P. Venkatarama Reddi, J. -
(1.)These appeals are by special leave against the judgment of Patna High Court in two criminal appeals, which were dismissed by the High Court, thereby upholding the conviction by the trial Court. Eight persons including the seven appellants herein, were charged of murdering one Mangalanand Pandey on 18-10-1993. Accused Nos. 2, 3, 5 to 8 are the appellants in Criminal Appeal No. 817 of 2000. Accused No.4 is the appellant in the other appeal. The Special Leave Petition in so far as the accused No.1 - Dinesh Pandy, who actually killed the deceased with the shots fired by him, was dismissed by this Court. The said accused was convicted under Ss. 302 and 341 I.P.C. and S. 27 of the Arms Act. The remaining seven accused, who are appellants herein, were convicted under S. 302 read with Ss. 149 and 341 I.P.C. and sentenced to undergo life imprisonment.
(2.)The prosecution case is that on 18-10-1993 at about 5.45 a.m. the deceased Mangalanand Pandey and his brother Ranganath Pandey(PW2) were putting up a 'machan' (a bamboo platform for holding vegetable creepers) at a place adjacent to the 'dalan' of their house towards the West. The 'dalan' and the cow shed of the appellant Ram Pravesh Pandey was adjacent to the land where the 'machan' was being erected. The eight accused came there and started abusing the deceased and PW2. At that juncture, the son of the deceased by name Ram Bachan Pandey - PW10 together with his grand father went to the place and advised the accused - appellants not to pick up quarrel. The accused were in the posture of assaulting them. All the three went running to the house of deceased and closed the doors. The accused followed them to the doorway of the house and continued abusing them. Then PW10 and the deceased shifted to the roof of the house for safety. Thereafter, the accused excepting Mithilesh Pandey and Ramkeshwar Pandey also got into the roof of the house of Sriniwas Pandey (A-4) and started pelting stones and brickbats to hit the deceased and his companions. Mithilesh and Ramkeshwar remained in the lane nereby and continued abusing. While so the appellant - Srinivas Pandey fetched a rifle from his house and gave it to Dinesh Pandey who fired at the deceased causing injury on the upper portion of his left arm. Then, the deceased together with others came down. The injured person (deceased) was put on a cot and he was being taken by PW 10, PW2, PW 9 and one Ranganath Tiwari (not examined) for treatment. At about 7.15 a.m., when they came past the 'dalan' of Ram Narayan Pandey (PW7), the accused, armed with lathis, gandasas and rifles, were rushing towards them uttering the words- 'Maro salon Ko'. Seeing them PW10 and his party fled, keeping the cot on which the injured victim lay, in front of the house of PW7. PW10 ran inside a room located near the 'dalan' of Ram Narayan Pandey and started watching the incident through the window. The uncle - PW2 ran towards the village. However, Ranganath Tiwari (not examined) and PW9 remained there at some distance. Dinesh Pandey (whose SLP was dismissed) fired at the deceased who was lying unconscious on the cot. The appellants - Srinivas Pandey and Ram Pravesh Pandey exhorted the accused Dinesh to fire again saying that the victim was still alive. Dinesh then fired two or three more shots before the accused dispersed. The victim died instantaneously. At about 9.30 a.m. the Sub-Inspector of Police - PW 11 reached the place and recorded the 'Fard Bayan' of PW 10 which is treated as F.I.R. (Exhibit 3). PW 11 inspected the two places of occurrence, seized blood stained earth, brick bats, remains of cartidges etc. and prepared the inquest report. The dead body was sent for post-mortem. the autopsy was conducted by the Medical Officer of Sadar Hospital - PW 4 on the same day evening. PW 12 filed the charge sheet. The Additional Sessions Judge Rohtas held the trial after committal and found the accused guilty of the offence with which they were charged.
(3.)The post-mortem report coupled with the deposition of PW4 reveals that there were lacerated wounds at four spots, namely, posterior lateral aspect of left upper arm resulting in fracture of left humerus, lacerated wound over the right side of 8th inter costal space resulting in the fracture of three ribs and manubrium sterna, lacerated wound on the upper arm right side causing fracture of mid part of humerus and lacerated wound on the left leg mid part causing fracture of tibia and fibula. The first and second wounds had corresponding circular wounds. Doctor opined that the deceased must have died on account of shock and haemorrhage produced by the above injuries caused by fire arm. In the face of the medical evidence, it is contended that the version of the prosecution cannot be true for two reasons, firstly, the Doctor noticed blackening around the upper left arm where the first injury was caused and the blackening would not have occurred unless the shot was fired from a close range, whereas, according to the prosecution, the accused Dinesh Pandey fired the first shot from the roof of the adjacent house. Secondly, according to the Doctor, the first injury on the upper left arm would have resulted in profuse bleeding at the place where the deceased was shot. However, the I.O., P.W.11, did not state that he found any blood stains on the roof of the house or the steps of the staircase. Moreover, no blood was found on the cot on which the deceased was alleged to have been laid after coming down from the roof. It is then commented, based on the statement of the Doctor in cross-examination, that the deceased might have gone into shock and fell down at the very spot where he sustained the first injury and therefore, the theory of the deceased getting down the steps cannot be true. The High Court and trial Court examined all these aspects and negatived these contentions. The High Court observed that the distance between the two houses was very short i.e. 31/2 cubits and, therefore, the possibility of blackening cannot be ruled out. The High Court referred to the statement of the I.O. that he found blood at the stairs as well as 'Osara' (front portion of the house) and observed that the mere fact that he did not find blood marks on the roof or steps does not go against the prosecution case. As far as victim walking down the staircase after receiving the injuries, the trial Court adverted to that aspect and observed, relying on the text books on medical jurisprudence, that the injured managing to walk some distance cannot be ruled out. We do not think that the factum of I.O. not recording the presence of bood stains on the roof and the cot is very material. They could as well be attributed to the omissions in the investigation which do not belie the prosecution evidence substantially. None of the above contentions advanced by the learned counsel for the appellant, therefore, merit acceptance.