LexLALLAN RAJ AND ORS. versus STATE OF BIHAR
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A B LALLAN RAJ AND ORS. v. ST A TE OF BI HAR NOVEMBER 14, 2002 [UMESH C. BANERJEE AND B.N. AGRA WAL, JJ.) Penal Code, 1860; Sections 302, 302134, 3021149, 307134 and 326134: 14 accused persons assaulted and committed murder of the deceased- C Conviction of accused persons under Section 302-Correctness of-Held: In the absence of evidence as to who caused fatal injury, conviction under Section 302 alone is not sustainable-On facts, accused persons by their concerted action participated in the crime and committed murder by assaulting the deceased with deadly weapons-Thus sentencing of accused under Section 302 could be maintained by adding Section 34-Code of Criminal Procedure, D 197 3-Section 464. Conviction under Section 307134-Correctness of-Held, since factum of causing grievous hurt established conviction required to be altered to under Section 326134. E Evidence Act, 1872: F Evidence of eye-witnesses-Evidentiary value-Held, since evidence of injured eye-witnesses recorded immediately after the incident, and having regard to the corroborative evidence available on record, their evidence trustworthy. According to the prosecution, on the day of Holi festival when PW9, along with his brothers including the deceased, was returning from market and reached the village at night, they found 14 persons armed with weapons sitting at the house of the appellant and on his instigation they encircled the deceased and his brothers and assaulted them with deadly G weapons and committed murder of one of them and injured others. PW9 lodged an FIR. Post-mortem was conducted. The case was committed to the Court of Session. Trial Court held all the 14 accused persons guilty of murder and H convicted and sentenced them under Section 302/149 IPC; 7 of them under 188 LAL LAN RAJ v. STATE OF BIHAR 189 Section 302 IPC and 5 of them under Section 307/34 IPC. On appeal, High A Court confirmed the conviction and sentence of 6 accused persons under Section 302 IPC but it acquitted one of the accused of the charge under Section 302 IPC and also confirmed conviction of 5 accused persons u/s 307/34 IPC, however, it acquitted all t:1e accused persons of the charges under Section 302/149 IPC. Hence this appeal by the convicted accused. B It was contended for the appellant that since High Court acquitted all the accused persons of the charges under Section 3021149, conviction of accused for their individual acts under Section 302 is not in accordance with law; that similar intention may not be equated with common intention in regard to participation of accused in the crime. C Disposing of the appeals, the Court HELD: I. It is well settled that culpable homicide is genus and murder is th~ species and that all murders are culpable homicide but not vice-versa. A combined reading of the provisions in Chapter XVI of IPC D with re~pec:t to offences affecting the human body and the exceptions and illustrations would show that without ascertaining as to who caused the death or that one of the many injuries inflicted by a certain person alone was the cause of death, no one can be, much less a number of persons together, be convicted for their acts under Section 302 IPC simpliciter. More than one person together can be convicted only with the aid of E Section 149 IPC (if their number is more than five) or Section 34 IPC if they act in furtherance of common intention. Since the appellants, however, are acquitted under Section 302/149 IPC, the High Court could not have convicted as many as six persons under Section 302 IPC. The requirement of statute is sharing the common intention upon being present F 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. [196-D-F; 198-G, HJ Mohan Singh v. State of Punjab, [1962) Supp. 3 SCR 848, follllwed. G Suresh and Anr. v. State of UP., [2001) 3 SCC 673 and Ghosh v. King Emperor, AIR (1925) PC 1: 26 Cri. LJ 431, relied on. 2. In the instant case, High Court has rendered the submissions of the defence as regards the witnesses being on inimical terms as totally H 190 SUPREME COURT REPORTS [2002) SUPP. 4 S.,C.R. A hypothetical guesswork de hors the realities. Incidentally, the evidence of PWs.7, 9 and 10, stand out to be in full corroboration of the prosecution's case that n
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