SHIVA SHANKAR PANDEY & ORS. versus STATE OF BIHAR

Citation: [2002] SUPP. 2 S.C.R. 166 · Decided: 09-09-2002 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Disposed off

Judgment (excerpt)

A 
B 
c 
SHIVA SHANKAR PANDEY & ORS. 
v. 
STATE OF BIHAR 
SEPTEMBER 9, 2002 
[S. RAJENDRA BABU AND P. VENKATARAMA REDDI, JJ.] 
·' fena/ Code, 1860: 
Sections 302, 149 and 34: 
Murder-Conviction-Common Object-Prosecution case that accused 
allegedly commilting murder-Some of the accused sharing common intention 
to commit murder-Proseculion witnesses not giving any account of role of 
other' accused except alleging that accused seen chasing other party with 
D weapons-Trial Court convicting the accused under section 302 read with 
section 149-High Court upholding the same-On appeal held, section 149 
inapplicable since no constructive liability can be fastened on accused 
persons-Accused sharing common intention convicled under Sec/ion 302 read· 
with 34 and other accused acqui1ted. 
E 
Conviction under section 302 read with 34 though there was no specific 
F 
G 
H 
charge under section 34-Bul accused were aware of the constructive criminal 
liability fastened on them-Thus no prejudice caused to them. 
Sec/ion 149-Vicarious liability of members of unla11ful assembly--
Ingredients and scope of-Explained. 
Criminal Trial : 
Appreciation of evidence-Eye-witnesses were enimical to the accused 
and closely related to deceased-Evidence should be scrutinized with greater 
care and circumspection. 
According to the prosecution A-1 injured one M due to enmity 
between two factions. He fired at M causing him injury from the rifle given 
to him by A-4; an hour later each of the appellant-accused armed ,with 
weapons went to the scene of occurrence. At that juncture A-1 fired a shot 
from his rifle at M. A 4 and two appellants including A-4 exhorted A-1 to 
166 
SHIVA SHANKARPANDEY ''·STATE OF BIHAR 
167 
fire again. He fired two three more shots and M died instantaneously and A 
accused persons dispersed. A-1 was convicted under Sections 302 and 341 
IPC and Section 27 of the Arms Act and his SLP was dismissed by this 
Court. Appellants are the other accused who were convicted under Section 
302 read with Sections 149 and 341 IPC by trial court and their conviction 
was upheld by High Court. Hence these appeals. Disposing of tlie appeals, B 
the Court 
HELD: 1.1. Finding of th.e High Court that in the second part of the 
occurrence all the appellants had common object to commit murder of 
the deceased is not sustainable. The version of prosecution witnesses that 
they had seen each of the accused with weapons in their hands is highly C 
improbable and is not consistent with the admitted course of conduct. It 
does not inspire confidence and it only reflects an anxiety on their part to 
implicate as many accused as possible. 1174-F; 175-8, G, HI 
1.2. Having regard to the fact that the witnesses are closely related 
persons and there is a history of bitter enmity between the deceased and D 
the accused party, the evidence of PWs 10 and 3 should have been 
scrutinized with greater care and circumspection as there was every 
possibility of exaggeration and embellishment. Viewed in this background 
and going by the state of evidence on record, a reasonable doubt arises 
on the veracity of prosecution version that each of the appellants armed E 
with weapons went to the scene of occurrence with a view of kill or.injure 
the victim already injured in the course of first incident. (175-C, DJ 
1.3. The evidence of the deceased's son reveals that as soon as they 
noticed the accused party chasing them, they ran for safety leaving the 
cot on which the deceased was being carried at the spot. It is most unlikely p 
that at that moment he could have noticed meticulousl) who were all 
following him and which weapon each of them carried. At best, he could 
have seen at a quick glance some of the accused but not all of them. The 
son of the deceased (PW 10) assigns the active role only to A-4 and 
appellant-R apart from the actual assailant A-1. The first two of them are 
said to have exhorted A-1 to fire. With regard to other appellants, none G 
of the prosecution witnesses gave any account of the role played by any 
of them. The prosecution evidence is absolutely silent in this regard. No 
injuries other than those inflicted by fire-arm were found on the deceased. 
Thus, a serious doubt arises as to the correctness of the prosecution case 
that each of the accused (excluding A-4 and appellant-R) accompanied A- H 
168 
SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R. 
A 1 in prosecution of their common object to injure or kill the deceased. The 
p

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