  informant)  which  caused  instant  death.   Two  other

eye-witnesses,  namely, PW-1 and PW-2 have  also  specifically

given the statement to this effect, thereby supporting the version

of  the  prosecution.   These  witnesses  were  cross-examined  at

length  but  their  testimony  could  not  be  shaken.   Presence  of

Ganga Ram Sah at the scene of occurrence has not been denied.

The role  attributed to  him,  therefore,  stands  proved,  as  rightly

held by the trial court as well as the High Court.   

9. It has to be borne in mind that all these persons are convicted

under Section 149 of IPC as well.  It has also to be borne in mind

that appellant Nos. 1 to 4 are closely related.  In fact, appellant

No.  4 Jagdish Sah (since dead)  was father  of  the other  three

appellants, namely, Ganga Ram Sah, Sita Ram Sah (since dead)

and Pitambar Sah.  The reason for causing murder of one person

and  injuring  other  persons,  all  of  whom  were  related  and

belonged to the rival group, is obvious as stated in the FIR itself.

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A dispute had arisen between the two groups three days before

the date of incident in question, which incident was brought to the

knowledge of  the  villagers  by  the  informant  and  Panches had

advised both the groups not to involve in any altercation.  It is the

specific case of the prosecution that while the Panches were busy

inspecting the field, Sita Ram Sah inflicted  lathi blow on the left

leg and thigh of Bauku Sah (brother of the informant).  The matter

could be resolved with the intervention of  Panches.   However,

when informant and his brother returned to their house, convicts

Ram Chandra  Sah  and  Sita  Ram Sah  along  with  four  others

came  there,  armed  with  weapons.   Ram  Chandra  Sah  was

holding  a  gun  whereas  other  accused  persons  were  carrying

lathis.  At that stage, appellant No.1 Ganga Ram Sah exhorted

other appellants to  charge the members of the other group.  It,

thus, becomes clear that all these appellants had come with clear

motive in  mind to bodily  harm the members of  the informant's

family  and  with  common  objective.   A calculated  action  was

spearheaded.  All the accused persons were very well aware of

the  consequence of  this  action.   The  Courts  below, therefore,

rightly held that ingredients for the offence under Section 149 also

stood  proved.   In  that  event,  both  these  appellants  are  also

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equally  liable  for  the  consequence  of  causing  murder  of  Ram

Udgar Sah and attempt to murder other victims.   

10. We  may  mention  here  at  this  stage  that  Mr.  Nagendra  Rai,

learned senior counsel appearing for the appellants, had made a

fervent plea to the effect that offence under Section 149 IPC was

not proved inasmuch as there was no clear finding recorded by

the courts below regarding the nature of common object and that

the object  was unlawful.   For  this  purpose,  he referred to  the

judgment of  this Court  in  Bhudeo Mandal & Ors.  v.  State of

Bihar1 wherein the Court has held that before convicting accused

with the aid of Section 149, the Court must give clear findings

regarding the nature of common object and that the object was

unlawful and that in the absence of such findings, offence under

Section 149 IPC cannot be held to be proved.  In that case, the

Court held that mere fact that the accused persons were armed

would not be sufficient to prove the common object.  In the instant

case,  however,  as  already  described  above,  there  is  a  clear

finding about the common object and calculated/concerted action

in furtherance of the said object.    

1 (1981) 2 SCC 755

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11. Mr. Rai  also referred to the judgment  in  the case of  Thakore

Dolji Vanvirji & Ors.  v.  State of Gujarat2 and specifically read

out the following discussion contained therein:

“3.  …Now  the  question  is  whether  all  the accused  would  constructively  be  liable  for  an offence of murder by virtue of Section 149 IPC. So  far  A-1  is  concerned,  it  is  the  consistent version of  all  the eyewitnesses that he dealt  a fatal  blow  on  the  head  with  a  sword  and  the medical  evidence  shows  that  there  was  a fracture of  skull  and the blow must have been very forceful because even the brain was injured. Therefore,  he  was  directly  responsible  for  the death of the deceased and the High Court has rightly  convicted  him  under  Section  302  IPC. Now coming to the rest of the accused, all  the eyewitnesses have made an omnibus allegation against  them.  Even  A-2,  according  to  the eyewitnesses, gave only one blow and that the remaining  accused gave stick  blows.  All  these injuries were not serious and were simple. The injury attributed to A-2 was on the cheek and the doctor did not say that it caused any damage. So it must also be held to be a simple injury. Then we find  only  a  bruise  and an  abrasion on the right arm and some bruises on the back. These injuries  did  not  result  in  any  internal  injuries. There was not even a fracture of rib. Therefore they must also be simple injuries. It is only injury No.  1  which  was  serious  and  proved  fatal. Therefore the question is  whether under these circumstances  common  object  of  the  unlawful assembly  was  to  cause  the  death  of  the deceased  and  whether  every  member  of  the unlawful assembly shared the same? No doubt Section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring  the  common  object,  various circumstances  also  have  to  be  taken  into

2 1993 Supp (2) SCC 534

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consideration.  Having  regard  to  the  omnibus allegation, we think it is not safe to convict every one  of  them  for  the  offence  of  murder  by applying  Section  149  IPC.  On  a  careful examination of the entire prosecution case and the  surrounding  circumstances,  we  think  the common  object  of  the  unlawful  assembly  was only to cause grievous hurt. But A-1 acted in his own  individual  manner  and  caused  one  injury with the sword which proved fatal.”

12. The  aforesaid  discussion  is  in  the  context  of  evidence  that

emerged in the said case wherein the Court found, as a fact, that

the  common  object  of  unlawful  assembly  was  only  to  cause

grievous hurt. Thus, in that case, when common object to commit

murder was not established and the Court found that apart from

the primary accused (A-1) who had inflicted a fatal blow, there

were  omnibus  allegations  of  involvement  qua  other  accused

persons, it was not safe to convict other persons under Section

302 with  the aid  of  Section 149 of  IPC.   The situation,  in  the

present case, is altogether different.  Here the accused persons

had gone to the house of the complainant fully armed with gun

and lathis.  This visit was preceded by a scuffle which had taken

place just before that.   One person was carrying gun whereas

others were armed with  lathis.   The moment they reached the

house  of  the  complainant,  who  was  there  with  his  family

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members,  appellant  No.1  directed  others  to  attack  the  victims

party.  On this exhortation, Ram Chandra Sah pulled his gun and

shot twice at Ram Udgar Sah.  Other accused persons started

assaulting  Uday  Chandra  Sah  who  sustained  wounds  on  his

chest, neck and face.  They also assaulted the complainant as

well  his  brother  Uday  Chandra  Sah  with  lathis.   Complainant

sustained injuries on the right  side of the head and right  hand

whereas Uday Chandra Sah sustained injuries on his head and

had to be carried to hospital for treatment.  All  these acts and

events  taken  together  proved  beyond  doubt  that  the  common

object of the unlawful assembly was not only to cause grievous

hurt but to kill the members of the opposite camp.  The aforesaid

judgment, therefore, does not apply to the facts of this case.

13. It is trite law that the common object of the unlawful assembly has

to be inferred from the membership, the weapons used and the

nature of the injuries as well as other surrounding circumstances.

Intention of members of unlawful assembly can be gathered by

nature, number and location of  injuries inflicted.   In the instant

case,  repeated  gun  shots  fired  by  Ram  Chandra  Sah  on  the

person of deceased Ram Udgar Sah, and the injuries caused by

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lathis by  other  accused  persons  on  the  complainant  and  his

second brother on their heads, clearly demonstrate the objective

to cause murder of these persons.  We, thus, do not find merit in

this appeal which is, accordingly, dismissed.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; JANUARY  27, 2017.

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