LexAMERIKA RAI & ORS. versus STATE OF BIHAR
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A B [2011] 3 S.C.R. 176 AMERIKA RAI & ORS. v. STATE OF BIHAR (Criminal Appeal No. 1516-1517 of 2004) FEBRUARY 23, 2011 [V.S. SIRPURKAR AND ANIL R. DAVE, JJ.] Penal Code, 1860 - s.302 r/w s.149 and s.307 - Murder and attempt to murder - Unlawful assembly- Common object C - Vican"ous liability- Allegation that a day after an altercation, at the time of marriage of PW-7's brother, and assault on A- 5, the accused persons slapped and fisted PW-6, the brother- in-law of the bride of PW-l's brother and when PW-l's brother resisted such action, the accused persons indiscriminately D fired at PW-7 and his brother causing grievous injun"es to the former and death of the latter - Conviction by Courts below of the six accused persons - Further appeal of A-3 dismissed by Supreme Court - Appeals by the other five accused - Held: There was a definite background to the attack - The E accused persons had carried a grudge and seeing PW-6, they slapped and fisted him and when PW-l's brother resisted the same he was done to death - Presence of the 5 eye- witnesses was most natural - All of them unanimously stated that A-1 had ordered to bring the guns; that A-4 fired 3-4 F rounds with his gun and caused injury to PW-7, and that A-5 and A-6 fired with pistols in their hand -Therefore, at least insofar as these persons are concerned, their presence and their active participation made them guilty under s.149 /PC, though the author of the injury to the deceased was A-3 whose appeal has already been dismissed - However, that cannot G be said about A-2 - 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 holding a /athi had he shared the intention and the common H 176 AMERIKA RAI & ORS. v. STATE OF BIHAR 177 object of committing murder of the deceased - Therefore, A benefit of doubt granted to A-2 and he is acquitted - Arms Act- s.27. According to the prosecution, a day after an altercation, at the time of marriage of PW7's brother, and 8 assault on A-5, the accused persons slapped and fisted PW-6, the brother-in-law of the bride of PW7's brother and when PW7's brother resisted such action, the six . accused persons formed themselves into an unlawful assembly and as a common object of that unlawful C assembly indiscriminately fired at PW7 and his brother causing grievous injuries to the former and death of the latter. All the accused persons were convicted under Section 302 read with Section 149 of the IPC, while A-3 D was convicted for substantive offence punishable under Section 302 and for offence punishable under Section 27 of the Arms Act. 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 E and Section 302 read with Section 149 IPC. He was booked for that offence on the allegation that he had fired at and injured PW-7. The appeals of all the accused persons were dismissed by High Court. The further appeal of A•3 was dismissed by the Supreme Court. F The instant appeals were filed by the other five accused persons, A-1, A-2, A-4, A-5 and A-6. Dismissing the appeals of all the accused-appellants except A-2, the Court G HELD:1. PW7's brother 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 PW7's brother, as H 178 SUPREME COURT REPORTS (2011) 3 S.C.R. A also the firing at PW-7. The evidence of the two doctors PW-8 and PW-10, who conducted the autopsy, is sufficient to hold that PW7's brother died a11 almost instantaneous death because of indiscriminate-' firing at him by A-3. PW7's brother had suffered as many as 8 B injuries, all attributable to the gun shot injuries, so also the injuries suffered by PW-7 were found to be dangerous to his life, though he ultimately survived. [Para 6] [184-F- H] 2. The presence of the accused persons on the spot C was well established by the five eye-witnesses. All the five eye-witnesses who supported the prosecution in one voice deposed to the presence of all these accused persons and the acts performed by them. PW-7, PW-1, PW-4, PW-6, PW-2 and PW-3 are unanimous on the D question that A-1 had ordered to bring the guns. As many as 4 witnesses being PW-7, PW-1, PW-4 and PW-6 spoke about A-2 standing h
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