Sundar Ram vs State of Bihar

K.T. Thomas and S.N. Variava, JJ.—Appellant Sundar Ram has been convicted along with A-1 Butai Singh for the offence u/s 302 read with Section 34 of the Indian Penal Code. Two other persons were also convicted by the trial court for the said offences u/s 302/34 of the Indian Penal Code But the High Court acquitted those two other persons and confirmed the conviction and sentence of first accused Butai Singh and second accused Sundar Ram (Appellant). Though we do not know as to whether Butai Singh has challenged the judgment of the High Court by which his conviction was confirmed, we have before us the appeal filed by the second accused Sundar Ram alone.

This case relates to the murder of Gopal Sharma son of P.W. 3 Mathura Singh. This happened just before the midnight of 7.6.1999. According to the prosecution version, Gopal Sharma, the deceased and the rest of the members of his family were sleeping and seven or eight assailants intruded into their courtyard including the four persons arraigned as accused before the trial court. A-1 Butai Singh and A-4 Satyendra Ram had pistols with them, while the Appellant (Sundar Ram) and A-3 Bhuneshwar Ram had bhalla with them. Appellant made an exhortation that all the members of the family of Mathura Singh should be thrashed (or killed). The word "maro" is used which learned senior counsel, Mr. Sanyal submits can mean either "kill" or "thrash". Upon the said exhortation, A-1 Butai Singh fired the pistol which hit on the head of Gopal Sharma who succumbed to the injuries thereby sustained.

As the trial court and the High Court found that Sundar Ram made the exhortation, an attempt was made before us to show that no such exhortation was made. We examined the evidence of P.W. 1 to P.W. 4 for that purpose and we are satisfied that the trial court and High Court have not committed any error in reaching the conclusion that the exhortation attributed to the Appellant was made by him. Mr. Sanyal, learned senior counsel made his alternative endeavour that even if such exhortation was made, that is not enough to spell out a case for common intention to cause the murder of the deceased as those words could as well be explained for giving a thrash. We have considered that argument with all seriousness for deciding as to the common intention in view of the situation presented by the prosecution. All the witnesses said that Sundar Ram was armed with a bhalla. The fact that he was armed was specifically mentioned even in the first information report, though the nature of the weapon was not specified therein. It was a night time nearing midnight that the assailants reached the house when the inmate of the house were sleeping. Two of the assailants had firearms and two others had spear like weapons (bhalla). In the broad circumstances of this case, the words used by Sundar Ram can only be interpreted as a clarion call to launch the attack on the inmates with the lethal weapons. In such a situation, it is extremely difficult for us to extricate Appellant-Sundar Ram from the clutches of Section 34, Indian Penal Code which fastens him with the common intention to murder the deceased.

For the aforesaid reasons we dismiss this appeal.