Supreme Court of India

DUKHMOCHAN PANDEY AND ORS.versusSTATE OF BIHAR

Citation: 1997 INSC 672
Decided: 25 September 1997
Disposal: Appeal(s) allowed
Bench: G N RAY

Holding

Common intention may develop at the spur of the moment but must be inferred from the facts; only those who caused fatal injuries are liable under Section 302/34, others are liable under Section 325/34, and the Section 302/149 conviction is unsustainable.

Summary

The case arose from a mob of about 200 armed persons who attacked labourers transplanting paddy on a field, resulting in the deaths of Razaullah and Ahmed Shah. The trial court convicted all accused under Sections 302/149 and 302/34 IPC; the High Court set aside the 302/149 convictions but upheld the 302/34 convictions. The Supreme Court examined whether a common intention under Section 34 could be inferred for all participants, especially those who only used lathis and caused non‑vital injuries, and whether the evidence of the star witness (PW‑18) and injured witnesses was reliable despite alleged embellishments and delayed statements. The Court held that common intention may arise at the spur of the moment but must be proved beyond doubt from the circumstances; consequently, those who only inflicted non‑fatal injuries were convicted under Section 325/34 instead of murder, while those who fired guns and caused fatal injuries remained convicted under Section 302/34. The conviction under Section 302/149 was set aside, the evidence of PW‑18 and injured witnesses was upheld, and the delay in recording statements was not fatal. The appeal was partially allowed for the murder convictions and dismissed for the other counts.

Issues considered

The existence and scope of common intention under Section 34 IPC for all accused
Whether conviction under Section 302/34 IPC is sustainable for accused who only used lathis and caused non‑vital injuries
Whether conviction under Section 302/149 IPC should be set aside
Reliability of the star witness PW‑18 and injured witnesses despite alleged embellishments
Effect of delay in recording statements under Section 161 CrPC on the prosecution case
The power of the Supreme Court under Article 136 to re‑appreciate evidence

Legislation cited

Code of Criminal Procedure, 1973s. 161
Constitution of Indias. Article 136, s. Article 36
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 323, s. 324, s. 325, s. 34, s. 447

Subjects

common intentionSection 34 IPCmurderSection 302 IPCSection 325 IPCevidence reliabilityinjured witnessesdelay in statementsre‑appreciation of evidenceSupreme Court criminal appeal

Judgment

A DUKHMOCHAN PANDEY AND ORS.
v.
STATE OF BIHAR

SEPTEMBER 25, 1997

B [G.N. RAY AND G.B. PATTANAIK, JJ.]

Criminal law :

Indian Penal Code, 1860 :
c
Sections 302134 and 325134-Applicability of-Common intention-
Stages at which, can be formed-Held, can be formed previously or on the
spot during the progress of the crime-Common intention may develop at the
spur of the moment in the course of commission of the offence-However,
D common intention developed at the spur of the moment formed at the latter
stage is distinct from similar intention actuating several persons
simultaneously-Existence of common intention in all the persons who made
some overt act resulting in the death of some persons, is a question offact
which can be inferred from the circumstances.

E Criminal Trial :

Wounds and weapons-nature of-Relevant in determining the existence
of common intention of persons doing a criminal act-Question of fact.

Injured witnesses-Uniformity in statements of-Held, not sufficient
F ground to hold them to be tutored witnesses and discard their evidence,
particularly when the Trial Court as well as the High Court had found the
same to be reliable corroborating the evidence of the star witness-Penal
Code-Sections 302134 and 147-Trial under.

FIR~Written by eyewitness-Some embellishment in-On facts, held,
G not sufficient to reject the entire prosecution case-Penal Code-Sections
302134 and 147-Trial under.

Witnesses-Eye witnesses-FIR written by-8ome embellishment in such
FIR-In the particu/arfacts, held, not sufficient to hold him to be an unreliable
H witness-Penal Code-Sections 302134-Trial under.
276
D. PANDEY v. STATE OF BIHAR 277
Criminal Procedure Code, 1973 : A
Section I 61-Delay in recording statements of witnesses under-On
facts, held, not fatal.

Constitution of India :
B
Article I 36-Criminal appea/-Reappreciation of evidence-Held,
ordinarily Supreme Court does not reappreciate the evidence but is not
barred from doing so if interest of justice so demands.

The prosecution case was that one day when the labourers of informant
PW-18 were transplanting paddy on his field, a mob of about 200 people armed C
with various deadly weapons came to the field and asked the labourers to stop
working. On being objected by tne informant, PW-18, to such high-handed
action of the mob, two persons U-1 and U-2 from the mob directed the mob to
kill the labourers. Thereafter two persons from the mob, including the
appellant, fired from their respective guns, as a result of which two persons D
Rand A fell down and died. PW-18 hid himself in a nearby field. In the
meantime the Police along with the Magistrate camping in the village because
of the tension, arrived at the scene of the occurrence when the accused ran
away. The Trial Court convicted all the accused persons under Sections 302/
149 and 302/34 IPC and sentenced them to imprisonment for life. In addition,
some of the accused persons were convicted under Section 147 and rest under E
Section 148 IPC but no separate sentence was awarded under these Sections
by the Trial Judge. On appeal, The High Court on scrutiny of the evidence
afresh, set aside the conviction and sentence under Section 302/149 but upheld
the conviction on other counts including the conviction and sentence under
Section 302/34. Hence this Appeal.
F
The accused appellants contended that the charge under Section 149
having failed before the High Court and the object of the assembly being to
desist the labourers of PW-18 from transplanting the paddy, unless and until
it could be established that the assailants developed a common intention at
the spur of the moment on the spot of the occurrence to kill the deceased G
persons, the conviction under Sections 302/34 could not be sustained. They
further contended that as the gunshot injuries were not on the vital part of
the body, the person alleged to have given the gunshot injuries could not be
held liable for the offence of murder.

Partly allowing the appeals, this Court H
278 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A HELD : 1.1. The existence of a common intention between the participants
in a crime is an essential element for attracting Section 34 IPC and such
intention could be formed previously or on the spot during the progress of
the crime. Usually, it implies a prearranged plan which in turn presupposes
a prior meeting of mind. But in a given case, such common intention may
B develop at the spur of the moment in the course of commission of the offence.
But such common intention developed at the spur of the moment is different
from a similar intention actuating a number of persons at the same time, and
therefore, the said distinction would be relevant in deciding whether Section
34 IPC can be applied to all those who might h~ve made some overt attack on
the spur of the moment. The distinction between a common intention and a
C similar intention may be fine, but is nonetheless a real one and if overlooked,
may lead to miscarriage of justice. (289-G-H; 290-A-C)

Kripa/ end Ors. v. State of Ullar Pradesh, AIR (1954) SC 706;
Pandurang, Tukia and Bhillia v. The State ofHyderabad, [1955] 1SCR1083;
Mohan Singh v. State of Punjab, (1962) Supp 3 SCR 848 and Hardev Singh
D & Anr. v. The State of Punjab, [1975] 3 SCC 731, relied on.

1.2. The question, whether all the persons who made some overt attack
as a result of which some members of the prosecution party died shared the
common intention of the murder of such persons would be a question of fact
and it is difficult to give any direct proof of existence of such common intention.
E It can only be inferred from circumstances. In other words, unless such
common intention is established as a matter of necessary inference from the
proved circumstances of the case the accused persons could be individually
liable for their respective overt attacks and not for the act done by any other
person. The mere fact that the accused persons were armed with some weapons
F itself would not be sufficient to attribute common intention to all of them to
commit murder particularly when in the instant case the prosecution case .
itself is that the accused persons came to the field with the sole object of
desisting the labourers from continuing with the transplantation operation.
Therefore, it would be necessary to examine the weapon of assault, the part of
the body on which such assault was committed, the medical evidence indicating
G the nature of injuries caused thereby and the ultimate cause of death of the
two persons. [2SO-D-G; 291-B]

1.3. According to the doctor who conducted the post-mortem
examination on the dead body of A, out of nine injuries two were fatal and
were caused by some sharp-pointed weapon and the death was due to shock,
H haemorrhage and injuries to vital organs. From the nature of injuries
D. PANDEY v. STATE OF BIHAR 279

sustained by the deceased it can reasonably be said that the two fatal injuries A
could be the result of attack by bhala. From the nature of the injuries and the
nature of the weapons of assault used by accused holding lathis and the part
of the body of A on which they assaulted, it may not be possible to hold that
the accused wielding lathis shared common intention of causing murder of
A. For drawing an inference of common intention for the purposes of Section B
34, the evidence and the circurnstancj!s
. -\
of the case should establish, without
any room for doubt, that a meeting of mind and a fusion of ideas had taken
place amongst the different accused and in prosecution of it the overt acts of
the accused persons flowed out. Therefore, the conviction of those of the
accused persons who were holding lathis, under Sections 302/34 IPC for
causing murder of A cannot be sustained and has to be altered to conviction c
under Sections 325/34 IPC. Although there was no gunshot injuries on the
body of A but two of the accused-appellants did, in response to the lalkara,
fire the guns in their hands first, whereafter all others assaulted with the
respective weapons in their hands. Therefore, the conviction of these two
persons as well as that of the bhala-wielding accused appellants under Sections D
302/34 and sentence of imprisimment for life thereunder for causing murder
of A, has to be upheld. [292-C-H)

1.4. According to the doctor, all the fifteen injuries on the dead body of
R were antemortem in nature and four of them were fatal. One fatal and one E
non-fatal injuries were caused by a sharp-cutting weapon and rest three fatal
injuries as well as six other injuries, by some sharp-pointed weapon. Other
three injuries (barring an abrasion) were caused by gunshots. Death was due
to shock, haemorrhage and injuries on the vital organs. In a case of murder
where it is established by satisfactory evidence that all the accused were acting
in concert and were associated with each other in causing assault and causing F
multiple injuries were found on the deceased it leaves no room for doubt that
all the accused had shared a common intention to cause death. [295-C-D)

Aher Pitha Vajshi and Ors. v. State of Gujarat, AIR (1983) SC 599,
relied on.
G
2. In view of the nature of injuries found on the dead body of deceased
Rand the weapons of assault in the hands of the accused, it cannot be held
that all of them had not shared the common intention of killing R which
developed at the spur of the moment in response to the lalkara given by U-1.
In fact with deadly weapons in their hands they mercilessly assaulted deceased H
280 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.

A Rand as such their conviction under Sections 302/34 is fully justified. Hence,
the conviction of all the 12 accused-appellants under Sections 302/34 for
causing murder of Rand the sentence thereunder are affirmed.
[295-E]

3. After a'careful scrutiny of the evidence of the star witness, viz., PW-
B 18, it is not possible to hold him to be an unreliable witness. Nor is it possible
to hold that he had not seen the occurrence and had merely included the names
of the accused persons in the written FIR. No doubt there are certain
embellishments and the High Court, therefore, was justified in coming to a
conclusion that the FIR was not written at the place of occurrence as stated
C by PW-18. But on this basis, the entire prosecution case cannot be thrown
out particularly when out of 12 witnesses examined on behalf of the
prosecution 5 are injured witnesses. These injured witnesses corroborate the
evidence of PW-18 with regard to the manner of assault, the place of assault,
weapons used by the different accused persons, the persons who assaulted
.D the two deceased persons, the arrival of Magistrate soon after the occurrence,
the arrival of the investigating officer at the field, handing over of FIR by
PW-18 to the Magistrate. The general comment of the accused-appellants in
respect of these injured witnesses is that they repeated in a parrot-like manner
as to what had been stated by PW-18. It is not possible to discard their
E testimony on this ground particularly when the Sessions Judge as well as
the High Court after thorough scrutiny of their evidence have held them to
be reliable corroborating the evidence of star witness PW-18.
(288-E-H; 289-A-B)

4. Ordinarily the Supreme Court, under Article 136 of the Constitution
p does not reappreciate the evidence and the conclusions. of'the High Court on
a question of fact or on appreciation of evidence and they are considered to be
final. But at the same time there is no bar for the Supreme Court to
reappreciate the evidence if the interest of justice so demands. In the present
case as many as 47 people out of a mob of 200 persons have been charged and
G ultimately have been convicted under different Sections of the Penal Code and
the conviction is based upon the ocular statements. In that view of the matter
it is appropriate for the Supreme Court to examine the evidence for coming
to a conclusion as to whether there has been any miscarriage of justice by an
apparent erroneous appreciation of the ocular evidence. [286-G]

H CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 197
D. PANDEY v. STATE OF BIHAR [PATTANAIK, J.] 281
of 1982. A

From the Judgment and Order dated I 1.12.81 of the Patna High Court
in Crl. A. No. 89 of 1978.

WITII
B
Criminal Appeal No. 198of1982.

U.R. Lalit, K.B.N. Sinha, Ms. Madhu A. Sharan, A; Sharan, (D.N.
Goburdhan) for State of Bihar, Ratan Kumar Chaudhary and Anil Kumar Jha
for the appearing parties. C

The Judgment of the Court was delivered by

PATTANAIK, J. Both these appeals arise out of one sessions trial,
Sessions Trial No. 125of1975 which was disposed of by the learned Additional
Sessions Judge, Darbhanga on 30th March, 1978. By the said judgment the D
accused persons were convicted under Section 302/149 and were sentenced
to imprisonment for life. Twenty seven of the accused persons were convicted
under Section 147 but no separate sentence was awarded. Rest of the accused
persons were convicted under Section 148 !PC but no separate sentence was
awarded. Accused Dukhmochan Pandey, Sarbnarain Mishra, Upendra Pandey, E
Sanjam Pandey, Jainandan Mishra, Kapileshwar Manda!, Bhuvneshwar Manda!,
Janak Das, Uttam Pandey, Tapeshwar Pandey, Kameshwar Pandey and Jiwachh
Mishra were convicted under Section 302/34 and were sentenced to
imprisonment for life. The accused Dukhmochan Pandey, Srabamarain Mishra,
Nawal Kishore Pandey, Shiv Thakur, Jogendra Narain Pandey, Mahendra
Narain Pandey, Shiv Shekhar Pandey, Saukhilal Yadav, Amirilal Yadav, Sukhram F
Mishra, Jainandan Mishra, Bamchandra Pandy and Ramchandra Sharma were
convicted under Section 302/34 and were sentenced to undergo rigorous
imprisonment for life. In other words while all the accused persons were
convicted under Section 302/149, they were also convicted in two groups
under Section 302/34, one group for causing murder of Razaullah and the G
other group for causing the murder of Ahmad Shah. After accused Jiwachh
Mishra was convicted under Section 324 and were sentenced to undergo
imprisonment for 2 years and accused Upendra Pandy, Sanjam Pandey,
_Kapileshwar Manda!, Jogeshwar Manda!, Aghanoo Manda) and Janak Das
were convicted under Section 323 and were sentenced to undergo imprisonment
for one year. In all there were 4 7 accused persons. On appeal, the Division H
282 SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A Bench of the Patna High Court by judgment dated I Ith of December, 1981
acquitted the accused persons of the charge under Section 302/149 but the
conviction of the two groups of accused persons for causing murder of
deceased Razaullah and Ahmad Shah under Section 302/34 passed by the
learned Additional Sessions Judge and sentence passed thereunder was
B upheld. The conviction of different accused persons under Section 148 was
upheld and sentence for three years in respect of the same accused persons
was awarded. The conviction of 27 accused persons under Section 147 was
upheld and sentence of imprisonment for two years was awarded by the High
Court. Similarly, the conviction of the accused persons under Section 447 as
well as under Sections 323 and 324 !PC of the different accused persons was
C upheld but the High Court did not pass any separate sentence under these
heads. Those accused persons whose conviction had been upheld by the
High Court under Section 302/34 IPC have preferred Criminal Appeal No. I 97
of 1982 and the appellants in other Criminal Appeal No. 198 of 1982 are those
whose conviction under Section 147 has been upheld by the High Court.

D Prosecution case in nutshell is that a dispute arose when informant -
Kapileshwar Pandey sent labourers to his field for transplanting paddy seeds.
On 25.7.1974 during morning hours while labourers of Kapileshwar Pandey
numbering about 20 were transplanting paddy seeds on the field, at about
noon time, a mob of 200 people armed with various deadly weapons came to
E the field and asked the labourers to stop their work. Kapileshwar Pandey, PW-
18 objected to such high-handed action of the mob whereupon accused
Uttam Pandey and Upendra Pandey directed the mob to kill the labourers.
Soon thereafter accused Dukhmochan Pandey and Sarbnarain Mishra fired
from their respective guns as a result of which Razaullah and Ahmed Shah,
who were on the field fell down. The informant PW-18 being terribly frightened
F ran away to the nearby Janera field and took shelter keeping himself out of
the sight of the assailants. He could see the various attacks of different
accused persons on the labourers who were on the field. While indiscriminating
assault on the labourers was going on somebody cried out that Magistrate
with the police has arrived. The accused persons hearing such call ran from
G the place of occurrence. PW-18 who had taken shelter in the nearby Janera
field then came out and went upon the field where he found two deceased
lying injured. Immediately after PW-18's arrival on the field PW's 5 and 13
reached there and they were followed by the magistrate and the armed forces:
The informant PW-18 wrote a detailed account of the incident and gave the
same to the magistrate, PW-25. It may be stated here that on account of some
H tension in the village a magistrate and some armed forces were camping in
D. PANDEY v. STATE OF BIHAR [PATTANAJK, J.] 283
the village but on the relevant date of occurrence they were not at the place A
of occurrence but arrived there soon after coming to know of the incident.
PW-6, the village Chowkidar being aware of the tension on the field reported
the same to the Hawaldar PW-21 and PW-21 directed the Chowkidar to inform
at the police station. Pursuant to the aforesaid direction, PW-6 arrived at the
police station at about 11.30 a.m. and gave a report to the officer in-charge, B
PW-24 who made a station diary entry No. 458. The said PW-24 after making
the station diary entry left for the village and reached the place of occurrence
at 3 p.m. It is at that point of time the written report given by PW-18 to the
magistrate was handed over to him which was treated as the First Information
Report and thereafter he took up the investigation. He made the inquest over
the two dead bodies and then sent the dead bodies for post -mortem C
examination. In course of investigation he had also made some seizure, but
later on under the order of the supervising authority, PW-26 took over the
investigation from him and said PW-26 after completion of investigation
submitted the charge-sheet. The accused persons were committed to the
court of sessions and stood their trial. The defence put forward by the
accused persons was one of denial. The prosecution examined 32 witnesses D
in all of whom PWs 8, 9, 11, 14 and 15 were injured in course of the occurrence.
PWs 7, 9 and 10 are the seizure witnesses. PW-19 is the Deputy Collector who
had been deputed to watch post-mortem conducted on the deceased. PW-32
is the doctor who conducted the post-mortem examination. PW-22 establil;hed
the fact that under the order of the supervising authority investigation was E
transferred from PW-24 to PW-26. PW-25 is the magistrate and PWs-27, 28
and 29 are the members of the armed force who were in the village camping.
The learned Sessions Judge on a thorough scrutiny of the prosecution
evidence came to hold that the prosecution has been able to prove the
charges against the accused persons beyond reasonable doubt. On appeal,
the High Court re-appreciated the entire evidence on record. On such re- F
appreciation the High Court came to the conclusion that PW-18 was there at
the scene of occurrence and had come to the field being accompanied by
Razaullah. Looking to the F .l.R. which was stated to have been written on the
scene of occurrence and was later handed over to the inves.tigating officer,
the High Court came to the conclusion that the prosecution story that F .l.R. G
was written on the place of occurrence itself is obviously incorrect. But
merely on that score the High Court did not agree with the submission of the
accused persons that the entire case is a concocted one. Thereupon, the
court scrutinized the evidence of the eye-witnesses and ultimately came to
hold that prosecution case as unfolded through those witnesses implicating
the accused persons in the commission of two murders must be held to have H
284 SUPREME COURT RJi:.PORTS [1997) SUPP. 4 S.C.R.

A been established beyond reasonable doubt. In coming to the aforesaid
conclusion apart from holding that the occular statement of the eye-witnesses ·
corroborates each other, court also came to the conclusion that the medical
evidence corroborates the prosecution case. An argument advanced on behalf
of the accused persons that the prosecution party was the aggressor and
came upon the field to dispossess one of the accused persons Sanjam Pandey
B was rejected by the High Court. According to the High Court a well orga'lized
mob fully armed with various weapons indulged in several attacks including
gun shots which ultimately resulted in the death of two persons and several
other members of the prosecution party were injured. The High Court, however,
on scrutiny of the evidence on record came to hold that the object of the
C unlawful assembly being to stop the labourers from transplanting paddy
seeds on the field in question, the conviction under Section 3021149 cannot
be upheld and accordingly the said conviction and sentence passed thereunder
was set aside. But as stated earlier the conviction on other counts was
maintained.

D Mr. U.R. Lalit, the learned Senior counsel appearing for the appellants
in Criminal Appeal No. 197 of 1982 contended that the star witness of the
prosecution is Kapileswar Pandey, PW-18 and his evidence is unbelievable
and shaky and could not be relied upon. So far as the other eye-witnesses
are concerned according to Mr. Lalit they have merely repeated the incident
E in a parrot like manner and the very fact that each of them have mentioned
the name of the accused persons in the same chronology is enough to hold
that they are the tutored witnesses and as such no reliance can be placed on
them. The further argument advanced by Mr. Lalit is that if two of the
appellants had gun with tht:m and both of them simultaneously fired the gun
as stated by the prosecution witnesses but they have not been able to
F indicate as to whose gun shot hit which deceased, the conviction of these
appellants dividing in two groups and making each member responsible for
death of one of the deceased is wholly unsustainable. According to Mr. Lal it
the delayed examination of the prosecution witnesses under Section 161 Cr.
P.C., the find.ing that the FIR was not written at the place of occurrence as
G alleged by PW-18, the number of injuries on the deceased do not commensurate
with the number of accused persons alleged to have assaulted the deceased,
all taken together creates sufficient doubt in the prosecution case, and
therefore, the accused persons are entitled to get the benefit of doubt. Mr.
Lalit also urged that the charge under Section 149 having failed and the object
of the assembly being to desist the labourers transplanting paddy seeds,
H unless and until it is established that the assailants developed a common
D. PANDEY v. STATE OF BIHAR [PATTANAIK, J.] 285

intention at the spot of occurrence to kill the two persons the conviction A
under Section 302/34 cannot be sustained. According to the learned counsel
it is, therefore, necessary for the prosecution to establish that the so called
attacks by each of the accus'ed persons was with intention to kill so that it
can be concluded therefrom that a common intention to kill the deceased
developed at the spur of the moment. Judged from this angle if some of the
accused persons a.ssaulted the deceased after they fell down after receiving B
the gun shot, by means of lathi not on vital part of the body of the deceased
but on the leg or some other part where minor injuries have been found by
the doctor then such of the accused persons cannot be convicted by taking
recourse to Section 34 with the main offence under Section 302 IPC. The
learned counsel had also urged that the gun shot injuries are not on the vital C
part of the body, and therefore, the persons who have been alleged to have
given the shot injuries can't be held liable for the offence of murder.

The learned counsel for the appellants in Criminal Appeal No. 198 of
1982 also attacked the impugned judgment on all the grounds urged by Mr.
Lalit appearing for the appellants in Criminal Appeal No. 197 of 1982 and in D
addition contended that the appellants in Criminal Appeal No. 198 of 1982
have been found to be mere present with the mob, armed with lathies and
have not committed any attack, consequently their conviction under Section
147 !PC and sentence passed thereunder is not sustainable in law.
E
Mr. Sinha, the learned senior counsel for the respondent on the other
hand submitted that there are as many as 12 witnesses examined on behalf
of the prosecution of whom PWs 8, 9, 11, 14 and 15 were injured in course
of the incident and when two courts of fact have already scrutinized the
evidence and have come to the conclusion that the prosecution case has
been proved beyond reasonable doubt it would not be appropriate for this F
Court to re-appreciate the evidence and come to its own conclusion. The
learned counsel further contended that no doubt it is true that initial object
of the unlawful assembly was to desist the persons on the field from ploughing
or from undertaking any agricultural operation. But at the spot when PW-I
gave a lalkar to finish up the Mukhiya and others, a common intention G
developed at the spur of the moment. Consequently, all those who participated
in the overt attack which ultimately resulted in the death of two persons
Razaullah and Ahmed Shah would be liable under Section 302/34 and the High
Court, therefore, was fully justified in convicting them thereunder ano
sentencing them to imprisonment for life. According to the lea.med counsel
the fact that a common intention developed at the spur of the moment is H
286 SUPREME COURT.REPORTS [1997] SUPP. 4 S.C.R.

A established from the evidence of PWs I, 2, 8, 9 and 14. Commenting upon the
argument of Mr. Lalit that Kapileshwar Pandey being the main target it is
difficult to believe that Kapileshwar Pandey kept himself hidden in the nearby
Janera field and yet no accused person followed him, the learned counsel for
the State urged that when Kapileshwar Pandey found himself to be the main
target of attack it is but natural for him to run away from the spot and hide
B himself at a place available in the vicinity and accordingly Kapileshwar Pandey
did hide himself in the nearby Janera field. Such conduct on the part of
Kapileshwar is only most probable conduct of a man under the circumstances
and the High Court was justified in believing the evidence of said Kapileswar.
So far as the argument advanced on account of delay in recording the
C statements of witnesses by the investigating officer the learned counsel
urged that the materials on record fully establish that the initial investigating
officer was partial and was not conducting the investigation fairly on account
of which the investigation was transferred from him to some other man under
· the orders of the supervising authority and under such circumstances the
alleged delay in recording the statement of the witnesses under Section 161
D Cr. P.C. will not vitiate the prosecution case. The learned counsel also urged
' that no doubt the accused persons have been acquitted of the charge under
Section 302/149 and no appeal has been preferred therefrom but when a mob
of200 persons came armed with deadly weapons and several members Jfthe
mob started attacking the persons ori the field the second part of Section 149
E gets attracted, and therefore, the accused persons will be convicted thereunder.
Since no prejudice is caused to the accused persons and since they are
initially charged under Section 302/149 it would be within the powers of this
Court to convict them under Section 302/149 even in the absence of an appeal
against the order of acquittal of the said charge. The rival contentions require
a careful examination of the materials on record.
F
At the outset it must be stated that ordinarily this Court under Article
136 of the Constitution does not re-appreciate the evidence and the conclusions
of the High Court on a question of fact or on appreciation of evidence are
considered to be final. But at the same time there is no bar for this court to
G re-appreciate the evidence if the interest of justice so demands. In the case
in hand as many as 47 people out ofa mob of200 persons have been charged
and ultimately have been convicted under different sections of the penal code
and the conviction is based upon the ocular statement. In that view of the
matter we thought it appropriate to examine the evidence ourselves for coming
to a conclusion as to whether there has been any miscarriage of justice by
H an apparent erroneous appreciation of the ocular evidence. From the aforesaid
D. PANDEYv. STATE OF Bll;IAR (PATTANAIK, {] 287

stand point the evidence in the case may be scrutinized. As it appears, PW- A
18 is the star witness in this case. Since it is he who could see the incident
from the beginning to the end after hiding himself in the nearby Janera field
and was the first person to arrive on the spot after the accused persons left
the field when somebody cried that the Magistrate is coming with the force.
PW-18, Kapileshwar was the Mukhiya of the village having been so elected
on 5.7.1962. According to his evidence he went to the field accompanied by B
deceased Razaullah at 11 a.m. on 25.07.1974 and while the labourers started
working on the field he sat on the southern corner of the field. At 12 noori
a mob of about 200 persons armed with Gun, Bhala, Gadasa, Bow-arrow and
Lathi reached the filed of whom 'he could see Dukhmochan Pandey and
Sarbnarain holding guns in their hands; Soukhilal Yadav, Amirilal Yadav, C
Sukhram Mishra, Jainandan, Ram Chander Pandey, Ram Chandra Sharma,
Tapeshwar, Kameshwar Pandy and Jiwachch Mishra had Bhalas in their hands;
Nawal Kishore Pandey, Shiv Narain Thakur, Yogendra Narain Pandey, Mahendra
Narain and Shiv Shekhar Pandey had Gandasa in their hands. Kalimuddin
Mian, Suleman Mian, Shamsul Mian, Chandeshwar Thakur, Horilal Kapar and
Ram Preeti Mishra had gone with arrows in their hands. He could identify all D
the accused persons who stood charged by name and he knew their place of
residence. As soon as the mob reached the place Uttam Pandey and Upendra
Pandey told the labourers to stop the work. The said witness, PW-18 and the
labourers said that the work will not be stopped and on this Uttam Pandey
and Upendra Pand~y gave the order to finish all the persons belonging to the E
party of PW-18. On such order of Uttam Pandey and Upendra Pandey,
Dukhmochan Pandey and Sarbnarain fired their guns which hit Razaullah and
Ahmed Shah and both of them fell down. PW-18 ran away to the nearby
Janera field and keeping himself out of the sight of the accused persons he
could see what was happening to the labourers engaged by him for carrying
out the transplantation operation Saukhilal, Amirilal, Sukhram Jainandan, Ram F
Chandra Pandey and Ram Chandra Sharma nssaulted Razaullah with Bhala;
Shiv Narain Thakur and Nawal Kishore Thakur assaulted Razaullah with
Gadasa on his neck; and Yogendra Naraiit Pandey, Mahendra Narain Pandey
and Shiv Shekar assaulted Razaullah with Gandasa. After Razaullah fell down
Tapeshwar Pandey, Kameshwar and Jiwachch assaulted Ahmed Shah with G

.
Bhala. Jugeshwar Manda!, Kapileshwar Manda!, Aghnu Manda!, Janak Das, _
'
Sanyam Pandey and Upendra Pandey assaulted him with Iathi. Uttam Pandey
by sitting on the person of Ahmed Shah pressed .him hardly. They werfl
assaulting Ahmed with Bhala. Kapileshwar Manda!, Jugeshwar Manda!, Aghnu
Manda!, Janak Das, Sanyaro Pandey and Upendra Pandey asrnulted Bibi
Julekha Khatoon. and SK. Hadia with lathi. Kalirnuddin Mian, Sulemcin Mian, H
288 SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.

A Shamsul Mian, Horii Kapar Chandeshwar Thakur and Rampreet Mishra were
shooting arrows. Mr. U .R. Lalit, the learned senior counsel contented that this
PW-18 admittedly being inimical with the accused persons his evidence
requires a stricter scrutiny for being accepted. According to the learned
counsel the Mukhiya was the main target and rest of the injured persons were
merely labourers of Mukhiya who were busy in transplantation operation on
B the field. Mukhiya could not have escaped from the clutches of the accused
persons who according to the prosecution case hid himself when a mo.b of
200 persons came and then again said Mukhiya could not have seen the
entire occurrence in a sitting position. The learned counsel also urged that
even if it is assumed that he could see the incident from the Janera field he
C could not have been able to narrate the incident in a graphic manner in which
he narrated. It is in this connection, Mr. Lalit also urged that the High Court
itself on consideration of the entire material has come to a finding that this
witness claimed to have written the FIR at the spot itself. But a very look at
the FIR makes the story impossible and obviously therefore the FIR had not
been written on the field. This finding, according to the learned counsel, lends
D corroboration to the submission that PW-18 has not witnessed the occurrence
and came to the place much later and handed over a written FIR to the
Magistrate which was later on given to the police. The counsel also urged
that a reading of the evidence of PW-18 would indicate that he was neither
on the field at the time of occurrence nor has seen the occurrence but has
E been able to rope in the accused persons by giving their names in the written
FIR. We have carefully scrutinized the evidence of PW-18 and considered the
comments of Mr. Lalit impeaching his credibility but having examined the
evidence of said PW-18 we are not in a position to hold him to be an
unreliable witness neither we are in a position to hold that Kapileswar had
not seen the occurrence and has merely included the names of the accused
F persons in the written FIR. No doubt there has been certain embellishments
and the High Court, therefore, was justified in coming to a conclusion that
the FIR was not written at the place of occurrence as stated by PW-18. But
on that basis the entire prosecution case cannot be thrown out particularly,
when out of 12 witnesses examined on behalf of the prosecution 5 are the
G injured witnesses PWs 8, 9, 11, 14 and 15. These injured witnesses corroborate
the evidence of PW-18 with regard to the manner of assault, the place of
assault, weapons used by different accused persons, the persons who
assaulted the two deceased persons, the arrival of the Magistrate soon after
the occurrence, the arrival of the investigating officer at the field, handing
over of FIR by Kapileshwar to the Magistrate. The general comment of Mr.
H Lal it in respect of these injured witnesses is that they repeated in a parrot like
(

D. PANDEY v. STATE OF BIHAR [PATTANAIK, J.] 289
manner as to what have been stated by Kapileshwar, PW-18. We are unable A
to discard their testimony on this ground particularly when the learned
Sessions Judge as well as the High Court after thorough scrutiny of their
evidence have held them to be reliable corroborating the evidence of star
witness PW-18. In our considered opinion, therefore, the prosecution story
as unfolded through the evidence of PWs 8, 9, 11, 14 15 and 18 cannot be B
doubted. Mr. Lalit in course of his argument no doubt had contended that
the witnesses were examined by the police under Section 161 Cr. P .C. after 5
or 6 days of the incident and no satisfactory explanation for the delay in
recording their statement has been put forward by the prosecution. Though
delayed examination of witnesses by the investigating agency in certain cases
may create a doubt in the mind ~fa court for accepting the testimony of the C
witnesses, but in the case in hand it is apparent that the initial investigating
officer has not been fair enough in investigating into the offence as a result
of which under the orders of the supervising officer the investigation was
transferred to another officer who after taking charge of the investigation
recorded the statement of these witnesses. Such explanation for delay in D
recording the statement of vital witnesses has been held to be a sufficient
explanation and we do not find any justifiable ground to interfere with that
conclusion. In this view of the matter the next question that arises for
consideration is whether in accordance with the prosecution case itself the
common object of the mob being to desist the labourers from carrying on the E
transplantation operation on the field and not to commit murder of any
member of the prosecution party particularly the deceased Razaullah and
Ahmed Shah and the charge under Section 302/149 having failed, can it be
concluded that some of accused persons developed a common intention at
the spot to kill two deceased persons and in furtherance of the said common
intention they went on assaulting the deceased persons who ultimately F
succumbed to the injuries they sustained. From the prosecution evidence
there cannot be in dispute and in fact the courts below have come to the
finding that a mob of 200 persons came armed with different weapons with
object of preventing the prosecution party from carrying on the transplantation
operation on the field. G

The existence of a common intention between the participants in a crime
is an essential element for attracting Section 34 of the Indian Penal Code and
such intention could be formed previously or on the spot during the progress
of the crime. Usually, it implies a pre-arranged plan which in turn pre-supposes H
290 SUPREME COURT REPORTS [1997) SUPP. 4 S.C.R.

A a prior meeting of mind. But in a given case such common intention may
develop at the spur of the moment in course of the commission of offence.
But such common intention which developed at the spur of the moment is
different from a similar intention actuated a number of persons at the same
time, and therefore, the said distinction must be borne in mind which would
B be relevant in deciding whether Section 34 of the Indian Penal Code can be
applied to all those who might have made some overtattack on the spur of
the moment. (See Kripal and Others v. State of Uttar Pradesh. AIR (1954) S.C.
706, Pandurang, Tukia and Bhillia v. The State of Hyderabad, [1955] I SCR
1083, and Mohan Singh v. State of Punjab, [1962) Supp 3 SCR 848. The
distinction between a common intention and a similar intention may be fine,
C but is nonetheless a real one and if overlooked, may lead to miscarriage of
justice. In the case of Hardev Singh and ~nother v. The State of Punjab,
(1975] 3 SCC 731, the original target of attack was one Kewal Singh who
received only some simple injuries having been caused to him by accused
Harjinder Singh and Piara Singh. But in course of the incident accused Hardev
D Singh gave a kirpan blow on the head ofTej Kaur and question of consideration
was whether all the accused persons can be held. guilty for the offence of
murder of said Tej Kaur with the aid of Section 34 of the Indian Penal Code.
This Court held that the assault on Tej Kaur by accused Hardev Singh was
his individual act and consequently other accused persons cannot be held
guilty of the offence under Section 302134 for the murder of said Tej Kaur. The
E question, whether all the persons who made some overtattack as a result of
which some me~bers of the prosecution party died shared the common
intention of the murder of such persons would be a question of fact and it
is difficult to give any direct proof of existence of such common intention and
can only be inferred from circumstances. In other words, unless such common
intention ..is established as a matter of necessary inference from the proved
F circumstances of the case then the accused persons could be individually
liable for their respective overt attacks and not for the act done by any other
person. The mere fact that the accused persons were armed with some weapons
itself would not be sufficient to attribute common intention of all of them to
commit murder particularly when in the case in hand the prosecution case
G itself is thaUhe accused persons came to the field with the sole object of
desisting the labourers from continuing with the transplantation operation.
Mr. Sinha, learned senior counsel appearing for the respondent had urged
that every person is presumed to know the natural consequences of his own
act and therefore pursuance to the call being given to kill the persons of
Mukhiyir whereafter the accused appellants having assaulted the two deceased
H persons with different weapons in their hands, it must be held that they had
D. PANDEYv. STATE OF BIHAR [PATTANAIK, J.] 291
developed the common intention of murdering Ahmed Shah and Razaullah A
and as such their conviction under Section 302/34 is wholly justified. As has
.been stated earlier whether all those who are said to have been armed with
some weapons and alleged to have assaulted the deceased, shared the common
intention of murdering deceased has to be found out from the facts and
circumstances established and found. In other words, it would be necessary B
to examine as to the weapon of assault, on the part of the body on which
such assault was committed, the medical evidence indicating the nature of
injuries caused thereby and the ultimate cause of death of the two persons.

It may be stated that for causing murder of Ahmed Shah accused
Dukhmochan Pandey, Uttam Pandey, Kameshwar Pandey, Jiwacch Mishra, C
Sarabnarain Mishra, Janak Das, Sanjam Pandey, Upendra Narain Pandey,
Tapeshwar Pandey, Jainandan Mishra, Jugeshwar Manda!, Kapileshwar Manda!
have been convicted under Section 302/34. Witnesses have established that
Dukhmochan Pandey was holding a gun, Uttam Pandey was holding a Lathi,
Kameshwar Pandey was holding a Bhala, Jiwacch Mishra was holding a
Bhala, Sarbnarain Mishra was holding a Gun, Janak Das was holding a Lathi, D
Sanjam Pandey was holding a Lathi, Upendra Narain Pandey was holding a
Lathi, Tapeshwar Pandey was holding a Bhala, Jainandan Mishra was holding
a Bhala, Jugeshwar Manda! was holding a Lathi and Kapileshwar Manda! was
holding a Lathi. The Doctor, who conducted the post-mortem examination on
the dead body of Ahmed Shah, PW-32, found the following injuries on him: E

"On the same date at 4 P.M. I held P.M. examination on the body
of Ahmed Shah S/o. Hakim Shah of the same and found as follows:

I. Perforating injury %" x \I," x chest cavity almost transverse in the F
second right intercostal space anteriorly.

2. Perforating injury 2" x Yz" x chest cavity almost ~nsverse in the
foweth right intercosteral space anteriorly.

3. Lacerated injury V. "long across the right lip. G

4. Both the incisors and one canine teeth in I got lower jaw broken.

5. Two teeth on upper left jaw and four teeth on right upper jaw
broken. (Two incisors, one canine and one premolar). H
292 SUPREME COURT REPORTS [1997] SUPP.4 S.C.R.

A 6. One abrasion Y:z'' x Y:z'' on right shoulder.

7. One abrasion l" x Y:z'' chest right side, upper part.

8. One abrasion l" x 1/4" on mid of back right side.

9. Second and fourth ribs were cut anteriorly. They were spounder to
B injuries Nos. 1 and 2. Intercostal muscles abo cut. Pheera cut 2 inches
long at place on right side anteriorly. There was a cut in the upper
lobe of the right lung, anteriorly ... .3" x l" x l ". The middle lobe had
abodone cut :Y." x l" anteriorly. Chest cavity was full of blood and
blood clots, almost faint. Both cf.ambers of heart were empty."
c According to the doctor injuries Nos. I and 2 were vital caused by some
sharp pointed weapon and death is due to shock, haemorrhage and injuries
to vital organs. From the nature of injuries sustained by the deceased it can
reasonably be said that the two fatal injuries Nos. I and 2 could be the result
of attack by Bhala. The lacerated injury across the right lip, breaking of both
D the incisors and one canine teeth in right jaw, breaking of two teeth on upper
left jaw and four teeth on right upper jaw, abrasion found on right shoulder,
abrasion found on right side chest and abrasion found on the mid of back
right side could be caused by lathi. From the nature of the injuries found on
the dead body of deceased Ahmed Shah and the nature of the weapons of
E assault used by accused holding lathies namely accused Uttam Pandey, Janak
Das, Sanjam Pandey, Upendra Narain Pandey, Jogeshwar Manda! and
Kapileshwar Manda!, and the part of the body of Ahmed Shah on which they
assaulted, it may not be possible to hold that they shared common intention
of causing murder of Ahmed Shah. For an inference of common intention
being drawn for the purposes of Section 34, the evidence and the circumstances
F of the case should establish, without any room for doubt, that a meeting of
minds and a fusion of ideas had taken place amongst different accused and
in prosecution of it the overt acts of the accused persons flowed out. As has
been stated earlier the prosecution case itself is, they came to prevent the
labourers from continuing the transplantation operation but at the spur of the
G moment on account of certain lalkara being given by some of the accused
persons, persons armed with weapons started assaulting the deceased. But
from mere assault even not on vital parts of the body which ultimately
resulted in causing some minor injuries, it may not be sufficient to establish
beyond reasonable doubt that they also shared a common intention of causing
murder of deceased Ahmed Shah. In this view of the matter, the conviction
H of appellants Uttam Pandey, Janak Das, Sanjam Pandey, Upendra Narain
D. PANDEYv. STATE OF BIHAR [PATTANAIK, J.] 293

Pandey, Jogeshwar Manda! and Kapileshwar Manda! under Section 302/34 A
IPC for causing murder of deceased Ahmed Shah cannot be sustained and
the same is set aside, instead they are convicted under Section 325/34 IPC.
sentenced to undergo rigorous imprisonment for five years. It is no doubt true
that there is no gun shot injury on him buf it is Dukhmochan Pandey and
Sarbnarain Mishra who on being ordered by Uttam Pandey fired the guns in
their hands first, whereafter all others assaulted with the respective weapons B
in their hands. That being the position, Dukhmochan Pandey and Sarbnarain
Mishra also could be held liable under Section 302/34 and have been rightly
convicted by the courts below.

For causing death of Razaullah the following 12 accused persons have C
been convicted under Section 302/34 IPC :

1. Dukhmochan Pandey A-I

2 Shiv Narain Thakur A-3
.
3. Shivshekhar Pandey A-6 D

4. Sarabnarain Mishra A-8

5. SukJ1ram Mishra A-10

6. Saukhilal Yadav A-15 E
7. Naval Kishore Pandey A-17

8. Jogendra Narain Pandey A-18

9. Mahendra Narain Pandey A-21 F
10. Ramchandra Pandey A-25

11. Jainandan Mishra A-35

12. Amiri Lal Yadav A-46"
G
Of these accused persons Dukhmochan Pandey was holding a Gun,
Shiv Narain Thakur was holding a Gadasa, Shivshekar Pandey was holding
a Gadasa, Sarabnarain Mishra was holding a Gun, Sukhram Mishra was
holding a Shala, Saukhilal Yadav was holding a Shala, Naval Kishore Pandey
was holding a Gadasa, Yogendra Narain Pandey was holding a Gandasa, H
294 SUPREME COURT REPORTS (1997) SUPP. 4 S.C.R.

A Mahendra Narnin Pandey was holding a Gandasa, Ramchandra Pandey was
holding and Bhala, Jainandan Mishra was holding a Bhala and Amiri Lal
Yadav was holding a Bhala. Doctor, PW-32, found the following injuries on
the dead body of Razaullah :

"I. Incised injury 8" x Y:z'', some what elliptical in shape on lower part
B of back of head, just on the lower part of the accipebal bone.

2. Punctured injury'!." x W' x 414" an I" below the lobule of the left
ear.
3. Perforating injury antori ..... third left inter costal space ...... downwards
C medially.

4. Perforating injury Yi" x \4'' x abdominal cavity on men, left side,
upper part.

5~Perforating injury Yi'' x Y." x abdominal cavity on abdomen, left side,
front aspect.
D
6. Obliqu~ punctured injury 2" x 114" x I" on right am1 anteriorly.

7. abrasion Yi" x Yi" below right eye.

8. Incised 4" x Yi" x boale on left knee.
E 9. Compound fracture of tibia and fibula, lower third, left leg.

IO. Almost round hole W' x Y." approximately x bone with lacerated
markings on left leg lower part (would of entrance).

11. Lacerated injury I" x W' on the left foot below medial malicoli
F wound of exit.

Probe was made to enter through injury No. 11, if came out through
injury No. 11. Lower part of tibia and fibula were found cross bed on
opening the injured part. Injury No. IO was situated anteriorly on the
lower part of the left leg.
G
12. Lacerated injury W' x Y:z'' x l" on right leg, lower part, medially.

13. Punctured injury Yi" x 1/8" x '!."on right ankle joint anteriorly.

14. Punctured injury %" x Y." x bone on right foot anteriorly.

H 15. Punctured injury %" x 116" on sole of the left foot.
D. PANDEY v. STATE OF BIHAR [PATTANAIK, J.) 295
Third Rib on left side was found cut anteriorly, intercostal muscles A
of the third left space was also ..... dimension as per injury No. 3 Pleura
also cut for 2" in length anteriorly. Chest clot blood and blood clot,
approximately a pland of the left lung cut 3" x 'lz" x I" anteriorly. Heart,
chambers were empty, each, situated anteriorly and another laterally.
Stomach was performed in nortolateral surface along the greater
curvature size 1/6" x 1/6" x stomach cavity. Some gruel was found B
inside the stomach and a little out of the stomach. Spleen was also
punctured, about 1/6" in diameter on the front aspect depth being \14''.
Abdominal cavity had also little ceslection of blood and blood clotal."

All these injuries according to doctor were ante-mortem in nature and
injuries No. I, 3, 4 and 5 were fatal. The doctor.also stated that injuries Nos. C
I and 8 could be caused by sharp cutting weapon. Injuries No. 9, IO and I I
were caused by gunshot. Injuries No. 2, 3, 4, 5, 6, 12, 13, 14 and 15 caused
by some sharp pointed weapon and death was due to shock, haemorrhage
and injuries on the vital organs. In a case of murder where it is established
by satisfactory evidence that all the accused were acting in concert and were D
associated with each other in causing assault and multiple injuries were found
on the deceased it leaves no room for doubt that all the accused had shared
a common intention to cause death (see Aher Pitha Vajshi and others v. State
ofGujarat, AIR (1983) SC 599. In view of the nature of injuries found on the
dead body of deceased Razaullah and the weapons of assault in the hands
of the accused, it would be difficult to hold that all of them had not shared E
the common intention of killing the Razaullah which developed at the spur of
the moment on being ordered by Uttam Pandey. In fact with deadly weapons
in their hands they mercilessly assaulted deceased Razaullah and as such
their conviction under Section 302/34 is fully justified.

So far as Criminal Appeal No. 198 of 1982 is concerned the appellants F
have been convicted under Section 147 !PC and in view of number of eye-
witnesses to the occurrence many of whom are injured witnesses and those
witnesses having been believed by the learned Sessions Judge as well as by
the High Court and while discussing their evidence in the other appeal we
have also believed their testimony, we see no infirmity in conviction and G
sentence passed against the appellants in this appeal, and therefore, the said
appeal is dismissed.

In the net result, therefore, the conviction of appellants Uttam Pandey,
Janak Das, Sanjam Pandey, Upendra Narain Pandey, Jogeshwar Manda! and
Kapileshwar Manda! under Section 302/34 !PC for causing murder of Ahmed H
296 SUPREME COtJRT REPORTS [1997] SUPP. 4 S.C.R.

A Shah and the sentence passed thereunder is set aside, instead they are
convicted under Section 325/34 and they are sentenced to undergo rigorous
imprisonment for five years. The conviction. of other accused persons namely
Dukhmochan Pandey, Kamleshwar Pandey, Jiwacch Mishra, Sarabnarain
Mishra, Tapeshwar Pandey and Jainandan Mishra under Section 302/34 !PC
for causing murder of Ahmed Shah and the sentence passed thereunder is
B affirmed. The conviction of all the 12 accused persons, namely, Dukhmochan
Pandey, Shiv Narain Thakur, Shivshekhar Pandey, Sarabnarain Mishra, Sukhram
Mishra, Saukhilal Yadav, Naval Kishore Pandey, Yogendra Narain Pandey,
Mahendra Narain Pandey, Ramchandra Pandey, Jainandan Mishra and Amiri
Lal Yadav under Section 302/34 for causing murder of SK Razaullah and
C sentence passed thereunder is affirmed. Their conviction and sentence on
other counts remain unaltered. Criminal Appeal No. 197 of 1982 is partly
allowed to the extent indicated above. The conviction and sentence of the
appellants in Criminal Appeal No. 198 of 1982 is affirmed. Criminal Appeal No.
198 of 1982 is dismissed.

D The accused - appellants who are on bail are directed to surrender to
serve the balance period of sentence and in case they fail to surrender steps
may be taken for their arrest to serve the sentence.

R.K.S. Appeals allow~d.

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