Ghanshyam Prasad Singh, J.
1. The death reference was heard alongwith Cr. Appeal preferred by all the eight convicts/appellants. The Court below has convicted appellant Binod Kewat under Section 302 IPC and 27 of the Arms Act, and has awarded death sentence. No separate sentence under Arms Act, has been passed against him. Rest seven appellants have been convicted under Sections 302/149 IPC, and have been awarded sentence for life. Appellant Mahendra Kewat has also been found guilty under Section 27 Arms Act. However, no separate sentence has been awarded to him for that offence.
2. The prosecution story is very short and most of the facts are not under dispute. There was a piece of land in village Tetradh Bangla, PS Akorhigola Sasaram bearing Plot No. 1131-1134 appertaining to Khata No. 204 over which at the relevant time there was paddy crops. Both parties were laying claim over the said land as a result of which a proceeding under Section 144 Cr PC was initiated. Against which the informant Hiraman Kewat (PW 6) preferred revision before the Hon'ble Court. According to him, the Hon'ble Court ruled in his favour.
3. Further case of the prosecution is that on 3.3.1995 at about 8.00 a.m. the deceased Kunti Devi, wife of the informant, went over the land in question, harvested a bundle of paddy crop and while at about 9.30 a.m she was returning to her house alongwith 'the bundle, the accused appellants armed with country made pistols, farsa, lathi etc. intercepted her near their house situated near the house of the informant and accused-appellant Surendra Kewat and his wife forcibly snatched the bundle from- her head and kept in front of their house,
4. The informant Hiraman Kewat came out of his baithka and advanced towards the accused appellants, upon which they fell upon him with shout of 'maro maro'. The deceased Kunti Devi began to prevent her husband from entering into quarrel. In the meantime, accused appellant Binod Kewat and accused Chandrama Kewat (since dead) fired shots from their respective pistols upon the informant. The informant hid himself behind a nearby wall as a result of which one of the shots hit Kunti Devi on back portion of head and she fell down at the spot.
5. Further case of the prosecution is that brothers of the informant, namely, Lakhan Kewat (PW 1) and Raju Kewat (PW 3) were also present at the spot at the time of the occurrence. Lakhan Kewat immediately brought a tempo auto rickshaw. However, in the meantime, Kunti Devi succumbed to the injury. The informant brought the dead body to PS Akorhigola on tempo bearing Registration No. MH-04A 8584. The informant lodged fardbeyan (Ext. 4) before the police. The police after observing necessary formalities sent the dead body to Sadar Hospital, Sasaram for postmortem, Dr. S.K. Jha (PW 7), CAS conducted autopsy on the dead body, PW 8, Anil Kumar, S.I. investigated the case and ultimately submitted chargesheet against all the appellants and one Chandrama Kewat.
6. In course of the trial, the prosecution examined as many as eight witnesses, out of whom PW 6 Hiraman Kewat is the informant, PW 7 is the doctor who conducted autopsy and PW 8 Anil Kumar is the IO, of the case. Rest witnesses are family members of the informant.
7. From the side of defence, there is no denial of occurrence and death of Kunti Devi. However, according to them, the standing paddy crops had been auctioned by the S.D.O. in favour of appellant Devendra Kewat for Rs. 1500/-before the alleged occurrence. On the alleged date and time of the occurrence as soon as the deceased Kunti Devi reached near the darwaza of appellant Binod Kewat, Binod Kewat and Chandrama Kewat pulled down bundle of paddy crops from her head. In the meantime, informant came out of his 'dalan' armed with a pistol and began to advance towards the appellant Binod Kewat and Chandrama Kewat (deceased). The deceased Kunti Devi began to prevent her husband and in that process accidentally a shot was fired from the pistol of the informant which hit his wife on her head as a result of which she died. In support of their defence story they have examined two witnesses, namely, DW 1, Ramashray Kewat, DW 2 Balkeshwar Choudhary.
8. In course of submission the learned lawyer for the appellants challenged the judgment under question both in law as well as on facts. It is submitted that the Court below has not properly appreciated the oral evidence adduced on behalf of the parties. It is further submitted that even if the case is presumed to be true no appellant can be convicted under Section 302 IPC either independently or with the aid of Section 149 IPC. It actually comes under the definition of culpable homicide not amounting to murder. It is further submitted that the Court below has seriously erred in awarding death penalty to Binod Kewat as by no stretch of imagination the case falls under category of a 'rarest of rare cases.'
9. Death of Kunti Devi as a result of fire arm injury is not under dispute. The doctor (PW 7) who held postmortem supports this fact. PW 7 Dr. S.K. Jha found only one injury i.e. lacerated wound of size 3.1/2' x 1' cavity deep over posterior part of vertex with blackish margin. Both parietals and oxipital bones were found fractured. According to his opinion vide paragraph-6 of his evidence the death occurred due to injury to brain as a result of injury over skull by fire arm. The postmortem was conducted on 3.3.1995 at about 2.30 p.m. According to the doctor time since death was within 12 hours. Ext. 3 is the postmortem report.
10. Now in the facts and circumstances of the case, the most important fact to be ascertained is as to who fired shot which caused death to Kunti Devi.
11. In fardbeyan (Ext. 4) lodged by PW 6 Hiraman Kewat, who is husband of the deceased, it has been averred that appellant Binod Kewat, Chandrama Kewat (since dead) and Mahendra Kewat were armed with pistol. It has further been averred that Chandrama Kewat and Binod Kewat fired shots upon the informant but he hid himself as a result of which one of the shots hit his wife on the back of her head. There is no allegation that appellant Mahendra Kewat also fired shot from his pistol.
12. PW 6 Hiraman Kewat is the informant and author of the fardbeyan (Ext. 4). He has stated in his examination-in-chief that when on hulla he went near the Chawk he saw eight persons there out of whom appellant Binod Kewat and Mahendra Kewat were armed with country made pistol. He has further stated that appellant Binod Kewat fired shot at Kunti Devi which hit on back of her head. Altogether four shots were fired by Binod Kewat and Mahendra Kewat., He has further stated that however, he hid himself behind the wall of Baleshwar Kewat. All the four shots were fired upon him. He has not named Chandrama Kewat who according to fardbeyan also fired from his pistol. However, the cross examination paragraph-22 of PW 8 Anil Kumar the IO goes to show that there was no such parallel statement given by him before the police in his re-statement. Before the police in his re-statement he did not say that it was the shot from appellant Binod Kewat which hit his wife. On the other hand, his statement before the police was that some one from the accused persons fired shot which hit his wife.
13. PW 1 Lakhan Kewat is elder brother of the informant. He has supported the prosecution story but has not named Chandrama Kewat as one of the accused. According to his evidence appellant Binod Kewat and Mahendra Kewat fired shots from their respective pistols and shot fired by Binod Kewat hit Kunti Devi. However the cross-examiahtion paragraph-18 of PW 8 goes to show that there was no such parallel statement before the police. PW 8 in paragraph-18 has stated that he (Lakhan Kewat) told before him that he did not see the person who fired shot. He also did not name all the accused persons in his statement before the police. He did not name appellant Sakhichand, Kailash, Devendra and Ajay Kewat but he named Chandrama Kewat who alongwith Binod Kewat had pistol in their hand but did not name Mahendra Kewat as carrying pistol.
14. PW 2 Purnamasi Kewat is the nephew of the informant. He, in his examination-in-chief, has stated that appellants Binod Kewat and Mahendra Kewat fired shot and the shot fired by Binod Kewat hit Kunti Devi. However, PW 8, the IO, has stated otherwise in his cross examination paragraph 19. According to him, this witness told before him in course of investigation that Chandrama Kewat fired shot from pistol which hit Kunti Devi. He did not tell before the police that the shot fired by Binod Kewat actually hit Kunti Devi.
15. PW 3 Raju Kewat is cousin of the informant. He has stated in his examination-in-chief that the shot fired by accused Binod Kewat hit Kunti Devi. However, cross examination paragraph-20 of PW 8 goes to show that he in course of investigation told before the police that some one from the accused side fired shot on the informant which hit his wife and she died. He did not name other as accused except Binod Kewat and Chandrama Kewat.
16. PW 5 Indrabasho Devi is the mother of the informant. She has stated in her examination-in-chief that at the instigation of Sakhichand Kewat appellant Binod Kewat shot at Kunti. The shot hit in the head of Kunti as a result of which she fell down and died. However, cross-examination paragraph-21 of PW 8, goes to show that her statement before the police was otherwise. Her statement before the police was that appellant Binod Kewat and Chandrama Kewat fired shots from which Hiraman escaped narrowly but one of the shots hit the wife of Hiraman at the back of her head. She did not specifically named Binod Kewat as assailant of the deceased. It further appears that apart from the above two persons she did not name any other as accused. PW 4 has named Binod Kewat as assailant of Kunti Devi. However, her evidence is not fit to be relied upon in view of the fact that against the story disclosed in FIR she made herself as one of the person who was accompanying the deceased and in para 15 of cross-examination she has even excluded the informant as eye witness of the occurrence.
17. Thus, from the above discussions of oral evidence, it is quite apparent that the prosecution has failed to prove beyond all reasonable doubt that actually the short fired by appellant Binod Kewat hit Kunti Devi- as a result of which she died. It further appears from the evidence that actually shots were fired by someone from the accused persons at Hiraman kewat, the informant, but as he hid himself the same hit his wife Kunti Devi on back of her head.
18. It is submitted on behalf of the appellants that in the facts and circumstances of the case only the accused who actually caused fatal injury to Kunti Devi would be liable for causing death and no other person can be held guilty for her death with the aid of either Section 34 or 149 of the IPC as there was no common intention or object on their part to cause death to Kunti Devi. The common intention or object if any was limited to cause death of informant Hiraman Kewat who did not received any injury. In support of it he relied upon a decision of Apex Court reported in 1996 SCC (Cri) 980, Raghubir Singh and Ors. v. State of Punjab.
'8. Our critical analysis of the evidence on the record shows that the common object of the un-lawful assembly was limited to the attack on Santokh Singh and did not extend to cover the murder of Balwant Singh. Balwant Singh apparently received the injuries when he intervened during the course of the occurrence and those injuries proved fatal. The trial Court rightly found that in the established facts and circumstances of the case, the accused who had actually caused the injuries to Balwant Singh alone was responsible for the murder of Balwant Singh and that others could not be held liable either with the aid of Section 149 or Section 34 IPC.'
19. In the present case in hand also the materials on the record go to show that the intention/object of the accused persons/ appellants was limited to shot at the informant Hiraman Kewat. However, he hid himself as a result of which one of the shots fired at him hit his wife Kunti Devi on back of her head which ultimately caused her death. Apparently, the object or intention did not extent to cause death of Kunti Devi. Therefore, in view of the above principle laid down by the Apex Court conviction of none of the appellants, namely, Devendra Kewat, Kailash Kewat, Mahendra Kewat, Santi Kewat, Sakhichand Kewat, Ajay Kewat and' Surendra Kewat with the aid of Section 149 IPC is sustainable in the eye of law and, accordingly, conviction and sentence of the aforesaid appellants under Sections 302/149 IPC, is fit to be set aside.
20. One of the appellants Binod Kewat has been convicted by the Court below under Section 302, IPC, being the person whose shot actually hit Kunti Devi which caused her death and sentenced him to death. However, from the above discussions of oral evidence, it is quite apparent that there is no consistent and reliable evidence on the record to prove beyond reasonable doubt that actually appellant Binod Kewat was the person whose shot hit the deceased Kunti Devi. Some of the witnesses have stated that it was the shot fired by other Chandrama Kewat who actually hit Kunti Devi. Most of the witnesses have developed this story for the first time in their evidence before the Court whereas their statement before the IO on this point was otherwise. Therefore conviction of appellant Binod Kewat under Section 302, IPC is also not sustainable in the eye of law and it is fit to be set aside.
21. In the result, this appeal is allowed. The judgment of conviction and order of sentence under appeal is hereby set aside. Only appellant Binod Kewat is in jail. He is directed to be set at liberty at once if not wanted in any other case. Other appellants are on bail. They are discharged from liabilities of their respective bail bonds. The death reference is, accordingly answered in negative.
Indu Prabha Singh Singh, J.
22. I agree.