Supreme Court of India

PARSURAM PANDEY AND ORS.versusTHE STATE OF BIHAR

Citation: 2004 INSC 605
Decided: 14 October 2004
Disposal: Case Partly allowed
Bench: P VENKATARAMA REDDI

Holding

The Court held that the appellants lacked the common intention required for murder or attempt to murder, thus acquitting them of Sections 302/149 and 307, but affirmed their guilt for causing simple injuries under Section 324 read with 34, and upheld the conviction under Section 27 of the Arms Act.

Summary

The case involved a violent incident in which Raghunath Pandey shot Kanhaiya Pandey, resulting in his death, and other accused fired indiscriminately causing injuries to villagers. The appellants Parshuram, Bishram and Somaru Pandey were convicted under Sections 302 read with 149 IPC, 307 IPC, 324 read with 34 IPC, and Section 27 of the Arms Act. The Supreme Court examined whether the prosecution proved a common intention to murder, the requisite intent for attempt to murder, and the validity of the convictions under Sections 302/149 and 307. It held that the evidence did not establish a shared intent to kill, leading to acquittal on murder and attempt charges, but found sufficient proof of indiscriminate firing causing simple injuries, upholding conviction under Section 324 read with 34. The irregular recording of the Section 313 statement was deemed not prejudicial, and the conviction under Section 27 of the Arms Act was maintained. Consequently, the appeal of Raghunath was dismissed, while the appeals of the other three were partly allowed with modified sentences.

Issues considered

Whether the appellants can be convicted under Section 302 read with Section 149 IPC for the death of Kanhaiya Pandey.
Whether the appellants can be convicted under Section 307 IPC for attempt to murder of the villagers.
Whether the appellants are guilty of causing simple injuries under Section 324 read with Section 34 IPC.
Whether the irregular recording of the statement under Section 313 CrPC warrants a benefit to the accused.
Whether the conviction under Section 27 of the Arms Act should stand.

Legislation cited

Arms Acts. 27
Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307, s. 324, s. 34

Subjects

murderattempt to murderunlawful assemblycommon intentionSection 149 IPCSection 307 IPCSection 324 IPCSection 34 IPCArms ActSection 27Section 313 CrPCconvictionacquittalevidenceeye-witnessindiscriminate firing

Judgment

PARSURAM PANDEY AND ORS. A
v.
THE STATE OF BIHAR

OCTOBER 14, 2004

[P. VENKA TARAMA REDDI AND PRAKASH B
PRABHAKAR NAOLEKAR, JJ.]

Penal Code, 1860-Sec. 302, 307, 148, 149, 324, 34-Arms Act-
Sec.27-Assault by appellant-Causing death of one, injury to others- C
Common object or intention was not for committing murder-No particular
fire arm injuries-Held, all accused did not share intention to commit
murder-Intention only to cause injuries to others-Accused acquitted of
charges under section 302 read with 149 but are convicted under section
324 read with 34.
D
Code of Criminal Procedure-Sec. 313-Recording of statement of
accused-Held, no prejudice caused to the accused on account of irregular,
imperfect statement recorded by the Court.

The accused/appellants were tried for the offence alongwith two other
accused persons namely, Dharam Raj Pandey and Shradha Ram. Raghunath E
Pandey-accused/appellant has been convicted under Section 302 of the IPC
and awarded sentence of life imprisonment, etc. The accused/appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey together with the
other accused (non-appellants) have been convicted and sentenced to 5 years
RI under Section 307 for attempting to murder Rajendra Dusadh, Hriday
Shankar Rai, Shampu Kumar Singh, Mathura Singh and Rajesh Singh and F
one year RI under Section 27 of the Arms Act. PW-6, Birender Pandey and
Somaru Pandey lodged an FIR in 1989 informing that he along with PW5
and Kanhaiya Pandey (deceased) were standing in their field, when there was
a scuffle due to grazing of the buffalo in his field, by the accused. The Trial
Court and High Court while relying on the statement of PW3, PW4, PW5, G
PW6 convicted the accused persons. Defence plea of accidental firing was
rejected.

Before this Court Appellant contended that on proper appreciation of
the evidence on record, PW3 and PW4 could not be held to have been present
475 II
476 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A at the place at the time of the occurrence, that PW3 and PW4 claim to be the
eye-witnesses but in the FIR lodged by PW6 at the police station it is revealed
that they have reached the place of occurrence after hearing the noise, that
as per the FIR these two witnesses have reached the spot after hearing the
fire shots and the noise from the family members, that PW-5 in his cross-
B examination has admitted that after the accused fled away, his family members
came, that PW-3 and PW-4 reached the spot after the accused persons had
already fled away, that PW 3 admitted that he has followed the accused persons
after 2-4 minutes of hearing the 'hulla', that the statement clearly indicates
that he has not immediately followed the accused persons but left his residence
after 2-4 minutes of hearing the hulla, that the statement of this witnesses
C clearly shows that he reached the place of incident after the incident was over,
that the deposition of PW4 and PW3 read with the statement of PWS and the
incident recorded in the FIR leaves no manner of doubt that these witnesses
were not the eye-witnesses and have not seen the incident happening, that the
fact situation alleged by the prosecution of the commencing of the incident
does not inspire confidence in the circumstances of the case, that it was
D impossible for the accused to put his buffalo in the field for grazing when the
PWs were standing in the field, that the investigating officer did not find any
foot marks of the animal in the field and therefore the whole genesis of the
incident is false and therefore the prosecution could not be believed, and they
are wrongly convicted under Section 307 for causing injury to the villagers
E and their further convict.ion under Section 27 of the Arms Act is not in
conformity with the evidence led by the prosecution, and that the statement
under Section 313 Cr.P.C. of the accused persons have been recorded in ·~
most cursory, casual and perfunctory manner by the Sessions court, that this
is a normal practice followed in the court in the state, that the manner in
which the trial court recorded the statement under Section 313 Cr.P.C. of
F the accused persons, is not in accordance with law and therefore accused-
appellants are entitled for the benefit as they have not been provided with
sufficient opportunity to explain the circumstances appearing in evidence
against them.

Allowing the Appeals party, the Court
G
HELD: 1. By virtue of Section 149 IPC every member of an unlawful
assembly at the time of the commission of the offence is guilty ofan offence
committed by any member of the unlawfuls assembly. The Section creates
constructive or vicarious liability of the members of the unlawful assembly
H for unlawful acts committed pursuant to the common object by any other
PARSURAM PANDEY v. ST ATE OF BIHAR 477
members of that assembly. The basis of constructive guilt under Section 149 A
is mere membership of an unlawful assembly. In a case under Section 149
the accused if is a member of the unlawful assembly, the common object of
which is to commit a certa.in crime and ifthat crime is committed by one or
more member of that assembly every person who happened to be a member of
that assembly would be liable for that criminal act by virtue of his being a B
member of it, irrespective of the fact whether he actually committed the act
or not To attract Section 149 of the IPC the prosecution must prove that the
commission of the offence was by any member of an unlawful assembly and
such offence must have been committed in prosecution of the common object
of the assembly or must be such that the member of the assembly know that
it was likely to be committed. Unless these three element are satisfied by the C
prosecution the accused cannot be convicted with the aid of Section 149 IPC.
(485-8-EJ

2. It is difficult to hold as has been held by the trial court and the High
Court that the accused Parshuram, Bish ram and Somaru Pandey have formed
the unlawful assembly with the common object to commit an offence of murder D
of Kanhaiya Pandey. In fact there is no evidence against Somaru Pandey except
that he exhorted appellant/accused Raghunath Pandey to fire at Kanhaiya
Pandey, which in the circumstances of the case is difficult to believe. Though
PWs 5 and 6 deposed that he and Shradha Ram threw the spears at them and
stick portion of it injured PW5, no such injury was proved. PW5 refused to
be examined by the doctor. Accused appellants Parshuram Pandey, Bishram E'
Pamiey and Somaru Pandey are acquitted of the charge under Section 302
read with Section 149. (486-C-E]

3. None of the witnesses have stated that the fire arm causing injuries
was being used by any particular accused for causing injuries to them. In
fact the injured have not seen any of the accused persons using fire arms. F
There is no evidence about the distance from which the said two accused fired.
The only evidence led by the prosecution in indiscriminate firing by P and B
which has caused simple injuries to the villagers. Amongst the injured
villagers, only PWl and DWl were examined. Thus this evidence does not
constitute the intention or Knowledge of the accused persons for committing G
the murder or doing of an act towards it. The evidence only shows that the
villagers have sustained simple injuries. In the circumstances, P and Bare
acquitted under Section 307 ofIPC. (487-D-E)

4. The common intention of the three accused developed immediately
after shots were fired at KP, as a result thereof he fell down on the ground H
478 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A seriously injured. The plan to ward off attack in retaliation by the complainant-
party and the other villagers present nearby and to prevent them from
approaching towards place of incident and the accused persons, common
intention developed at the spur of the movement at the place of occurrence
during the commission of crime. The act of all the three accused persons of
B firing and throwing spear was in furtherance of the common intention of all
of them. When the fire arms were used indiscriminately in the open place,
the assailants may be presumed to know that result of such use of the weapon
will very likely to give bodily injury to the persons and when such injuries
are caused to the persons, it is the actual result from the assault made, and
everyone of the persons concerned in the act will be guilty for that i;ijury
C irrespective of the fact whether the prosecution has proved that a particular
injury was caused by the particular accused persons or not. Injury caused to
the villagers by the fire arm although simple in nature are caused by accused
persons in furtherance of the common object of all the three accused persons.
Hence the accused/appellant PP, BP and SP are guilty of offence under
D Section 324 read with 34 IPC. (488-B-E]

5. It is imperative on the court to record the statement under Section
313 Cr.P.C. of the accused persons so as to give opportunity to the accused
persons to explain any incriminating circumstance proved by the prosecution.
The duty cast on the court cannot be taken lightly. However no argument has
E been advanced by the appellants in the trial court or before the High Court on
the basis of improper recording of the statement under Section 313 Cr.P.C.
In the present case, the accused/appellants could not point out any prejudice
being caused to the accused/appellants on account of the irregular, imperfect
statement recorded under Section 313 of the Cr.P.C. That being the case, the
accused are not entitled for any benefit for the lacuna in recording the
F statement of the accused under Section 313 Cr.P.C. (489-A-C]

6. The evidence of the~e two witnesses is reliable and convincing except
to the extent that some embellishments were made in explaining the genesis
of incident. The evidence of these two eye witnesses is consistent with the
medical evidence and does not create doubt regarding the real manner in
G which the incident has taken place and the injuries caused by RP to KP by
use of fire arm. There is no infirmity in the reasoning of Courts below in
placing reliance on the statement of these two witnesses for convicting RP
for causing death of KP. Appeal of accused/appellant Raghunath is dismissed
and his sentence is maintained. The appeal of accused/appellants Parshuram
H Pandey, Bishram Pandey and Somaru Pandey is allowed and their conviction
PARSURAMPANDEYv. STATEOFBIHAR [P.P.NAOLEKAR,J.] 479

under Section 302 read with 149 IPC and Section 148 is set aside. The appeal A
of accused/appellants Parushuram Pandey and Bish ram Pandey is partly
allowed, their conviction under Section 307 IPC and sentence of 5 years RI
is set aside. Accused/appellants Parushuram Pandey, Bishram Pandey and
Somaru Pandey are convicted under Section 324 read with 34 IPC and
sentenced to three years RI. The sentence of appellants Parshuram Pandey B
and Bish ram Pandey under Section 27 of the Arms Act is maintained. All
these sentences-shall run concurrently. (483-G-H; 484-A; 489-D-F)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 43 l
of 1999.

From the Judgment and Order dated 7 .8.98 of the Patna High Court in C
CrL A. No. 142of1992.
WITH
Crl. A. No. 1199 of 2004.

R.K. Jain, Akhilesh Kumar Pandey, Ajay Bhalla, Ashok Kumar Pandey D
and Mrs. Ranjana Narayana, (AC) with him for the Appellants.

H.L. Aggarwal, Kumar Rajesh Singh and B.B. Singh with him for the
Respondent.

The Judgment of the Court was delivered by E
P.P. NAOLEKAR, J. Leave granted in S.L.P. (Crl.) No.2238 of2004.

Both these appeals arise out of the same incident for which all accused
persons have been convicted and sentenced. The accused/ appellants were
tried for the offence along with two other accused persons namely, Dharm Raj F
Pandey and Shradha Ram. Raghunath Pandey-accused/appellant has been
convicted under Section 302 of the IPC and awarded sentence of life
imprisonment. He was further convicted and sentenced to two years RI under
Section under Section 148 IPC and 27 of the Arms Act. The accused/appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey together with the
other accused (non-appellants) have been convicted and sentenced to life G
imprisonment under Section 302 read with Section 149 of the Indian Penal
Code and two years RI under Section 148 of the IPC. Parshuram Pandey,
Bishram Pandey together with Dharmraj Pandey (non-appellant) have been
further convicted and sentenced to 5 years RI under Section 307 for attempting
to murder Rajdendra Dusadh, Hriday Shankar Rai, Shampu Kumar Singh, H
480 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A Mathura Singh and Rajesh Singh and one year RI under Section 27 of the
Arms Act. All these sentences have been ordered to run concurrently.

The prosecution case in nut-shell is as follows. That on 24th December
1989 at about 1.30 P.M. at Village Burhaila, FIR was lodged by informant-
PW6, Birender Pandey informing that he along with 3harat Pandey (PW5) and
B Kanhaiya Pandey (deceased) were standing in their field. Appellant-Raghunath
Pandey after getting his buffalo washed in the canal reached near Birender
Pandey' s field and drove the buffalo to graze the tori crop grown in the field.
Birender Pandey objected to it, whereupon Raghunath Pandey abused him
which was resisted by Kanhaiya Pandey (deceased). On this Raghunath
C Pandey went to his residence and returned with other accused persons,
armed. Raghunath Pandey was armed with Title and other accused persons,
Parshuram Pandey and Bishram Pandey were armed with gun and Somaru
Pandey armed with spear. On entering the field on exhortation of Somaru
Pandey and Shradha Ram, Raghunath Pandey fired four shots by his rifle. •
Two shots hit Kanhaiya Ram (deceased) who fell down after receiving injuries.
D Thereafter the appellants Parshuram Pandey, Bishram Pandey along with
, other accused persons started indiscriminate firing by their guns which caused
injuries to the villagers. The appellant Somaru Pandey hurled spear towards
Birender Pandey and Bharat Pandey which caused injuries to Bharat Pandey
by the lathi portion of the spear. Surendra Pandey and other alleged eye-
witnesses (PW3) and Ram Ekbal Pandey (PW4) reached the place of
E occurrence and saw the occurrence. The accused/appellants made good their
escape. Kanhaiya Pandey was taken to Nana Nagar Hospital where he was
declared dead.

The autopsy was conducted by (PW7) Dr. Parma Nand Rai and he
F found the following ante-mortem injuries on his person:
(1) Lacerated wound with rugged and blackish marks 31/2" x 21/2" on
the left side of upper chest, auxiliary side of the chest;

(2) Lacerated wound with blackish margin 4" x 3" x muscle deep on
the medial side of upper chest, auxiliary side of the chest;
G
(3) Lacerated wound 4" x 3" x bone deep and inverted margin on the
upper left arm on the same level as injury no.2

(4) Lacerated wound with everted margin 5" x 3112" x bone deep on
lateral side of left arm. It is wound of exit.
H
PARSURAM PANDEY v. STA TE OF BIHAR [P.P. NAOLEKAR, J.] 48J

From the post mortem report it is clear that the injuries found on the A
person of the deceased are lacerated wound of 31/2" x 21/2" on the left side
of the chest just above the level of nipple and lacerated wound of 4" x 3''
x muscle deep on the medial side of upper chest and auxiliary side of the chest
apart from a wound of entry and exist on the upper left arm. The Injury No. I
and Injury No. 2 could not have been caused of the same shot and must have B
been by two gun shots.

On the internal examination he found the following injuries:

"Left auxiliary blood vessel badly lacerated and upper arm badly
lacerated and fractured. Fracture is compounding nature."
c
In the opinion of the doctor the cause of death was haemorrhage and
shock as a result of the fire arm. S.K. Singh, the doctor, who has conducted
the postmortem, he has found lacerated wound with blackic::h margin, which
indicates that the firing was from a near distance. The other injured persons
namely, Hriday Shankar Rai, Sampu Kumar Singh, Rajesh Singh, Mathura D
Singh were examined by Dr. Shiva Nand Prasad (PW&) on 24.12.1989 and he
has opined that the injuries sustained by these persons were simple and were
caused by suspected gun-shot. Prosecution has examined only one injured
witness namely, Rajesh Singh while defence has examined Sampu Kumar
Singh, DW2. The trial court and High Court while relying on the statement
of PW3 Surendra Pandey, PW4 Ram Ekbal Pandey, PW5 Bharat Pandey, PW6 E
Birendra Pandey convicted the accused persons. Defence plea of accidental
firing deserves rejection.

It is urged by the learned counsel for the appellant that on proper
appreciation of the evidence on record, PW3 Surendra Pandey and PW4 Ram
Ekbal Pandey could not be held to have been present at the place at the time F
of the occurrence. PW 3 and 4 claim themselves to be the eye-witnesses but
in the FIR lodged by PW6 at the police station it is revealed that Surendra
Pandey-PW3 and Ram Ekbal Pandey-PW4 have reached the place of occurrence
after hearing the noise. The FIR records, that hearing the fire shots and noise
from the family members and co-villagers, Surender Pandey and Ram Ekbal G
Pandey (Pws 3 and 4) and many other came who had seen the occurrence and
accu~ed persons. Therefore, as per the FIR these two witnesses have reached
the spot after hearing the fire shots and the noise from the family members.
PW5 - Bharat Pandey in his cross-examination has admitted that after the
accused fled away, his family members came. His brother PW3- Surendra
Pandey and father PW4-Ram Ekbal Pandey reached the spot after the accused H
482 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A persons had already fled away. PW3 has deposed that on 24.12.1989 at about
1.30 O'clock at day time he was in verandah of his house and he saw accused
persons armed with guns were going towards Dusadi Tola and he has followed
them. In cross-examination he has admitted that he has followed the accused
persons after 2-4 minutes of hearing the 'hulla'. The statement clearly indicates
that he has not immediately followed the accused persons but he left his
B residence after 2-4 minutes of hearing the hulla. He was attracted to the place
of incident after he has heard the 'hulla'. Thus the statement of this witness
clearly shows that he has reached the place of incident after the incident was
over. PW-4 has deposed that on the date of incident he was at the door of
his house and he saw the accused persons going towards the Dusadi Tola.
C His son Surendra Pandey-PW3 was also sitting at the door. Both of them
moved to see where these people were going. Thus the father and the son
have foilowed the accused persons at the same time and must have reached
the place of incident after the incidence had occurred. The deposition of these
witnesses read with the statement of PW5 - Bharat Pandey and the incident
recorded in the FIR leaves no manner of doubt that these witnesses were not
D the eye-witnesses and have not seen the incident happening. They reached
the spot later on.

It is then submitted by the learned counsel for the appellant that the
fact situation alleged by the prosecution of the commencing of the incident
E does not inspire confidence in the circumstances of the case. As per the
counsel it was impossible for the accused Raghunath Pandey to put his
buffalo in the field for grazing when Birender Pandey, Bharath Pandey and
Kanhaiya Pandey were standing in the field. Particularly so, when the
investigating officer did not find any foot marks of the animal in the field and
therefore the whole genesis of the incident is false and therefore the
F prosecution could not be believed. It may be true that there may be exaggeration
in the prosecution case in so far as Raghunath Pandey deliberately putting
his buffalo in the field to graze the standing crop. It might be that the buffalo
must have strayed in the field and that would have caused heated argument
between Raghunath Pandey and the deceased Kanhaiya Pandey, Bharat Pandey
and Birender Pandey which has enraged Raghunath Pandey who went to his
G house and came back with his rifle and thereafter the incident occurred.
Exaggerated story put up by the prosecution would not wash away the entire
incide11t, which has been proved by the witnesses who were present on the
spot. The incident might have commenced somewhat in different manner but
the fact of the commission of the offence, when proved by the witnesses the
H prosecution's case cannot be thrown out only on the basis that prosecution
PARSURAMPANDEYv. STATEOFBIHAR [P.P.NAOLEKAR,J.] 483

has put inflated version of the commencement of incident. PW6 - Birender A
Pandey, the informant reiterated his version as given in the FIR. In his
statement he said that he was in the field along with Bharat Pandey and
Kanhaiya Pandey on the fateful day. Raghunath Pandey came near the field
and let loose his buffalo in the field of the informant to graze the standing
tori crop and when he protested, Raghunath Pandey started abusing him and B
Kanhaiya Pandey intervened and objected the act of Raghunath Pandey,
whereupon Raghunath Pandey went to his house after threatening and came
back with his rifle along with other accused persons who were also anned
with the fire arms. It is further stated that on exhortation of Somaru Pandey
and Shradha Ram, Raghunath Pandey fired 4 shots by his rifle out of which
two shots hit Kanhaiya Pandey who fell down. Thereafter, Dhannraj Pandey, C
Parshuram Pandey and Bishram Pandey, indiscriminately started firing their
guns which caused injuries to Rajesh Singh-PWI and Somaru Pandey-DW2
and other villagers. It is further deposed that appellant Somaru Pandey and
Shradha Ram hurled spear and Bharat Ram was injured by the back portion
of the spear. PW5-Bharat Pandey corroborated the statement of PW6-Birender
Pandey when he stated in the Court that he was present in the field along . D
with Kanhaiya Pandey and Birender pandey when Raghunath Pandey came
there and let loose his buffalo to graze the tori crop standing in the field of
Birender pandey which was objected to by Birender Pandey and Raghunath
Pandey abused him. Kanhaiya Pandey objected to the said act of Raghunath
Pandey. Thereafter, Raghunath Pandey went to his house and came back with E
fire arm with other accused anned with guns and Somaru Pandey, Shradha
Ram anned with spear. Immediately after having reached the field Raghunath
Pandey fired four shots by his rifle, out of which two shots hit Kanhaiya
Pandey and he fell down. The other accused persons started indiscriminate
firing with the result the villagers sustained injuries. Statements of these two
witnesses have been found trustworthy by two courts below as regards F
causing injuries by fire anns by Raghunath Pandey to Kanhaiya Pandey. The
injury sustained by the deceased-Kanhaiya Pandey corroborates ocular
statements of these two witnesses. On consideration of the evidence, the
evidence of these two witnesses is reliable and convincing except to the
extent that some embellishments were made in explaining the genesis of G
incident. The evidence of these two eye witnesses is consistent with the
medical evidence and does not create doubt regarding the real manner in
which the incident has taken place and the injuries caused by Raghunath
Pandey to Kanhaiya Pandey by use of fire arm. We do not find any infirmity
in the reasoning of Courts below in placing reliance on the statement of these
two witnesses for convicting Raghunath Pandey for causing death of Kanhaiya H
484 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A Pandey.
It is submitted by the learned counsel for the appellants Parshuram
Pandey, Bishram Pandey and Somaru Pandey that in the facts and
circumstances of the case these appellants could not have been convicted
under Section 302 read with Section 149 for causing death of Kanhaiya
B Pandey. Further they are wrongly convicted under Section 307 for causing
injury to the villagers and their further conviction under Section 27 of the
Arms Act is not in conformity with the evidence led by the prosecution.

It has come in evidence that PW5-Bharat Pandey, PW6-Birender Pandey,
C were standing near by the deceased Kanhaiya Pandey. Parshuram Pandey and
Bishram Pandey were carrying fire arms, whereas Somaru Pandey was carrying
spear. The incident has happened within a short span of time. The witnesses
have said that the accused persons entered the field and immediately thereafter
Raghunath Pandey opened four shots at Kanhaiya Pandey, the deceased.
Kanhaiya Pandey. received two gun-shot injuries and fell down. Thereafter,
D Parshuram Pandey and Bishram Pandey had started indiscriminate firing.
Soinaru Pandey had hurled spear at Bharat Pandey. It has also come in the
prosecution evidence that after hot exchange of words Raghunath Pandey
came back within few minutes from his residence armed with rifle and
accompanied by other accused persons to the field. The evidence also shows
that neither Bharat Pandey or Birender Pandey have received any injuries by
E the fire .arms. It is not stated by the eye-witnesses that Parshuram Pandey or
Bishram Pandey while indiscriminately firing from their fire arms had aimed at
Kanhaiya Pandey, the deceased nor there is any evidence on record that
Bharat Pandey, Birender Pandey who were standing near the deceased have
received any injuries by the fire arm. PWI-Rajesh Singh has deposed that on
F 24.12.1989 at 1.30 P.M. he was going towards the place ofone Mathura Uncle
of the Village and while he was passing by the side of field of Birender
Pandey, all of a sudden he heard the noise of 4-5 firing shots and
simultaneously he had received pellet injuries. He has not stated that he has
sustained injuries by any of the accused persons firing at him. Iri fact he has
not seen the actual ~ring of the guns. He is a witness who was going by the
G side of the field of Birender and sustained injuries by fire arm. He has only
heard the noise of 4-5 ·firing shots. Thus this witness has not stated that he
: has received the injuries at the hands of Parshuram, Bishram or Somaru. DW2-
Sampu Kumar Singh who was examined by defence, sustained injuries by the
fire arm, has not named any of the accused person to be the person who has
H caused him injuries in the incident. Thus there is no evidence on record that
PARSURAM PANDEYv. STATE OF BIHAR [P.P. NAOLEKAR, J.] 485

the injuries sustained by the villagers by fire arm was intended to be caused A
by the accused persons. There ·is no evidence on record that any of the
villagers (passer-by) have received any specific injury by a fire arm used by
either Parshuram or Bishram intended to be caused to them.

By virtue of Section 149 IPC every member of an unlawful assembly at
the time of the commission of the offence is guilty of an offence committed B
by any member of the unlawful assembly. The Section creates constructive'
or vicarious liability of the members of the unlawful assembly for unlawful,
acts committed pursuant to the common object by any other member of that
assembly. The basis of constructive guilt under Section 149 is mere membership
of an unlawful assembly. In a case under Section 149 the accused if is a C
member of the unl~wful assembly, the common object of which is to commit'
a certain crime and ifthat crime is committed by one or more members of that'
assembly every person who happened to be a member of that assembly would·
be liable for that criminal act oy virtue of his being a member of it, irrespective ,
of the fact whether he actually committed the act or not. To attract Section ,
149 of the IPC the prosecution must prove that the commission of the offence D
was by any member of an unlawful assembly and such offence must have '
been committed in prosecution of the common object of the assembly or must
be such that the members of the assembly knew that it was likely to be
committed. Unless these three elements are satisfied by the prosecution the
accused cannot be convicted with the aid of Section.
E
The facts which have been proved by the prosecution are that on
heated exchange of words in the field of Bharat Pandey, between Bharat
Pandey, Birender Pandey, Kanhaiya Pandey with Raghunath Pandey,
Raghunath Pandey went home enraged and returned back immediately
thereafter (within 3 minutes according to PW-6) with a rifle accompanied by ,F
other accused persons who were also carrying guns and spear. Immediately
on entering the field, Raghunath Pandey opened fire at Kanhaiya Pandey and
as a result thereof he received two gun-shot injuries from the weapon used
by Raghunath Pandey. Neither Parshuram Pandey nor Bishram Pandey used
their guns to fire at Kanhaiya Pandey, Bharat Pandey or Birender Pandey, who
were standing nearby. No other overt act or.·role has been attributed to them G
which could definitely point out to their common object to kill or injure
Kanhaiya Pandey or PWs 5 and 6. The mere fact that they accompanied
Raghunath Pandey with weapons in hand does not necessarily lead to the
inference that they had shared the common object or intention with Raghunath
Pandey to kill Kanhaiya Pandey. Their behaviour at the scene of offence H
486 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A negatives such inference. However, the only fact prov~d by the prosecution
is that they have started indiscriminate firing which resulted in some villagers.
receiving simple injuries, though the reason for such firing is not clear. In view
of the short span of time within which the whole incident took place it could
not be presumed that the three appellants along with the other accused
Raghunath Pandey have informed the common object to do away with
B Kanhaiya Pandey. The fact that immediately after entering the field Raghunath
Pandey opened fire at Kanhaiya Pandey, though the other accused who were
also armed with gun, have not fired at Kanhaiya Pandey or his companions
also indicates that the accused persons Parshuram and Bishram Pandey did
not share the common object or intention to cause death ofKanhaiya Pandey.
C It cannot be said that they fired their guns and have missed the shot at
Kanhaiya Pandey or any other person. Thus we find it difficult to hold as has
been held by the trial court and the High Court that the accused Parshuram,
Bishram and Somaru Pandey have formed the unlawful assembly with the
common object to commit an offence of murder of Kanhaiya Pandey. In fact
there is no evidence against Somaru Pandey except that he exhorted appellant/
D accused Raghunath Pandey to fire at Kanhaiya Pandey, which in the
circumstances of the case is difficult to believe. Though PWs 5 and 6 deposed
that he and Shradha Ram threw the spears at them and the stick portion of
it injured PW5, no such injury was proved. PW5 refused to be examined by
the doctor.
E Thus the accused appellants Parshuram Pandey, Bishram Pandey and
Somaru Pandey are acquitted of the charge under Section 302 read with
Section 149 and imprisonment for life. Accused Parshuram and Bishram were
also convicted under Section 307 for 5 years RI for causing gun-shot injuries
to the villagers.
F
To constitute an offence under Section 307 two ingredients of the
offence must be present:-

(a) an intention of or knowledge relating to commission of murder ;
and
G (b) the doing of an. act towards it.

For the purpose of Section 307 what is material is the intention or the
knowledge and not the consequence of the actual act done for the purpose
of carrying out the intention. Section clearly contemplates an act which is
dorie with intention of causing death but which fails to bring about the
H
PARSURAM PANDEVv. STATEOFBIHAR [P.P. NAOLEKAR,J.] 487

intended consequence on account of intervening circumstances. The intention A
or knowledge of the accused must be such as is necessary to constitute
murder. In the absence of intention or knowledge which is the necessary
ingredient of Section 307, there can be no offence 'of attempt to murder'.
Intent which is a state of mind cannot be proved by precise direct evidence,
as a fact it can only be detected or inferred from other factors. Some of the
relevant considerations may be the nature of the weapon used, the place B
where injuries were inflicted, the nature of the injuries and the circumstances 1

in which the incident took place. On the evidence on record, where the
prosecution has been able to prove only that the villagers have sustained
injuries by indiscriminate firing and it was an open area with none of the
injured nearby there is a complete Jack of evidence of intention to cause such C
injuries for which the accused persons Parshuram and Bishram could have
been convicted under Section 302 of the IPC. Nature of the injuries sustained
by the villagers is simple. None of the witnesses have stated that the fire arm
causing injuries was being used by any particular accused for causing injuries
to them. In fact the injured have not seen any of the accused persons using
fire arms. There is no evidence about the distance from which the said two D
accused fired. The only evidence Jed by the prosecution is indiscriminate
firing by Parshuram and Bishram wh:::h has caused simple injuries to the
villagers. Amongst the injured villagers, only PWI and DW-1 were examined.
Thus this evidence does not constitute the intention or knowledge of the
accused persons for committing the murder or doing of an act towards it. The E
evidence only shows that the villagers have sustained simple injuries. In the
circumstances, we acquit Parshuram and Bishram under Section 307 of IPC.

It is evident from the evidence placed on record that injuries caused to
the villagers are the result of indiscriminate firing from the guns used by
Parshuram Pandey and Bishram Pandey. It has also proved that Somaru F
Pandey was carrying spear which he had hurled at PW-5 but no injury was
caused to him by it. It appears that after exchange of hot words between
Raghunath Pandey and members of the complainant-party at the field of
Birender Pandey the accused Raghunath Pandey came to his. house and left
his house within few minutes with rifle, observing Raghunath Pandey in a G
furious mood returning back to the field armed with rifle, the accused-appellants
Parshuram Pandey, Bishram Pandey and Somaru Pandey must have
apprehended some danger and thus accompanied him to the field. Raghunath
Pandey immediately after reaching the field opened fire from the gun which
he was carrying. He fired four shots, two shots out of them hit the deceased
Kanhaiya Pandey and he fell down on field at the spot. The three accused H ,
488 SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.

A persons finding Kanhaiya Pandey, deceased falling on the field seriously
injured, apprehended retaliation from the complainant-party and from other
villagers present nearby the field and to ward off any attack on them including
Raghunath Pandey, must have started indiscriminate firing from the fire anns
held by them. In the same process Somaru Pandey also threw spear at the
member of the complainant-party which of course has not caused any injury.
B The common intention of the three accused developed immediately after the
shots were fired at Kanhaiya Pandey, as a result thereof he fell down on the
ground seriously injured. The plan to ward off attack in retaliation by the
complainant-party and the other villagers present nearby and to prevent them
from approaching towards place of incident and the accused persons, common
C intention developed at the spur of the movement at the place of occurrence
during the commission of crime. The act of all the three accused persons of
firing and throwing spear was in furtherance of the common intention of all
of them. When the fire arms were used indiscriminately in the open place, the
assailants may be presumed to know that result of such use of the weapon
D will very likely to give bodily injury to the persons and when such i_njuries
are caused to the persons, it is the actual result from the assault made, 1nd
everyone of the persons concerned in the act wiil be guilty for that injury
irrespective of the fact whether the prosecution has proved that_ a particular
injury was caused by a particular accused person or not. Injury caused to the
villagers by the fire arm although simple in nature are caused by accused
E person in furtherance of the common object of all the three accused persons.
We, therefore, hold the accused/appellants Parshuram Pandey, Bishram Pandey
and Somaru Pandey guilty of offence under Section 324 read with 34 IPC.

It is lastly submitted by the learned counsel for the accu~ed/appellants
that the statement under section 313 Cr.P.C. of the accused persons have been
F recorded in a most cur-sory, casual and perfunctory manner by the Sessions
court. It is urged that this is a normal practice followed in the court in the
State. The manner in which the trial court recorded the statement under
Section 313 Cr.P.C. of the accused persons, is not in accordance with law and,
therefore accused-appellant are entitled for the benefit as they have not been
G provided with sufficient opportunity to explain the circumstances appearing
in evidence against them. We have perused the statement under Section 313
Cr.P.C. and the question formulated by the trial court in the present case and
we may say that it is far from satisfactory. This court time and again has laid
down that it is obligatory on the part of the trial court to examine the accused
for the purpose of enabling the accused personally to explain any circumstance
H appearing in evidence against him. If such opportunity is not afforded, the
PARSURAMPANDEYv. STATEOFBIHAR [P.P.NAOLEKAR,J.] 489

incriminating piece of evidence available in the prosecution evidence against A
the accused cannot be relied upon for the purpose of recording the conviction
of the accused person. It is imperative on the court to record the statement
under Section 313 Cr.P.C. of the accused persons so as to give opportunity
to the accused persons to explain any incriminating circumstance proved by
the prosecution. The duty cast on the court cannot be taken lightly. However, B
we find that no argument has been advanced by the counsel for the appellants
in the trial court or before the High Court on the basis of improper recording
of the statement under Section 313 of the Cr.P.C. In the present case, the
counsel for the accused/appellant could not point out to us any prejudice
being caused to the accused/appellants on account of the irregular, imperfect
statement recorded under Section 313 of the Cr.P.C. That being the case, the C
accused are not entitled for any benefit for the lacuna in recording the
statement of"!the accused under Section 313 of the Cr.P.C.

As the result of the aforesaid discussion and of the findings, appeal of
accused/appellant Raghunath is dismissed and his sentence is maintained.
The appeal of accused/appellants Parshuram Pandey, Bishram Pandey and D
Somaru Pandey is allowed and their conviction under Section 302 read with
149 IPC and Section 148 !PC is set aside. Th~ appeal of accused/appellants
Parshuram Pandey and Bishram Pandey is partly allowed, their conviction
under Section 307 IPC and sentence of 5 years RI is set aside. Accused/
appellants Parshuram Pandey, Bishram Pandey and Somaru Pandey are E
convicted under Section 324 read with 34 IPC and sentenced to three years
RI. The sentence of appellants Parshuram Pandey and Bishram Pandey under
Section 27 of the Arms Act is maintained.

All these sentences shall run concurrently.

VM Appeals partly allowed.
F

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