RAJAN RAI versus STATE OF BIHAR

Citation: [2005] SUPP. 5 S.C.R. 128 · Decided: 10-11-2005 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Dismissed

Judgment (excerpt)

A 
RAJAN RAI 
v. 
STATE OF BIHAR 
NOVEMBER 10, 2005 
B 
[B.N. AGRAWAL AND A.K. MATHUR, JJ.] 
Evidence Act, 1872: 
Sections 40 to 44-Murder-Two separate trials arising from the same 
C incident-Jn appeal arisingfrom one trial, High Court set aside the conviction 
of four accused, which decision attained finality-But in a subsequent appeal 
arising out of the other trial, upheld the conviction of appellant, a co-accused-
Justification of-Held, justified as case of appellant has to be decided only on 
basis of evidence adduced during his trial-Previous judgment of acquittal of 
D the four other accused was wholly irrelevant in appeal arising out of trial of 
appellant being inadmissible under Ss. 40 to 44-Penal Code, 1860-Section 
302 rlw Section 34-Exp/osive Substances Act, 1908-Sections 3 & 5. 
Murder trial-Testimony of eye-witnesses-Brother of the deceased 
witnessed the incident and in the process got injured-Jn his evidence he 
E supported prosecution case in all material. particulars-Evidence of three 
other eye-witnesses was consistent therewith-Hence, Courts below rightly 
relied upon evidence of the four eye-witnesses while ordering conviction--
Penal Code, 1860-Section 302 rlw Section 34-Explosive Substances Act, 
1908-Sections 3 & 5. 
F 
Murder trial-Injured witness-Non-examination-Effect of-Held: 
Injured witnesses named by the informant were not ready to depose on behalf 
of the prosecution out of fear of the accused-Hence, no adverse inference 
could be drawn against the prosecution for not examining the injured 
witnesses-Penal Code, 1860-Section 302 rlw Section 34-Explosive 
G Substances Act, 1908--Sections 3 and 5. 
Penal Code, 1860-Section 302 r/w Section 34-Murder-Appellant 
found to have shared common intention with a co-accused who died before 
commencement of trial-Held: Merely because the co-accused had died and 
H could not be tried, appellant cannot take any advantage therefrom-High 
128 
RAJAN RAI v. ST A TE OF BIHAR 
129 
Court did not err in convicting appellant under S.302 rlw 34. 
According to the prosecution, PW9 heard a sound of explosion and 
thereafter saw appellant and five other accused hurling bombs on his 
brother as a result of which he received injuries and died. The incident 
occurred at the outer verandah of the house of the deceased. Motive for 
A 
the incident was alleged to be old grudge and animosity. As appellant was B 
absconding, his trial was separated. Of the other five accused, one died 
before commencement of trial. Remaining four accused were convicted 
by the Sessions Judge under Section 302 r/w Section 34 IPC and under 
Sections 3 & 5 of the Explosive Substances Act, 1908. They filed appeals 
before High Court, during pendency of which Appellant was apprehended C 
and in a separate trial convicted under Section 302 r/w Section 34 IPC 
and under Sections 3 & 5 of the Explosive Substances Act, 1908. He too 
filed appeal before High Court. In appeal, High Court set asid.e conviction 
of the four co-accused, which decision attained finality. Appeal of the 
appellant was taken up subsequently, which the High Court dismissed 
thereby upholding the conviction of Appellant. 
D 
In appeal to this Court, the conviction of appellant was challenged 
on three grounds, firstly that as the High Court had acquitted four co-
accused on merit, it was not permissible for it to uphold conviction of the 
appellant; secondly, that the evidence of the four eyewitnesses, namely, 
PWs 2,3,5 and 9 was not reliable and the three injured witnesses named E 
in the FIR, namely, DWs 1, 2 and 3, did not support the prosecution case 
so far as complicity of the appellant with the crime was concerned; and 
lastly, that tJte appellant could not have shared common intention either 
with the four acquitted accused or eve~ with the dead accused, whose 
prosecution was dropped. 
F 
Dismissing the appeal, the Court 
HELD: 1. The High Court was quite justified in ignoring the 
judgment of acquittal rendered by it which was clearly irrelevant. The 
judgment of acquittal rendered in the trial of other four accused persons G 
is wholly irrelevant in the appeal arising out of trial of appellant as the 
said judgment was not admissible under the provisions of Sections 40 to 
44 of the Evidence Act. Every case has to be decided on the evidence 
adduced therein. Case of the four acquitted accused persons was decided 
on the basis of evidence adduced there, while case of the appellant has to 
H 
130 
SUPREME COUR

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