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Judgment
Anand Prasad Sinha, J.—Both the appeals arise out of the same judgment and that being so they have been heard together and are being disposed of by this common judgment. All the ten appellants of Criminal Appeal No. 7 of 1982 have been found guilty for the offence punishable under sections 216 and 353 of the Indian Penal Code (hereinafter to be referred to as the Penal Code), out of whom appellants Muneshwar Mahto alias Bhuneshwar Mahto, Bundi Yadav alias Bunni Gope, Jadu Yadav, Maho Yadav, Lal Bahadur Mahto, Shatrughan Mahto and Bairagi Mahto have been sentenced to undergo rigorous imprisonment for two years u/s 216 of the Penal Code and eighteen months u/s 353 of the Penal Code and the remaining three appellants, namely, Jawahar Mahto, Badri Mahto and Brahamdeo Mahto have been released on their furnishing bond of Rs. 2000/- with two sureties of the like amount each to appear and receive sentence when called upon during a period of one year and in the meantime to keep peace and be of good behavior under the provisions of the Probation of Offenders Act. Appellant Sadhu Gope of Criminal Appeal No. 98 of 1982 has been found guilty for the offences punishable u/s 302 of the Penal Code and has been sentenced to undergo imprisonment for life. In addition, he has also been found guilty for the offence punishable u/s 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for four years. However, the sentences have been ordered to run concurrently. It appeals that along with the appellants, three more persons were put on trial but they have been acquitted of the charges levelled against them.
The prosecution, case, briefly stated, is that Krishna Prasad (P.W. 12) who then happened to be the Officer Incharge of Barh Police station had gone to village Phulelpur within Barh police station for apprehending appellant Sadhu Gope who was wanted in a dacoity case being Barh P.S. Case No. 24(10)78 of which Sidheshwar Prasad Singh (P.W. 11) who is the informant of this case happened to be the informant and in his house, a dacoity had been committed. At about 4 P.M. Krishna Prasad (P.W. 12) along with the two constables Bhuneshwar Mahto (P.W. 8) and Tejnandan Singh (P.W. 9) and also the informant Sidheshwar Prasad Singh (P.W. 11) and his brother Janardan Singh (deceased) and many other villagers were chasing appellant Sadhu Gope, who in order to escape had entered into the house of appellant Badri Mahto. On seeing the police party, the appellants of Criminal Appeal No. 7 of 1982 started pelting stones and that had caused injuries to Bhuneshwar Mahto and Tejnandan Singh. At that very moment, Sadhu Gope had fired from his rifle which had hit Janardan Singh causing his instantaneous death. The Fardbeyan was recorded at about 4.45 P.M. of Sidheshwar Prasad Singh by Krishna Prasad (P.W. 12) and he took up sic vestigation.
Learned counsel appearing on behalf of the appellants has mainly confined arguments on (he appreciation of evidence. Mr. Jagtanand Prasad learned counsel appearing on behalf of the appellants of Criminal Appeal No. 7 of 1982 has stated that, as a matter of fact, the appellants had been falsely implicated on account of enmity and further it has been stated that there is no firm and clear evidence that they had, in fact, participated in the act of assault as claimed by the prosecution leading to the charge and conviction u/s 216 and 353 of the Penal Code.
Miss R. Usha, learned counsel appearing on behalf of appellant Sadhu Gope, in addition to the appreciation of evidence, has argued that appellant Sadhu Gope may not be found-guilty for the offence punishable u/s 302 of the Penal Code because he never meant to kill janardan Singh.
I will first proceed to take up the case of appellant Sadhu Gope. It appears from the evidence of the witnesses, namely, Ram Naresh Singh (P.W. 1), Shambhu Sharan (P.W. 2), Surendra Kumar (P.W. 4), Bhagwan Singh (P.W. 6), Deonandan Singh (P.W. 7) the injured constable Bhuneshwar Mahto (P.W. 8) and the informant Sidheshwar Prasad Singh (P.W. 11) that Sadhu Gope had been chased and he bad entered into the house of appellant Badri Mahto and then he had fired from his rifle causing death of Janardan Singh instantaneously. The evidence adduced, as indicated above, involving the appellant Sadhu Gope with the act of killing of Janardan Singh could not be dispelled by the force of cross examination. From the evidence of Krishna Prasad (P.W. 12) it appears that the place of occurrence is exactly the same which has been claimed by the prosecution and be himself being the member of the raiding party has further supported the overt act attributed against appellant Sadhu Gope and that could not be substituted by any other material what-so-ever to have any suspicion and doubt that the allegations attributed against appellant Sadhu Gope is either suspicious or uh-acceptable.
The contontion of the learned counsel that Sadhu Gope had not meant killing of Janardan Singh and thus charge u/s 302 of the Penal Code may not be applicable is not correct. It is because, when the gun had been used and it had been aimed at the crowd, definitely the intention was to kill some one or to cause such bodily injury which would definitely result into death. The striker invariably knows the result of his strike and when a gun is used, it is not necessary at all for an offence u/s 302 of the Penal Code that a definite or specific person ought to have been meant for killing. Of course in certain cases, a definite person is mean that he be killed but not necessarily when a definite person is not in the mind, the act of killing will not be culpable homicide Thus when a gun is aimed, fired and the facts and circumstances lead to the conclusion that an intention and knowledge to kill is established on the themes that a striker must know the result of the strike, the killing is murder. A plain reading of section 300 of the Penal Code explains the situation very clearly.
Definitely the intention of Sadhu Gope was that some one be killed, whoever he may be amongst the chasers and that was with that intention either to escape from being apprehended or to create such a fear and terror that the chasers may be refrained from chasing when he had fired from a rifle, definitely he had meant killing and under these circumstances, appellant Sadhu Gope is definitely guilty of culpable homicide and rightly he has been convicted and sentenced u/s 302 of the Penal Code.
The injuries having been caused by fire arm have been perfectly substantiated by the evidence of the Dr. Panchanand Das (P.W. 2). He had found the following injury on the person of deceased Janardan Singh :--
Lacerated injury with scorched margins on the left side of the skull. The size was 10"x5". Left temporal bone and nearly whole of the left parietal bone were blown up with expulsion of the brain matter.
This is quite consistant with the prosecution case that Janardan Singh had been hit by a bullet and accordingly the charge and allegation of shooting attributed against appellant Sadhu Gope is complete and acceptable.
On the facts and in the circumstances of the case, the allegation of murder and charge u/s 302 of the Penal Code is valid.
Accordingly, the appeal of appellant Sadhu Gope has no merit which fails and is dismissed. The order of conviction and sentence passed against him u/s 302 of the Penal Code and 27 of the Arms Act is affirmed.
So far the complicity of the other appellants, namely, Muneshwar Mahto alias Bhuneshwar Mahto alias Bhuneshwar Yadav, Bundi Yadav alias Bunni Gope, Yadu Yadav, Maho Yadav, Lal Bahadur Mahto alias Lal Bahadur Yadav, Satrughan Mahto alias Satrughan Yadav, Bairagi Mahto alias Bairagi Yadav, Jawahar Yadav, Badri Mahto and Brahamdeo Mahto with the overt act of pelting stones, that also appears to be completely established. They had definitely pelted stones upon the raiding party. Three of the appellants, namely, Jawahar Yadav, Badri Mahto and Bairagi Mahto alias Bairagi Yadav, had been apprehended by the raiding. The injury caused to constable Bhuneshwar Mahto (P.W. 8) has been examined by Dr. Shankar Prasad Deokuliar (P.W. 10) and it appears from his evidence that, in fact, Bhuneshwar Mahto had been injured. Similarly, Tej Nandan Singh had been injured and be has been tendered. The evidence of Bhuneshwar Mahto is firm with respect to the fact that he was a member of the raiding and chasing party and brick bats etc. had been pelted upon them and he had been injured. These appellants have been named.
However, on the facts and in the circumstances of the case and also looking to the allegation put forward, the offence u/s 216 of the Penal Code is not applicable. It is because, absolutely there is no evidence to indicate that these appellants'' had knowledge that appellant Sadhu Cope was an accused in a case or he had escaped from lawful custody or any competent authority had ordered for his arrest. According to the prosecution case appellant Sadhu Gope while running away had entered into the house of Badri Mahto and in that view of the matter, it cannot be said that appellant Badri Mahto had knowledge that appellant Sadhu Gope was an absconder or had escaped from lawful custody and thus, it cannot be said that he was harbouring a person. Coupled with this, it would appear that there is no evidence to indicate that appellant Sadhu Gope was, in fact, an accused in the dacoity case which had occurred in between the night of 25th and 26th October, 1978 in the house of Sidheshwar Prasad Singh It may be appreciated that according to the prosecution case he was simply being chased at that time and in absence of any evidence that he had been taken into custody earlier, it cannot be said that he had escaped from lawful custody and there was any order of his arrest and these appellants bad knowledge that such order existed against appellant Sadhu Gope. Further from the evidence it appears that probably Sadhu Gope had been named in that dacoity case and, therefore, the ingredients of section 216 of the Penal Code is not applicable against these appellants. Absolutely, there is no evidence that these appellants had used to maintain or give shelter to appellant Sadhu Gope and in furtherance of that Krishna Prasad and the raiding party bad been restrained from apprehending Sadhu Gope. Therefore, the appellants of Criminal Appeal No. 7 of 1982 are not found guilty for the offence u/s 216 of the Penal Code and they are acquitted of that offence and charge.
However, as indicated above, there is consistent and firm evidence that stones and brick bats had been pelted over the raiding party consisting of the Officer Incharge of Barh police station and constables and a few others. Further the appellants have been identified firmly by the informant who was competent to identify being known from before. The plea of enmity or alibi does not appear to be of any avail as absolutely the firm evidence regarding the complicity of the appellants in hurling stones etc. could not be dispelled. In this view of the matter, the appellants of Criminal Appeal No. 7 of 1982 have been rightly convicted u/s 353 of the Penal Code.
It appears that appellants Jawahar Yadav, Sadri Mahto and Brahamdeo Mahto have been released under the provisions of the Probation of Offenders Act after furnishing bond of Rs. 2000/- for a period of one year. However, we are inclined to consider on the question of sentence with regard to other appellants, as argued by the learned counsel. They have lived in jail for about three months. It appears that the occurrence had taken place in the year 1978 and about seven years have passed since then and also considering the fact that some of them are the members of the same family engaged in cultivation, in our opinion; the ends of justice will be sufficiently met if they are sentenced to the period of imprisonment already undergone by them. Accordingly, appellant nos. 1 to 7 of Criminal Appeal No. 7 of 1982 are sentenced to the period of imprisonment already undergone by them for the offence u/s 353 of the Penal Code. In other words, now they are not requited to go to jail again in the instant case.In the result, the appeal of appellant Sadhu Gope i.e. Criminal Appeal No. 98 of 1982. fails and is dismissed. The appeal of appellants Muneshwar Mahto alias Shuneshwar Mahto alias Bhuneshwar Yadav, Bundi Yadav alias Bunni Gope, Yadu Yadav, Mahto Yadav, Lal Bahadur Mahto alias Lal Bahadur Yadav, Satrughen Mahto alias Satrughan Yadav, Bairagi Mahto alias Biragi Yadav, Jawahar Yadav, Badri Mahto and Brahamdeo Mahto i.e. Criminal Appeal No. 7 of 1982 is also dismissed with modifications in the order of conviction and sentence, as indicated above.
Phani Bhushan Prasad, J.
I agree.