Harendra Nath Mishra And Ors. vs State Of Bihar

1. This appeal is directed against the judgment dated 18.7.2001.

2. Briefly stated the facts are as follows:-

On 3.12.1979, the deceased Ram Pravesh Choudhary along with Radha Kishan Choudhary (PW 1) came to the field for the purpose of collecting the paddy crops which have been kept in the field. One Krisnaditya Narain Tiwary (PW 5) was also present in the field. All the appellants, along with one Ramjanam Choudhary came to the field armed with guns. Appellant Devendra Nath Mishra warned Ram Pravesh Choudhary not to touch the paddy crops. Ram Pravesh Choudhary stated that paddy crop belonged to him and he would take it. As soon as he said this, appellant Devendra Nath Mishra and Deodhari Choudhary fired from their guns injuring Ram Pravesh Choudhary who then started running away. All the appellants, as well as Ramjanam Choudhary followed him and surrounded him. Firing again took place resulting in the death of Ram Pravesh Choudhary.

3. All the accused were tried for the offences under Section 302 read with Section 34 of the Indian Penal Code. Accused Nos. 1 and 2, viz., Devendra Nath Mishra and Deodhari Choudhary were also charged for the offence under section 27

of the Arms Act. The accused pleaded not guilty and claimed to be tried.

4. The trial court believed the eye witnesses' account of PW 1, PW 3 and PW 5 and convicted all the accused persons. Accused Nos. 1 and 2 were convicted for the offences under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act. All the other accused were convicted for the offences under Section 302 read with Section 34 of the Indian Penal Code. All the accused were punished with life imprisonment. All the accused preferred an appeal before the High Court. During the pendency of the appeal, before the High Court, Ramjanam Choudhary expired. The High Court confirmed the conviction of the remaining accused persons.

5. Six appellants had filed this special leave petition. By order dated 25.1.2002, the appeal of petitioner Nos. 5 & 6, namely, Devendra Nath Mishra and Deodhari Choudhary has been dismissed. The remaining accused i.e. petitioner Nos. 1 to 4 were granted leave.

6. We have heard the parties. These appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code. It was submitted that the evidence does not show that these appellants had any common intention to murder the deceased. It was submitted that mere presence of these appellants along with guns was not sufficient to infer common intention. In support of this submission, reliance was placed upon the cases of Suresh v. State of U.P., , Ramashish Yadav v. State of Bihar, , Gajjan Singh v. State of Punjab and Pandurang, , Tukia and Bhillia v. The State of Hyderabad, . There can be no dispute about the principles enunciated in these cases. One important aspect which emerges is that the answer to the question whether there was any common intention or not, would depend upon the fact and circumstances of each particular case.

7. In this case, there is consistent evidence of PWs 1, 3 and PW 5 that all the accused persons came to the field carrying guns. Appellants 5 and 6 first fired their guns injuring the deceased who tried to run away. All the appellants surrounded the deceased and some more firing took place. It is during this firing that the deceased got killed. The evidence also establishes that after this, all went away together. In our view, these facts are sufficient to establish common intention of all the parties.

8. Faced with the situation, it was submitted that in the first information report it has been mentioned that after the first shot the deceased "fell down there". It was submitted that the evidence given in the court, to the effect that the deceased had first tried to run away and that all the other accused had surrounded him is an improvement and should not be believed.

9. In our view, the law on this point is quite clear. A first information report is not a substantive piece of evidence. At the most, it can be used to corroborate or contradict the informant. A first information report can never be used to contradict other witnesses. Apart from the evidence of the informant PW 5, there is also evidence of PWs 1 and 3. The evidence of PWs 1 and 3 is very categorical on this point. Both the courts below have believed it. It is significant to note that it has not been put to these witnesses that they had made any contradictory statement at any other stage. We also do not see any reason to disbelieve the evidence of these witnesses. The evidence given in court by PW 5 is consistent with the evidence given by PWs 1 and 3. In this view of the matter, the mere fact that in the first information report it has not been so stated does not cast any doubt or destroy the evidence given in court.

10. We, therefore, see no infirmity in the judgment of the High Court. The appeal stands dismissed.