RAJAN RAIversusSTATE OF BIHAR

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
    offour accused, which decision attained finality-But in a subsequent appeal
    arising out ofthe other trial, upheld the conviction ofappellant, a co-accused-
    Justification of-Held, justified as case ofappellant 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 offear 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 ATE OF BIHAR                     129
Court did not err in convicting appellant under S.302 rlw 34.                 A
       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
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
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    130                      SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A   be decided only on the basis of evidence adduced during the course of his
    trial. (135-B; 137-B, CJ

          Karan Singh v. The State of Madhya Pradesh, AIR (1965) SC 1037,
    referred to.

B         Hui Chi Ming v. R, [1991) 3, All E.R. 89,7, referred to.

          2.1. PW9 is the informant himself and, being brother of the deceased,
    most competent person to have witnessed the occurrence that had taken
    place in the outer verandah of the house. PW9 himself was injured in the
    said occurrence and was examined by PW12 who found four injuries on
C   his person caused by explosive substance, such as bomb. The Investigating
    Officer [PW17) heard the sound of bomb explosion at the police station
    which was at a distance of I/4th kilometer from the place of occurrence
    and arrived there only after 15 minutes of the occurrence and recorded
    fard-beyan of PW9 on the basis of which formal FIR was registered at
D   the police station. PW9 in his substantive evidence in the Court has
    supported the prosecution case disclosed by him in all material particulars.
    In the FIR he disclosed names of three witnesses specifically, who had
    received injuries, namely, DWs 1, 2 and 3. Apart from these injured
    witnesses, it has been stated in the FIR that there were other persons as
    well who had seen the occurrence. Immediately after the fard-beyan was
E   recorded, the statements of PWs 2, 3 and 5 were recorded by the police
    without any delay whatsoever. In their statements made before the police,
    they have categorically supported the prosecution case disclosed in the FIR.
    They have also specifically stated that all the accused persons threw bomb
    upon the deceased as a res'ult of which he received injuries and succumbed
F   to the same. (137-D-H)

          2.2. In their evidence, the three injured witnesses, DWs 1, 2 and 3
    have simply stated that the appellant was not present at the place of
    occurrence. It appears that these three injured witnesses were not ready
    to depose on behalf of the prosecution out of fear of the accused persons,
G   as such, merely because they could not be examined by the prosecution,
    the evidence of PWs 2, 3 and 5 cannot be discarded especially when their
    statements were recorded by the police immediately after re:cording of the
    fard-beyan. As such, no adverse inference can be drawn again!lt the ·
    prosecution for not examining the three injured witnesses. The evidence
    of PWs 2, 3 and 5 is consistent with the prosecution case disclosed in the
H
                      RAJAN RAI v. ST ATE OF BIHAR                      131

FIR as well as in the substantive evidence of the informant-PW 9. The          A
Trial Court and the High Court were quite justified in placing reliance
upon their evidence. In view of the facts stated above, this Court is of the
view that the prosecution has succeeded in proving its case beyond
reasonable doubt. (138-B, DI

      2.3. All the four eyewitnesses, namely, PWs 2,3,5 and 9, upon whom       B
reliance has been placed by the two Courts below, have candidly and
consistently stated that the appellant and the dead accused along with
other accused persons came to the house of the deceased and threw bomb
upon him as a result of which he received injuries and succumbed to the
same. The evidence of these witnesses has been rightly found to be reliable    C
by the Trial Court as well as the High Court so far as the appellant is
concerned. There is no reason whatsoever to discard their evidence so far
as participation of the dead accused in the crime is concerned. From the
prosecution evidence it becomes clear that appellant shared common
intention with the dead accused to cause death of the deceased. Thus, if
he would not have died, on the basis of evidence adduced by the                D
prosecution, which is unimpeachable, he was liable to be convicted under
Section 302 with the aid of Section 34 IPC, but merely because he died
before the commencement of his trial and could not be tried, the appellant
cannot take any advantage therefrom. Hence, the High Court has not
committed any error in upholding conviction of the appellant under             E
Section 302 read with Section 34 IPC as well as Sections 3 and 5 of the
Explosive Substances Act, 1908. (139-D, G)

      Krishna Govind Patil v. State of Maharashtra, (1964) 1 SCR 678,
referred to.

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 199
                                                                               F
of 2000.

     From the Judgment and Order dated 21. 7.99 of the Patna High Court
in Crl.A. No. 55 of 1987.
                                                                               G
     P.S. Mishra, Harshvardhan Tathagat, Upendra Mishra, Rajeev Singh,
Amitesh Mishra and Rajesh Prasad Singh for the Appellant.

     B.B. Singh and Kumar Rajesh Singh for the Respondent.

     The Judgment of the Court was delivered by
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    132                       SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A         B.N. AGRA WAL, J. The sole appellant was convicted by the trial
    court under Section 302 read with Section 34 of the Indian Penal Code ['IPC'
    for short] and sentenced to undergo imprisonment for life. He was further
    convicted under- Sections 3 & 5 of the Explosive Substances Act, 1908
    [hereinafter referred to as 'the Act'] and sentenced to undergo rigorous
    imprisonment for a period of 10 years on each count. The sentences were,
B   however, ordered to run concurrently. On appeal being preferred, High Court
    upheld the conviction. Hence this appeal by special leave.

          Prosecution case, in short, was that on l 0.6.1983 at about 7.45 p.m.
    when Joginder Singh [PW 9] came back to his house, he found his brother-
C   Bhola Singh sitting at the outer verandah of the house chatting with one
    Shobha Rai [DW 3]. At about 8.10 p.m. Joginder Singh heard sound of
    explosion and found that a bomb was thrown upon his brother-Bhola Singh.
    Thereafter he saw the appellant-Rajan Rai, accused Kameshwar Rai,
    Tileshwar Rai [since deceased), Sipahi Rai, Bankim Rai and Dasrath Rai
    having bags in their hands and throwing bombs on his brother as a result of
D   which he fell down and succumbed to the injuries. PW 9 caught the appellant
    from his waist whereupon accused Kameshwar Rai threw a bomb upon him.
    Ram Ayodhya Rai [DWI] Ram Gobind Sau [DW.2] and DW 3 also sustained
    splinter injuries on their hands and legs during the course of the occurrence.
    The occurrence was also witnessed by some other persons who were present
E   there. Thereafter, the accused persons fled away. Motive for the occurrence
    disclosed is old grudge and animosity. The Parsa Police Station was at a
                                                                                      ..
    distance of I/4th kilometer from the place of occurrence, as such Baban
    Prasad Singh, Sub-Inspector of Police, [PW 17], who was in-charge of the
    said Police Station on that day, upon hearing sound of bomb explosion along
    with other police officials came to the place of occurrence and recorded fard-
F   beyan of PW 9 at 8.25 p.m. in which the aforenoted facts were stated on the
    basis of which formal First Information Report [FIR] was registered at 9.30
    p.m. on the same day in which names of all the six accused persons, including
    the appellant, were disclosed.

          Police after registering the case took up investigation and on completion
G thereof submitted chargesheet against all the six accused on receipt whereof
    cognizance was taken and all of them were committed to the Court of Sessions
    to face trial. As the appellant-Rajan Rai was absconding, his trial was
    separated from that of other five accused persons, out of whom Tileshwar
    Rai died before the commencement of trial, as such, the trial proceeded
H   against the remaining four accused persons and the same was registered as
               RAJAN RA! v. ST ATE OF BIHAR [AGRA WAL, J.]                  133

Sessions Trial Nos. 245 of 1983 and 20 of 1984.                                    A
      Defence of the accused persons was that they were innocent, no
occurrence much less the occurrence alleged had taken place and that they
had no complicity with the crime, but were falsely roped in to feed fat the
old grudge.
                                                                                   B
      In the aforesaid Sessions Trial Nos. 245/1983 and 20/1984, which
proceeded against the aforesaid four accused persons, as stated above, both
the parties adduced evidence and upon conclusion thereof all the four accused
persons were convicted under Section 302 read with Section j4 IPC and
sentenced to undergo imprisonment for life. They were further convicted            C
under Sections 3 and 5 of the Act and sentenced to undergo rigorous
imprisonment for l 0 years on each count. The sentences were, however,
ordered to run concurrently. Against the said judgment, appeals were preferred
by the aforesaid four convicted accused persons. During the pendency of the
appeals, the appellant could be apprehended and was put on trial giving rise
to Sessions Trial No. 181 of 1985, during the course of which both the             D
parties examined witnesses and upon conclusion of the trial, the trial court
convicted the appellant, as stated above, against which judgment also an
appeal was preferred before the High Court.

      The appeals preferred by the four convicted accused persons challenging
their conviction recorded in Sessions Trial No. 245/1983 and 20/1984 were          E
decided by the High Court on 4th October, 1996 and the same were allowed
and their convictions and sentences set aside, which attained finality as the
matter was not carried further to this Court. The appeal filed by the appellant
was taken up later on and by the impugned judgment, the High Court upheld
his convictions and sentences. Hence this appeal by special leave.
                                                                                   F
       Shri P.S. Mishra, learned Senior Counsel appearing in support of the
appeal, attacked the impugned judgment on three counts. Firstly, it has been
submitted that as in the appeal arising out of the earlier trial, the High Court
acquitted other four accused persons on merit, it was not permissible for it
to uphold conviction of the appellant on the basis of evidence of the same         G
witnesses examined during the course of trial of the appellant. Secondly, in
the facts and circumstances of the present case, the High Court was not
justified in upholding the convictions of the appellant as the evidence of the
four eyewitnesses, namely, PWs 2,3,5 and 9 could not have been relied upon,
especially in view of the fact that their names were not disclosed in the FIR
and the three eyewitnesses, namely, DWs I, 2 and 3, who were injured               H
    134                       SUPREME COURT REPORTS [2005) SUPP. S S.C.R.

A witnesses named in the FIR, did not support the prosecution case so far as
    complicity of the appellant with the crime was concerned. Lastly, it has been
    submitted that there being only six accused persons out of whom four acquitted
    and prosecution of one-Tileshwar Rai dropped, he having died before the
    commencement of trial, the conviction of the appellant under Section 302
    read with Section 34 IPC was not justified as he could not have shared the
B   common intention either with the four acq~itted accused persons or even
    with Tileshwar Rai, whose prosecution was dropped. On the other hand, Shri
    B.B. Singh, learned counsel appearing on behalf of the State of Bihar,
    submitted that judgment of acquittal rendered by the High Court in appeals
    arising· out of convictions of other four accused persons in their trial was
C   inadmissible and irrelevant in the present trial. Further, the evidence of PWs
    2,3,5 and 9 has been rightly relied upon by the trial court as well as the High
    Court. Lastly, learned counsel submitted that conviction of the appellant
    under Section 302 read with Section 34 IPC was warranted in law as the
    appellant could have shared the common intention with accused Tileshwar
    Rai, who died before the commencement of trial and his prosecution was
D   simply dropped by virtue of his death which cannot be equated with the case
    of acquittal.

           Coming to the first submission very strenuously canvassed by Shri
    Mishra, it would be necessary to refer to the provisions of Sections 40 to 44
E   of the Indian Evidence Act, 1872 [in short 'the Evidence Act'] which are
    under the heading 'Judgments of Courts of justice when relevant', and in the
    aforesaid Sections the circumstances under which previous judgments are
    relevant in civil and criminal cases have been enumerated. Section 40 states ·
    the circumstances in which a previous judgment may be relevant to bar a
    second suit or trial and has no application to the present case for the obvious
F   reasons that no judgment order or decree is said to be in existence in this case
    which could in law be said to prevent the Sessions Court from holding the
    trial. Section 41 deals with the relevancy of certain judgments in probate,
    matrimonial, admiralty or insolvency jurisdiction and is equally inapplicable.
    Section 42 refers to the relevancy and effect of judgments, orders or decrees
G   other than those mentioned in Section 41 in so far as they relate to matters
    of a public nature, and is again inapplicable to the present case. Then comes
    Section 43 which clearly lays down that judgments, order or decrees, other
    than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the
    existence of such judgment, order or decree is a fact in issue, or is relevant
    under some other provisions of the Evidence Act. As it has not been shown
H   that the judgment of acquittal rendered by the High Court in appeals arising
                  RAJAN RA! v. STATEOFBIHAR [AGRAWAL,J.]                     135
    out of earlier sessions trial ·could be said to be relevant under the other A
    provisions of the Evidence Act, it was clearly "irrelevant" and could not have
    been taken into consideration by the High Court while passing the impugned
    judgment. The remaining Section 44 deals with fraud or collusion in obtaining
    a judgment, or incompetency of a court which delivered it, and can possibly
    have no application in the present case. It would thus appear that the High
    Court was quite justified in ignoring the judgment of acquittal rendered by B
    it which was clearly irrelevant.

         This question had arisen before the Privy Council in the case of Hui
    Chi ming v. R, (1991] 3, All E.R. 897, wherein the Court was dealing with
    a case of murder trial. In the said case, principal offender was acquitted of C
    murder, but convicted of manslaughter at a trial before the High Court of
    Hong Kong. The said order attained finality. Thereafter, another accused,
    who was facing trial arising out of the same ver~ occurrence and whose trial
    was separated, was convicted for the c~arge of murder by the same High
    Court, ignoring the judgment of acquittal of the principal accused of the
    charge of murder, holding that the same was inadmissible. The application D
    for leave to appeal against the conviction of the accused having been dismissed
    by the Court of Appeal of ljong Kong, the accused appealed by special leave
    to the Privy Council. In that case, conviction for the charge of murder was
    upheld by the Judicial Committee holding that evidence of the outcome of an
    earlier trial arising out of the same transaction was irrelevant and therefore E
J   inadmissible since the verdict reached by a different jury, whether on the
    same or different evidence, in the earlier trial amounted to no more than
    evidence of the opinion of that jury. Further, it was laid down that a person
    could properly be convicted of aiding and abetting an offence even though
    the principal offender had been acquitted and accordingly, the trial judge had
    rightly excluded evidence of the principal offender's acquittal of murder.      F
          A three Judges' Bench of this Court had occasion to consider the same
    very question in the case of Karan Singh v. The State of Madhya Pradesh,
    AIR (1965) SC 1037, in which there were in all 8 accused persons out of
    whom accused Ram Hans absconded, as such trial of seven accused persons,
    including accused Karan Singh, who was appellant before this Court, proceeded G
    and the trial court although acquitted other six accused persons, convicted the
    seventh accused, i.e., Karan Singh under Section 302 read with Section 149
    IPC. Against his conviction, Karan Singh preferred an appeal before the High
    Court. During the pendency of his appeal, accused Ram Hans was apprehended
    and put on trial and upon its conclusion, the trial court recorded otder of his H
    136                       SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A acquittal, which attained finality, no appeal having been preferred against the
   same. Thereafter, when the appeal of accused Karan Singh was taken up for
   hearing, it was submitted that in view of the judgment of acquittal rendered
   in the trial of accused Ram Hans, the conviction of accused Karan Singh
   under Section 302 read with Section 149 IPC could not be sustained, more
   so when other six accused persons, who were tried with Karan Singh, were
B acquitted by the trial court and the judgment of acquittal attained finality.
   Repelling the contention, the High Court after considering the evidence
   adduced came to the conclusion that murder was committed by Ram Hans in
   furtherance of the common intention of both himself and accused Karan
   Singh and, accordingly, altered the conviction of Karan Singh from Section
C 302/149 to one under Section 302/34 IPC.' Against the said judgment, when
   an appeal by special leave was preferred before this Court, it was contended
   that in view of the verdict of acquittal of accused Ram Hans, it was not
   permissible in law for the High Court to uphold conviction of accused Karan
   Singh. This Court, repelling the contention, held that decision in each case
   had to tum on the evidence led in it. Case of accused Ram Hans depended
D upon e~idence led there while the case of accused Karan Singh, who had
  ·appealed before this Court, had to be decided only on the basis of evidence
   led during the course of his trial and the evidence led in the case of Ram
   Hans and the decision there arrived at would be wholly irrelevant in
   considering merits of the case of Karan Singh, who was appellant before this
E Court. This Court observed at page I 038 thus:-
            " As the High Court pointed out, that observation has no application
            to the present case ·as here the acquittal of Ramhans was not in any
            proceeding to which the appellant was _a party. Clearly, the decision
            in each case has to tum on the evidence led in it; Ramhans's case
F           depended on the evidence led there while the appellant's case had to
            be decided only on the evidence led in it. The evidence led in
            Ramhans's case and the decision there arrived &t on that evidence
            would be wholly irrelevant in considering the merits of the appellant's
            case."

G In that case, after laying down the law, the Court further considered as to
    whether the High Court was justified in converting the conviction of accused
    Karan Singh from Section 302/149 to one under Section 302 read with section
    34 IPC after recording a finding that the murder was committed by Ram
    Hans in furtherance of common intention of both himself and accused Karan
H   Singh. This Court was of the view that in spite of the fact that accused Ram
                 RAJAN RAiv. STATEOFBIHAR (AGRAWAL, J.]                       137

- Hans was acquitted by the trial court and his acquittal attained finality, it was   A
  open to the High Court, as an appellate court, while considering appeal of
  accused Karan Singh, to consider evidence recorded in the trial of Karan
  Singh only for a limited purpose to find out as to whether Karan Singh could
  have shared common intention with accused Ram Hans to commit murder of
  the deceased, though the same could not have otherwise affected the acquittal
  of Ram Hans. In view of the foregoing discussion, we are clearly of the view        B
  that the judgment of acquittal rendered in the trial of other four accused
  persons is wholly irrelevant in the appeal arising out of trial of appellant-
  Rajan Rai as the said judgment was not :idmissible under the provisions of
  Sections 40 to 44 of the Evidence .Net. Every case has to be decided on the
  evidence adduced therein. Case of the four acquitted accused persons was            C
  decided on the basis of evidence led there while case of the present appellant
  has to be decided only on the basis of evidence adduced during the course
  of his trial.

         Now the question arises as to whether the trial court as well as the
 High Court was justified in placing reliance upon the evidence of PWs 2,3,5          D
 and 9. PW 9 is the informant himself and, being brother of the deceased,
 most competent person to have witnessed the occurrence that had taken place
 in the outer verandah of the house. PW 9 himself was injured in the said
 occurrence and was examined by Dr. B.P. Tribedi [PW 12) who found four
 injuries on his person caused by explosive substance, such as bomb. The              E
 Investigating Officer [PW 17) heard the sound of bomb explosion at the
 police station which was at a distance of I/4th kilometer from the place of
 occurrence and arrived there at 8.25 p.m. i.e., only after 15 minutes of the
 occurrence which had taken place at 8.10 p.m. - and recorded fard-beyan of
 PW 9 on the basis of which formal FIR was registered at the police station.
 The informant - PW 9 in his substantive evidence in the court has supported          F
 the prosecution case disclosed by him in all material particulars. In the FIR
 he disclosed names of three witnesses specifically, who had received injuries,
 namely, DWs 1, 2 and 3. Apart from these injured witnesses, it has been
 stated in the FIR that there were other persons as well who had seen the
 occurrence. Immediately after the fard-beyan was recorded, the statements of         G
 PWs 2, 3 and 5 were recorded by the police without any delay whatsoever.
 In their statements made before the police, they have categorically supported
 the prosecution case disclosed in the FIR. They have also specifically stated
 that all the accused persons threw bomb upon the deceased as a result of
 which he received injuries and succumbed to the same. PW 9 stated in his
 evidence that the three injured witnesses, referred to above, were not ready         H
    138                       SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A to depose out of fear of the accused persons. Presence of three injured
    witnesses, namely, DWs I, 2 and 3 at the place of occurrence has been
    accepted by them and their· injuries have been proved by the two doctors-
    PWs 15 and 16. In their evidence, DWs I, 2 and 3 have simply stated that
    the appellant was not present at the place of occurrence. It appears that these
B   three injured witnesses were not ready to depose on behalf of the prosecution
    out of fear of the accused persons, as such, merely because they could not
    be examined by the prosecution, the evidence of PWs 2, 3 and 5 cannot be
    discarded especially when their statements were recorded by the police
    immediately after recording of the fard-beyan. As such, no advers'! inference
    can be drawn against the prosecution for not examining the three injured
C   witnesses. The evidence of PWs 2, 3 and 5 is consistent with the prosecution
    case disclosed in the FIR as well as in the substantive evidence of the
    informant-PW 9. In our view, the trial court and the High Court were quite
    justified in placing reliance upon their evidence. In view of the facts stated
    above, we are of the view that the prosecution has succeeded in proving its
    case beyond reasonable doubt. .
D
         The last submission to be examined is whether the appellant could have
  been convicted under Section 302 read with Section 34 IPC for sharing the
  common intention with accused Tileshwar Rai for causing the death of the
  deceased. So far as accused Tileshwar Rai is concerned, he died before the
E commencement of trial, as such his prosecution stood dropped which cannot;
   in any manner, tantamount to acquittal. Shri Mishra submitted that.the effect
  of dropping the prosecution of Tileshwar Rai would tantamount to his acquittal
  and relied upon a decision of this Court rendere9 in the case of Krishna
  Govind Patil v. State of Maharashtra, [1964] I SCR 678, to show that if all
  other persons were acquitted, one person alone could not be convicted under
F Section 302 read with section 34 IPC. In the said decision, a four Judges'
  Bench of this Court was considering a case in which there were in all four
  accused persons and all of them were acquitted by the trial court of the
  charge under Section 302 read with Section 34 IPC. The High Court upheld
  acquittal of the three accused persons, but convicted the fourth accused under
G Section 302 read w_ith Section 34 IPC. When the matter was brought to this
  Court, the conviction was set aside as apart from these four accused persons,
  there was no other fifth accused and in view of the acquittal of three accused
  persons, the conviction of the appellant before this Court under Section 302
  read with section 34 IPC could not be maintained as there was none else with
  whom he could have shared the common intention to cause death of the
H deceased. While acquitting, this Court observed that neither it was the
                   RAJAN RAI v. STATE OF BIHAR [AGRA WAL, J.]                139

    prosecution case that there was any fifth accused person nor was there any A
    evidence to that effect, meaning thereby that if there could have been any
    other accused person-known or unknown-other than the four persons tried,
    the conviction of the appellant before this Court could have been upheld as
     it could have been said that he shared the common intention with the fifth
    unknown accused person to commit the offence. To illustrate the point, if in B
    a case First Information Report is lodged against four persons, known as well
    as unknown, and tried, out of whom three acquitted, one person can be
    convicted under Section 302 IPC simpliciter in case it is found that injury
     inflicted by him was fatal one, but be cannot be convicted under Section 302
    with the aid of Section 34 IPC as in view of acquittal of the other accused
    persons, he cannot be said to have shared the common intention with anybody. C
    On the other hand, if there are three persons, two named and one unknown,
    whose identity could not be ascertained even during the course of investigation,
    and upon being put on trial, out of the two named one gets acquitted, the
    other can be convicted under Section 302 with the aid of Section 34 IPC as
    it can be said that the convicted accused shared the common intention with
    the unknown person if there is evidence to that effect. In the present case, all D
    the four eyewitnesses, namely, PWs 2,3,5 and 9, upon whom reliance has
    been placed by the two courts below, have candidly and consistently stated
    that the appellant and accused Tileshwar Rai along with other accused persons
    came to the house of the deceased and threw bomb upon him as a result of
    which he received injuries and succumbed to the same. We have already E
(
    found that the evidence of these witnesses has been rightly found to be
    reliable by the trial court as well as the High Court so far as the appellant is
    concerned. We do not find any reason whatsoever to discard their evidence
    so far as participation of accused Tileshwar Rai in the crime is concerned.
    From the prosecution evidence it becomes clear that appellant shared common
    intention with accused Tileshwar Rai to cause death of the deceased. Thus, F
    we have no difficulty in holding that if accused Tilesti.war Rai would not
    have died, on the basis of evidence adduced by the prosecution, which is
    unimpeachable, he was liable to be convicted under Section 302 with the aid
    of Section 34 IPC, but merely because he died before the commencement of
    his trial and could not be tried, the appellant cannot take any advantage G
    therefrom. For the foregoing reasons, we are of the view that the High Court
    has not committed any error in upholding convictions of the sole appellant
    under Section 302 read with Section 34 IPC as well as Sections 3 and 5 of
    the Act.

          In the result, the appeal fails and the same is dismissed. Bail bonds of H
      140                       SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

. A   the appellant, who is on bail, are cancelled and he is directed to be taken into
      custody forthwith to serve out the remaining period of sentence for which a
      compliance report must be sent to this Court within one month from the date
      of receipt of copy of this order.

      8.8.8.                                                      Appeal dismissed.
 B