CRIMINAL APPEAL 314 of 1993 on 28 September 1995

IN THE HIGH COURT OF JUDICATURE AT PATNACRIMINAL APPEAL (DB) No. 335 of 1995

Arising Out of PS. Case No.-314 Year-1993 Thana- HAJIPUR SADAR District- Vaishali======================================================1.Harendra Rai Son of Shri Jamindar Rai Resident of Village - Lalpokhar,Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.2.Abhay Shankar Nirala son of Shri Shiv Chandra Rai, Resident of Village -Lalpokhar, Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.Lalpokhar, Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.3.Jagarnath Rai Son of Shri Birchandra Rai Resident of Village - Lalpokhar,Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.Dighi (Jagdishpur), P.S. Sadar Hajipur, District - Vaishali.

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

and

HONOURABLE JUSTICE SMT. SONI SHRIVASTAVAORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)Date: 02-09-2025

The present appeal has been preferred under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to asthe “Cr.P.C.”) against the judgment of conviction and the orderof sentence dated 28.09.1995 and 29.09.1995 respectively,passed by the learned 2[nd] Additional Sessions Judge, Vaishali atHajipur, in Sessions Trial No.176 of 1994 (arising out of HajipurSadar P.S. Case No. 314 of 1993) whereby and whereunder, theappellants have been convicted under Section 307/34 of the Indian Penal Code (hereinafter referred to as the “IPC”) andunder Section 3/4 of the Explosive Substances Act, 1908(hereinafter referred to as the “Act, 1908”). By the said order ofsentence dated 29.09.1995, the appellants have been sentencedto undergo rigorous imprisonment for 10 years under Section307/34 of the IPC and have been further sentenced to undergorigorous imprisonment for 10 years under Section 3 of the Act,1908 with a fine of Rs.500/-each as also they have beensentenced to undergo rigorous imprisonment for 7 years underSection 4 of the Act, 1908 with a fine of Rs.500/- each, and indefault of payment of fine, they have been further sentenced toundergo simple imprisonment for 6 months each under Section 3and 4 of the Act, 1908. All the sentences have been directed torun concurrently.

2. Short facts of the case are that the fardbeyan of theinformant, namely Baijnath Prasad (PW-9) was recorded by theSub-Inspector of Police, Kameshwar Kumar Singh (PW-13) atSadar Hospital, Hajipur on 19.12.1993 at 22.30 hours. Theinformant has stated in his fardbeyan that on 19.12.1993, atabout 8:30 p.m., his brother Kishundeo Rai (deceased) wassitting at the door of the house of his neighbor, namely PanchhiLal Rai (PW-8) and at that time Uday Shankar Nirala (one of the

accused) had come out of his house and gone to the house ofPanchhi Lal Rai (PW-8) where his brother, namely KishundeoRai was sitting and in a state of being agitated, he had askedKishundeo Rai as to why he had objected him from playing taperecorder in the morning upon which the brother of the informanttold him that since the children were studying, it was causinginconvenience. Thereafter, Uday Shankar Nirala said thatnobody can stop him, since he is very powerful and then he hadtaken out a pistol from his waist and had fired on the brother ofthe informant, which had hit his brother on his chest, whereafterthe informant raised an alarm but being scared ran towards thevillage for calling the villagers upon which Uday Shankar Niralawent to the roof of his house. On the roof, Abhay Shankar Nirala(appellant no.2), Jagarnath Rai (appellant no.3), Harendra Rai(appellant no.1) and Kisun Rai (now dead) were already presentand had formed an unlawful assembly as also wereindiscriminately firing gun shots and hurling bombs. Kishun Raihad hurled bomb on the brother of the informant resulting in himbeing injured, whereafter Jagarnath Rai had also hurled bombwhich had hit the leg of the informant and injured him leading tohim falling down and becoming unconscious. Thereafter, thevillagers, namely Devanand Rai (PW-3), Parmanad Rai (PW-1), Raghunath Rai (PW-4), Bishwanath Rai (PW-10), KamleshwarPrasad Yadav (PW-2) and Upendra Rai had arrived there,whereupon they had lifted the injured brother of the informant,namely Kishundeo Rai and taken him to Sadar Hospital, Hajipurwhere the doctor had declared his brother to be dead, howeverthe informant was being treated at the hospital. The informanthas further stated that the motive for the occurrence is that thebrother of the informant had objected to playing of tape onaccount of the same interrupting the studies of his children.

3. The aforesaid fardbeyan of the informant was read over tohim which he had heard and understood and then he had madehis signature upon the same in presence of other witnesses, i.e.Devenand Rai (PW-3), Raghunath Rai (PW-4) and Jiwanand Rai(PW-7) as also the same was signed by the Sub-Inspector ofPolice, i.e. Kameshwar Kumar Singh (PW-13).On the basis ofthe aforesaid fardbeyan of the informant, Hajipur Sadar P.S.Case No. 314 of 1993 was registered under Sections 302, 307/34of the IPC, Section 27 of the Arms Act and Section 3/4 of theAct, 1908 against the appellants and two others, who have diedduring the pendency of the present appeal. The police had thenconducted investigation and finding the case to be true, had filedcharge-sheet dated 12.03.1994 against five accused persons, including the appellants. The learned Trial Court uponconsideration of the materials on record and the charge-sheetfiled by the police had taken cognizance of the offences on14.11.1994 under the aforesaid sections. Thereafter, the case wascommitted to the Court of Sessions, vide order dated 03.12.1994and was numbered as Sessions Trial No.176 of 1994. Aftertaking into consideration the charge-sheet and the materialscollected during the course of investigation, the learned TrialCourt framed charges against the appellants vide order dated21.04.1995 under Sections 302/149 and 307 of the IPC andSections 3/4 of the Act, 1908 to which they pleaded not guiltyand claimed to be tried.

4. During the course of trial, 15 witnesses were examined onbehalf of the prosecution, PW-1 Parmanand Rai, PW-8 PanchhiLal Rai and PW-9 Baijnath Rai are said to be eye witnesses tothe said occurrence. PW-2 Kamleshwar Prasad Yadav and PW-3Devanand Rai are witnesses to the inquest report as alsosignatory to the fardbeyan. PW-4 Raghunath Rai, PW-6 DineshKumar and PW-10 Bishwanath Rai are tendered witnesses whilePW-5 Sunil Kumar is witness to the seizure list. PW-7 JiwanandRai is a witness to the fardbeyan. PW-11 is the doctor, who hadconducted post-mortem examination of the dead body of the deceased brother of the informant. PW-12 Uttim Singh is apolice official while PW-13 Kameshwar Kumar Singh is also apolice official. PW-15 Sangita Kumari is the investigatingofficer of the present case and PW-14 is the clerk in the DistrictLaw Office, Hajipur, who has proved the sanction order ofprosecuting the appellants under the provisions of the Act, 1908.

5. The prosecution, by way of documentary evidence, hadproved the following documents, which were marked as exhibitsduring the course of the trial:- EXHIBIT NO.DESCRIPTION Exhibit No.1Signature of Kamleshwar Pd. Yadav on theinquest report.Exhibit No.1Signature of Jiwanand Rai on the fardbeyan.Exhibit No.1/1Signature of Devanand Rai on the fardbeyan.Exhibit No.1/2Signature of Devanand Rai on the inquestreport.Exhibit No.1/3Signature of Sunil Kumar on the seizure-list.Exhibit No.1/4Signature of Dinesh Kumar on the Seizure-listExhibit No.2Signature of Jiwanand Rai on the fardbeyan.Exhibit No.2/1Signature of Raghunath Rai on the fardbeyan.Exhibit No.3Signature of Baidyanath on the fardbeyan.Exhibit No.4Injury report of Baidyanath Prasad.Exhibit No.5Post-mortem report of Kishundeo Rai.Exhibit No.6Seizure ListI.Blood-Soaked mud.

II. Pieces of tin.III. Sutari (small rope)IV. Doll made of Iron.V. Pieces of stone.VI. Nails.VII. Pieces of glass.VIII. Pellet. Exhibit No.7Fardbeyan.Exhibit No.7/1Formal FIRExhibit No.8Inquest report.Exhibit No.9Sanction of prosecution Letter.Exhibit No.10Para No. 55 of the Case-diary of P.S. CaseNo.318/93.Exhibit No.11Order sheet dated 16.09.1993Exhibit No.11/1 Order sheet dated 16.02.1994Exhibit No.11/2 The final page of P.S. Case No.318/93

6. Thereafter, the defence had also examined the investigatingofficer of the present case, Sangita Kumari as DW-1 and hadproved the following documents, by way of documentaryevidence:- EXHIBIT NO. DESCRIPTION Exhibit No.AWriting of K.K. Singh on the back of injury report.Exhibit No.BFardbeyan of Sadar P.S. Case No.318/93Exhibit No.B/1Formal FIRExhibit No.CReport of Dayashankar Rai with regard to injury of Jagirdar Rai.Exhibit No.DSeizure ListExhibit No.D/1Seizure ListExhibit No.ESignature of SDPO on the supervision note.Exhibit No.C/1Injury report of Jamindar RaiExhibit No.C/2Injury report of Jamindar RaiExhibit No.FOrder sheet dated 10.05.1990Exhibit No.B/2Formal FIRExhibit No.B/3Fardbeyan.

7. The learned counsel for the appellants has submitted thatin the FIR, there is specific allegation with regard to theappellant no.1, namely Harendra Rai having hurled a bombleading to the same having hit the roof (Chhaja), however PW-1Parmanand Rai has stated in his evidence that Kishun Rai hadhurled a bomb which had hit Kishundeo Rai (deceased) andJagarnath Rai (appellant No. 3) had hurled bomb which had hitBaijnath Prasad, the informant (PW-9) as also Harendra Rai hadhurled a bomb, which had hit the protruded part of the roof(Chhajja). As far as PW-3 Devanand Rai is concerned, he hasstated that Kishun Rai had hurled a bomb from the roof, whichhad hit Kishundeo Rai (deceased), whereafter Jagarnath Rai hadhurled a bomb which had hit Baijnath Prasad and then HarendraRai had hurled a bomb which had hit the roof. As far as PW-8 is concerned, he has stated in his evidence that Kishun Rai hadhurled a bomb which had hit Kishundeo Rai, whereafterJagarnath Rai had hurled a bomb which had hit Baijnath Prasadand then Harendra Rai had hurled a bomb which had hit theroof. As regards PW-9 Baijnath Prasad, i.e. the informant, it issubmitted that though he has stated about the bombs beinghurled by Harendra Rai (appellant No.1) and Jagarnath Rai(appellant No.3) which had hit the roof (Chhajja) and theinformant respectively, however there is no whisper about bombbeing hurled by Abhay Shankar Nirala. Thus, it is submitted thatif the contents of the first information report is read togetherwith the evidence of PW-1, PW-3, PW-8 and PW-9, it would beapparent that contradictory stand has been taken and there is nowhisper about the appellant No.2 having hurled any bomb whilethere is contradiction in the mode and manner of hurling ofbomb by the accused persons.

8. The learned counsel for the appellants has furthersubmitted that since the occurrence had taken place in the monthof December at around 8:30 p.m., it is difficult to visualise thatany witness would have been present there, nonetheless theprosecution has surprisingly produced witnesses who claim tobe eye witnesses to the occurrence in question. It is next submitted that though the wife of the deceased is stated to bepresent at the place of occurrence, however her evidence hasbeen withheld, which creates a suspicion regarding theprosecution having suppressed the actual mode and manner ofoccurrence. It is contended that while in the inquest report,bleeding injury has been found on left chest and right side ofback, however in the post-mortem report entry wound of bullethas been found on left chest, while exit wound has been foundon the back of left chest. Thus, it is submitted that there isdiscrepancy in between the injury mentioned in the inquestreport vis-à-vis injury mentioned in the postmortem report.Lastly, it is submitted that PW-2 and PW-3, who are witnesses tothe inquest report and the fardbeyan were examined by thepolice after 15 days for the first time on 04.01.1994, althoughthey were present at the time of preparation of the inquest reportand recording of the fardbeyan of the informant as also werepresent for the entire night in the hospital. Thus, it is submittedthat the judgment of conviction and order of sentence is full ofinconsistencies and fit to be set aside.

9. The learned Additional Public Prosecutor for the State,Ms. Shashi Bala Verma has submitted that all the witnessesexamined by the prosecution are consistent and there is no contradiction in their evidence as also the defence has not beenable to elicit any contradictions while cross-examining them. Itis also apparent from the first information report and theevidence available on record that the appellant no.1 had hurled abomb, which had exploded on the roof (chhajja) as also hadhurled a bomb which had not exploded and subsequently livebomb was found from the roof of the hut whereas Jagarnath Rai(appellant no.3) had hurled a bomb on the informant which hadhit middle part of his leg and the same also stands substantiatedfrom the injury report. It is thus, submitted that there is noinfirmity in the judgement of conviction and order of sentencepassed by the learned Trial Judge, hence this Court is notrequired to interfere with the same.

10. Besides hearing the learned counsel for the parties, wehave minutely perused both the evidence, i.e. oral anddocumentary. Before proceeding further, it is necessary tocursorily discuss the evidence led by the prosecution.

11. PW-1 Parmanand Rai has stated in his evidence that theoccurrence dates back to about 17 months at about 8:30 p.m. inthe night when he was sitting on the stairs of veranda of hishouse along with Kishundeo Rai. Thereafter, Uday ShankarNirala had arrived there and in an agitated mood had asked Kishundeo Rai as to why he had told him not to play tape in themorning, upon which Kishundeo Rai had replied that since thestudies of his children were being impeded, he had told him notto play the tape. Thereupon, Uday Shankar Nirala had told himthat he is the most powerful person of the village and nobodycan stop him from playing the tape, whereafter while KishundeoRai was standing on the stairs, Uday Shankar Nirala had takenout a pistol from his waist and pointed the same on KishundeoRai and fired on him leading to gunshot injury being inflicted onthe left chest of Kishundeo Rai, whereupon he had fallen downand then Uday Shankar Nirala had gone running to the roof ofhis house where Harendra Rai (appellant no.1), Jagarnath Rai(appellant no.3), Abhay Shankar Nirala (appellant no.2) andaccused Kishun Rai were present, who had then started hurlingbombs. The bomb hurled by Kishun Rai had hit Kishundeo Rai(Deceased), bomb hurled by Jagarnath Rai had hit BaijnathPrasad (Informant) and the bomb hurled by Harendra Rai had hitprotruded part of the roof (chhajja). At the time of occurrence,Devanand Rai (PW-3), Panchhi Lal Rai (PW-8), Baijnath Prasad(informant) and Vishwanath Rai (PW-10) were present there. Onaccount of being hit by the bomb Kishundeo Rai and BaijnathRai had become injured. The deceased was then required to be taken to the hospital in an injured condition but since theaccused persons were hurling bombs, brother of PW-1, namelyPanchhi Lal Rai (PW-8) had resorted to three firing in air by hislicensed gun leading to the accused persons fleeing away.Thereafter, the deceased was brought at the Hospital at Hajipur,where Kishundeo Rai was declared dead while Baijnath Prasadwas being treated. PW-1 had recognised the accused personsstanding in the dock.

12. In cross-examination, PW-1 has stated that the witnessesto the occurrence, namely Devanand Rai (PW-3), Panchhi LalRai (PW-8) and Jiwanand Rai (PW-7) are his own brothers. PW-1 has also stated that on the eastern side of his house, open spaceand road is situated and in front of his house, the house of UdayShankar Rai is situated and towards the southern side of thehouse of Uday Shankar Rai, the house of Chhedi Rai is situated.He has also stated that he along with Raghunath Rai, PanchhiLal Rai, Devanand Rai are accused in a case of dacoity. Inparagraph no.15 of his cross-examination, PW-1 has stated thatZamindar Rai had filed a counter case bearing Hajipur SadarP.S. Case No.318 of 1993 against them. In paragraph no.16 ofhis cross-examination, PW-1 has stated that the occurrence hadtaken place for 1-1½ minutes and no overt act was resorted to from his side and at the end Panchhi Lal Rai (PW-8) had firedthree gun shots in the air. He has also stated that electric lightwas present there and on the roof also electric bulb wasavailable. He has stated that gun shot fired by Panchhi Lal Raidid not hit anyone. He has next stated that on the northern/western side of the house of Uday Shankar Nirala, there is a hutwhich belongs to Jagarnath Rai and towards the southern/easternside of the said hut, house of Uday Shankar Nirala is situated. Inparagraph no.19 of his cross-examination, PW-1 has stated thatwhen the police came, he was not present and he had met thepolice in the night of the occurrence at 2 a.m. at the place ofoccurrence. In paragraph no.22 of his cross-examination, PW-1has stated that the police had not seized any pellet or bullet fromthe place of occurrence in his presence. He has stated that he hadseen bleeding injury on the chest of the deceased but he couldnot see his back. He has also stated that though it was the monthof December, but it was not very cold.

13. In paragraph no.25 of his cross-examination, PW-1 hasstated that he had told the police that Uday Shankar Nirala hadtold him that since he is powerful, nobody can stop him fromplaying tape. In paragraph no.26 of his cross-examination, PW-1has stated that he had told the police about hurling of bombs but he had not told that the bomb had hit the protruded portion ofthe roof (chhajja). In paragraph no.29 of his cross-examination,PW-1 has stated that he had seen the person who had fired gunshot on the deceased from a distance of about four hands’ lengthand at that time they were standing adjacent to the deceasedwhereas Panchhi Lal Rai was standing on the road side at adistance of 8 feet from the deceased. PW-1 has stated that whengun shots were fired, they had not fled away and were standingon the veranda. In paragraph no.30 of his cross-examination,PW-1 has stated that the injury of bomb was inflicted onKishundeo Rai and Baidyanath Prasad. In paragraph no.32 of hiscross-examination, PW-1 has stated that one gun shot wasinflicted on the deceased, which had resulted in serious injuryand as far as bomb is concerned, the same had resulted in thedeceased sustaining three injuries, i.e. on left hand, head andlittle bit everywhere. In paragraph no.33 of his cross-examination, PW-1 has stated that no dispute was existing frombefore. In paragraph no.34 of his cross-examination, PW-1 hasstated that he had not seen any injury on the body of ZamindarRai and when he had gone there also, he did not find ZamindarRai. In paragraph no.35 of his cross-examination, PW-1 hasstated that all the females of the house were inside the house and

upon hearing the sound of firing, only the wife of the deceasedhad come outside the house.

14. PW-2 Kamleshwar Prasad Yadav has stated in hisevidence that the occurrence dates back to 17 months at about8:30 p.m. in the night when he was at his house and then heheard the sound of gunshot firing and explosion of bomb,whereafter he came running to the place of occurrence. On theway, near the house of Bhola Rai on the road, he saw theaccused persons including the appellants fleeing away. PW-2 hasalso stated that when he asked Uday Shankar Prasad as to whatwas the matter, he did not say anything, however, he wasrunning away in a state of nervousness. PW-2 has further statedthat after he reached the house of Panchhi Lal Rai, he sawKishundeo Rai was smeared with blood and was lying in anunconscious state as also Baijnath Prasad had been injured andat that place Parmanand Rai (PW-1), Panchhi Lal Rai (PW-8),Devanand Rai (PW-3), Baidyanath Prasad (PW-9), BishwanathRai (PW-10), Raghunath Rai (PW-4), Upendra Rai and one ladywere present as also the people present there were makingarrangement to take the injured to the hospital. After KishundeoRai was taken to the hospital, he was declared dead. TheOfficer-in-charge had come at the hospital and had prepared the inquest report on which PW-2 had signed which he hasidentified and the same has been marked as Exhibit-1. PW-2 hadrecognized the accused persons standing in the dock. Inparagraph no.6 of his cross-examination, PW-2 has stated thatafter the incident, he was not present at the place of occurrencewhen the police had come for inspection, however he again saidthat he had seen the police for the first time at the hospital, buthis statement was recorded on 4[th] January, 1994 by the police atthe place of occurrence. In paragraph no.9 of his cross-examination, PW-2 has stated that it is not a fact that he had nottold the police about the name of the other accused persons otherthan Uday Shankar Nirala.

15. PW-3 Devanand Rai has stated in his evidence that theoccurrence dates back to 17 months at about 8:30 p.m. in thenight when he was at his house when he heard the sound ofquarrelling and then he came outside his house whereupon hesaw that Uday Shankar Nirala had taken out a pistol from hiswaist and had fired gun shot on Kishundeo Rai leading to himfalling down on account of being hit by gun shot. Thereafter,Uday Shankar Nirala had gone to the roof of his house whereKishun Rai, Harendra Rai, Jagarnath Rai and Abhay ShankarNirala were present from before. Thereafter, Kishun Rai had hurled a bomb from the roof which hit Kishundeo Rai, JagarnathRai had hurled bomb which hit Baidyanath Prasad and HarendraRai had hurled a bomb which hit the roof. He has also stated thatit was necessary to take the injured to the hospital, but bombwas regularly being hurled and then Panchhi Lal Rai had gone tohis southern room and from southern window he had fired threegun shots in air and then the accused persons had fled away,whereafter the injured persons were taken in a maruti car to theSadar Hospital at Hajipur where the doctor had declaredKishundeo Rai to be dead, however, the treatment of BaidyanathPrasad had started. Thereafter, the police had recorded thefardbeyan of Baidyanath Prasad on which PW-3 had put hissignature as a witness which he has identified and the same hasbeen marked as Exhibit-1/1. PW-3 has also stated that theinquest report was prepared by the Officer-in-charge at thehospital on which he had also put his signature which he hasidentified and the same has been marked as Exhibit-1/2. PW-3had identified the accused persons standing in the dock.

16. In paragraph no.7 of his cross-examination, PW-3 hasstated that he had stated before the police that after UdayShankar Nirala had fired gun shot, he had gone to the roof of hishouse. He had also stated before the police that on the roof,

Kishun Rai, Harendra Rai, Jagarnath Rai and Abhay ShankarNirala were present from before. He had also told that the bombhurled by Kishun Rai had hit Kishundeo Rai and the bombhurled by Jagarnath Rai had hit Baidyanath Prasad resulting inthem sustaining injuries. In paragraph no.12 of his cross-examination, PW-3 has stated that the hospital is at a distance of3 kilometres from the place of occurrence. In paragraph no.13 ofhis cross-examination, PW-2 has stated that when the statementof Baidyanath Prasad was being recorded, he was present there,but Panchhi Lal Rai had returned back immediately. Inparagraph no.17 of his cross-examination, PW-3 has stated thatwhen he had come outside after hearing hulla (alarm), he sawthat Parmanand Rai, Panchhi Lal Rai, Baidyanath Prasad,Vishwanath Rai, Kishundeo Rai (deceased) and the wife ofdeceased were present there and Uday Shankar Nirala had comethere. In paragraph no.19 of his cross-examination, PW-3 hasstated that after half an hour of the deceased being shot bygunshot firing, bomb was hurled and at that time, they all wereat the veranda which is eastern facing and when they were at theveranda, bomb had not hit anyone but the bomb had hit thosewho were outside the veranda. In paragraph no.20 of his cross-examination, PW-3 has stated that he had not seen the gun shot fired by Panchhi Lal Rai having hit anyone. PW-3 has stated thathe had given his statement to the investigating officer on04.01.1993 (should be 04.01.1994). In paragraph no.23 of hiscross-examination, PW-3 has stated that he was at the hospitalall throughout the night and the Officer-in-charge had arrived atthe hospital for recording the fardbeyan at 10:00 p.m. in thenight and he had left the hospital at around 10:30 in the night.

17. PW-4 Raghunath Rai, PW-6 Dinesh Kumar and PW-10Vishwanath Rai are the tendered witnesses. As far as PW-4 isconcerned, nothing significant is forthcoming from his evidence.As far as PW-6 is concerned, he has stated that certain articleswere seized from a place situated at one hand distance towardseastern side of ladder of the house of Panchhi Lal Rai. PW-6 hasalso stated that the seizure-list was prepared in his presencewhich was read over to him and after hearing it he had put hissignature over the same. He has also stated that the articlesseized from the veranda in question are kanti (nail), sutari(small rope), piece of tin and live bomb from the madai (roof ofthe hut). PW-6 has identified the seizure-list, which has beenmarked as Exhibit-1/3 and he has said that the same wasprepared in his presence and signed by him. PW-10 has stated inhis evidence that Zamindar Rai is father of Uday Shankar Rai and the deceased Kishundeo Rai as also the informant are hisown brother.

and the deceased Kishundeo Rai as also the informant are hisown brother.

18. PW-5 Sunil Kumar has stated in his evidence that theoccurrence dates back to 19.12.1993 at about 11 p.m. in thenight and the officer-in-charge had prepared the seizure list inhis presence pertaining to mud soaked with blood, bullet ofpistol, small nails, pieces of tin, stone and glass, half burntsutari (small rope), which was read over to him and afterhearing the same, he had put his signature over the same whichhe has identified and the same has been marked as Exhibit 1/3.He has also stated that Dinesh Kumar (PW-6) had also signedthe seizure list in his presence and he has identified his signaturewhich has been marked as Exhibit-1/4. PW-5 has also stated thatafter half an hour of preparing the seizure-list, the police officerUttim Singh had also seized one tape recorder, 28 cassettes andone stabilizer from the house of Shiv Chandra Rai. At that timeone live bomb was also recovered from the roof of the hut ofVeer Chand Rai, apart from seizure of 2-4 small nails and halfburnt sutari (small rope), whereafter seizure list was prepared onwhich he had made his signature.

19. PW-7 Jiwanand Rai has stated in his evidence that theoccurrence dates back to 19.12.1993 on which date the injured Baidyanath Prasad had given his statement at Sadar Hospital,Hajipur in his presence and at that time, Raghunath Rai andDevanand Rai were also present there. The Officer-in-charge,who had recorded the fardbeyan of Baidyanath Prasad had readover the same which Baidyanath Prasad had heard and uponfinding the same to be correct, he had put his signature over thesame which was also signed by him, apart from Raghunath Raihaving also put his signature over the same and both thesignatures have been identified by PW-7, which have beenmarked as Exhibit 2 and 2/1. In paragraph no.4 of his cross-examination, PW-7 has stated that he was present in the hospitalfor half an hour and after sometime, the Superintendent ofPolice had also arrived there. In paragraph no.6 of his cross-examination, PW-7 has stated that at the inception, BaidyanathPrasad was unconscious, but when he regained consciousnessthe officer-in-charge had recorded his statement. In paragraphno.7 of his cross-examination, PW-7 has stated that he had notseen the occurrence taking place with his own eyes. Inparagraph no.8 of his cross-examination, PW-7 has stated thathis statement was not recorded before the police.

20. PW-8 Panchhi Lal Rai has stated in his evidence that theoccurrence dates back to about 20 months at about 8 p.m. in the night when he was at his house where Kisundeo Rai andParmanand Rai (PW-1) were also present and there UdayShankar Nirala had arrived and had told Kishundeo Rai as towhy he had objected him from playing the tape, whereuponKishundeo Rai had told that his son has problem in studying onaccount of the sound, hence he had objected to playing tapewhich led to eruption of quarrel in between them. Uday ShankarNirala had then got agitated and had fired gun shot on the chestof Kishundeo Rai and upon being inflicted gunshot injuryKishundeo Rai had fallen down on the ground whereupon UdayShankar Nirala had fled away to the roof of his house and fromthe roof of his house, bombs were hurled by Jagarnath Rai,Kishun Rai and Abhay Shankar. The bomb hurled by Kishun Raihad hit Kishundeo Rai on the space in between the fingers of hisleft hand. The bomb hurled by Jagarnath Rai had hit both theknees of the legs of Baidyanath Prasad. The bomb hurled byHarendra Rai had hit the roof. After the bomb was hurled, PW-8had gone to the room situated on the southern side and from thesouthern window, he had fired three gun shots in air from hislicensed gun, whereafter the accused persons had fled awayfrom the roof. PW-8 has stated that he had then taken the injuredpersons on a maruti car to the Sadar Hospital, Hajipur where

Kishundeo Rai was declared dead by the doctor and the injuredBaidyanath Prasad’s treatment was started. PW-8 has recognizedthe accused persons standing in the dock.

21. In paragraph no.16 of his cross-examination, PW8 hasstated that it was moonlit night on the day of occurrence andelectric light was also there. In paragraph No.17 of his cross-examination, PW-8 has stated that Uday Shankar Nirala hadcome out from his house and after taking out pistol from hiswaist, he had fired and quarrel had taken place for 2½-3 minutesand at the time quarrel was taking place, altogether 8 personswere present there. In paragraph no.20 of his cross-examination,PW-8 has stated that the bomb was being hurled from the roof ofthe house of Uday Shankar Nirala. In paragraph no.24 of hiscross-examination, PW-8 has stated that those people who wereat veranda did not sustain bomb injuries. In paragraph no.26 ofhis cross-examination, PW-8 has stated that two persons hadsustained bomb injuries. In para no.27 of his cross-examination,PW8 has stated that he had stated before the police that thebomb which had hit Kishundeo Rai had hit him in betweenspace of 3 fingers. In para no.28 of his cross-examination, PW-8has stated that he had also told the police that Harendra Rai hadalso hurled bomb. In paragraph no.29 of his cross-examination, PW-8 has stated that the bomb was hurled for about 2-2½minutes and then he had fired from his gun. In para no.35 of hiscross-examination, PW-8 has stated that when he had returnedback from the hospital, the Officer-in-charge and theSuperintendent of Police had come at his house, however hislicensed gun was not seized and he had deposited his arms withthe arms shop at Hajipur. In para no.40 of his cross-examination,PW-8 has stated that after 2 days, the accused persons had alsofiled a counter case in which they have been made accused.

22. PW-9 Baidyanath Prasad, who is the informant of thepresent case, has stated in his evidence that the occurrence datesto 20 months at about 8:30 p.m. in the night. In paragraph Nos.2to 7 of his examination-in-chief, he has narrated exactly thesame story as has been recited by him in his fardbeyan. Inparagraph No.8, PW-9 has stated that he had taken the injuredand others on his maruti car to the Sadar Hospital, Hajipur. Hehas also stated that the reason for the quarrel is playing of tapeby Uday Shankar Nirala leading to the children of the deceasedhaving difficulty in studying. He has also stated that hisstatement was recorded by the Officer-in-charge at the hospital,which was read over to him and upon finding the same to becorrect, he had put his signature over the same which he has identified and the same has been marked as Exhibit-3. In hispresence, Devanand Rai, Jiwanand Rai and Raghunath Rai hadalso put their signature over his fardbeyan which has alreadybeen exhibited as Exhibit-2. He has also stated that in the nightof the incident, the Officer-in-charge had recorded hisrestatement at about 1:20 a.m. in the night. PW-9 has recognizedthe accused persons standing in the dock.

23. In paragraph no.19 of his cross-examination, PW-9 hasstated that the officer-in-charge had taken his statement inhospital at 10:30 p.m. and on the second occasion his statementwas taken by madam at 1:20 a.m. in the night. In paragraph No.20 of his cross-examination, PW-9 has stated that he hadbecome unconscious at the place of occurrence but thereafterduring the course of treatment, he did not become unconscious.In paragraph No.22 of his cross-examination, PW-9 has statedthat when the bomb was hurdled, he had not fled away. In hiscross-examination, PW-9 has also described the area situated inand around the actual place of occurrence. In paragraph no.28 ofhis cross-examination, PW-9 has stated that he does not knowabout the incident which had taken place earlier in the morningregarding playing of tape, when for the first time quarrel hadtaken place in between Uday Shankar Nirala and Kishundeo

Rai. In paragraph no.30 of his cross-examination, PW-9 hasstated that when Uday Shankar Nirala had arrived at the place ofoccurrence, at that time Parmanand Rai was also sitting on thestairs along with Kishundeo Rai. In paragraph No.31 of hiscross-examination, PW-9 has stated that when he, for the firsttime looked towards the place of occurrence, he saw KishundeoRai and Uday Shankar Nirala quarrelling amongst them. Inparagraph No.33 of his cross-examination, PW-9 has stated thatwhen the gun shot was fired, his younger brother BishwanathRai and wife of Kishundeo were also standing near the gairajand immediately upon gun shot being fired, the wife ofKrishnadeo Rai became unconscious. In paragraph No.36 of hiscross-examination, PW-9 has stated that Uday Shankar Niralahad fired approximately from a distance of 5-6 feet and then hehad ran away towards his house, however nobody tried to catchhold of Uday Shankar Nirala. In paragraph no.41 of his cross-examination, PW-9 has stated that the shots firing by PanchhiLal Rai did not hit anyone. Upon question being asked regardingPW-9 having not recited the incident of firing being resorted toby Panchhi Lal from his room situated on the southern side, PW-9 has stated that he had narrated the said incident in his re-statement. In paragraph no.48 of his cross-examination, PW-9

has stated that in his presence, no witness had made anystatement before the police during the entire night. In paragraphno.49 of the cross-examination, PW-9 has stated that they hadreached at the hospital at about 8:45 p.m. in the night and atabout 10:30 p.m., the Officer-in-charge had come to record hisstatement, however before his statement was recorded by theOfficer-in-charge, the doctor had already examined his injuries.In paragraph no.52 of his cross-examination, PW-9 has statedthat in the night of occurrence, while he was in hospital, nobodyfrom his family had arrived there.

24. PW-11 Dr. Praveen Kumar has stated in his evidence that on 19.12.1993, he was posted as Civil Assistant Surgeon atHajipur Sadar Hospital and on that day, he had examined theinjuries of Baidyanath Prasad (PW-9) and found the followinginjuries:- “(i) Lacerated would with blackens margin on the middleof front of left leg ¼ ” x ¼ ” x ¼ ”.of front of left leg ¼ ” x ¼ ” x ¼ ”.

(ii) Lacerated wound ¼” x ¼” x ¼” on the front ofright knee red in colour.right knee red in colour.

(iii) Abrasion 2” x ¼” on the lower part of front of rightleg.”

PW-11 had found the age of injury to be within six hours and as far as the cause of injury is concerned, he has stated that injury no.1 has been caused by explosive substance such assplinter of bomb and rest all are due to hard and blunt substancesuch as stone pieces, nonetheless he had found that the nature ofinjury to be simple. He has identified the injury report, whichhas been prepared in his pen and signature and the same hasbeen marked as Exhibit-4.

25. PW-11 has further stated that he had conducted the post-mortem examination of the dead body of the deceased and foundthe following ante-mortem injuries:- “(1) Lacerated wound on the front of left chest in the thirdinter space 2½" inside the left nipple ¼” x ¼” withblackening of margin, wound of entry.

(II) Lacerated wound on the back of left chest in the backof intra scapular region 1/3" x1/3" margins everted,communicating with injury no.1. It is wound of exit. Ifpellet pierces then two injuries are possible.

(iii) Blackening and tattooing of left fore arm and hand.On dissection:-

(i) On opening of the skull brain is pale.

(ii) Left side of chest is full of blood and blood clots.

(iii) Left lung is lacerated and collapsed.

(iv) On opening the abdomen, all the abdominal vicerasare pale. Stomach contains about 6 ounce of semi liquid.Small and large intestine contain gas and faecal matter.

Substance used- Injury No.1 and II are caused by firearms. Such as revolver, from short distance. Injury no. IIIcaused by explosive substance such as bombs.”

26. PW-11 has identified the post-mortem report, which hasbeen prepared in his writing and bears his signature and thesame has been marked as Exhibit-5. In cross-examination, PW-11 has stated that on police requisition, he had examined theinjuries of Baidyanath Prasad (PW-9) at 9:15 p.m. In paragraphno.12 of his cross-examination, PW-11 has stated that injurynos. 2 and 3 on the person of Baidyanath Prasad are alsopossible by fall, the injuries are not on vital part of the body asalso not so serious that the same would cause unconsciousnessto the injured. In paragraph no.15 of his cross-examination, PW-11 has stated that as medico legal expert, he is apprised withidentity of firearms and ammunition and there is differencebetween pistol and revolver. After firing the shot, the empty casewill remain in the chamber of revolver while in a pistol, thespent cartridge cases are automatically ejected as a part of firingof the pistol. He has also stated that there is difference betweenpellet and bullet. While bullet are fired through a barrel whichhas spiral groove cut upon the inner surface of the bore to impartrotatory motion, pellet is fired through a smooth barrel gun. Hehas also stated that inquest was sent to him prior to the post- mortem examination and in the inquest report, it is written thatinjury is on the back, on the right side. In paragraph No.22 of hiscross-examination, PW-11 has stated that he had found solitarybleeding wound on the left side of the back. In paragraph no.23of his cross-examination, PW-11 has stated that the inquestreport and the post-mortem report are not commensurating butin the inquest report it is mentioned right side of the back ofchest, which may be due to slip of pen. In paragraph no.28 of hiscross-examination, PW-11 has stated that where the firing rangeis short, the perforation of the entry wound is enlarged due toprojectile and due to pressure of gases. In paragraph no.30 of hiscross-examination, PW-11 has stated that if a splinter of anexplosive comes in contact with the injury no.1, it may haveblackening colour around.

27. PW-12 Uttim Singh has stated in his evidence that on19.12.1993 he was posted as Inspector of Police at HajipurSadar Hospital and on the said day, in the night of 19.12.1993 atabout 23:00 hours, he had gone to the house of Panchhi Lal Rai(PW-8) and had seized half burnt sutari (small rope), smallnails, iron pieces, pieces of stones and glass, blood mixed soil,pellet, edge whereof had become blunt and had prepared theseizure list in presence of PW-5 and PW-6, who had also put their signature over the same. PW-12 has identified his signatureas also the signature of PW-5 and PW-6 made over the seizure-list and the same have been marked as Exhibit-6. PW-12 hasdescribed the articles seized by him as follows:-

(i) blood mixed mud.

(ii) pieces of tin-5.

(iii) half burnt sutari (small rope).

(iv) pieces of iron-4

(v) pieces of stone-3

(vi) nail-3

(vii) pieces of glass-4

(viii) pellet-1

28. In cross-examination, PW-12 has stated that aforesaidmaterial exhibits have been brought in the court, but nomalkhana number is indicated, however he has stated thatwhenever material exhibit is seized and is brought to the policestation, entry is made in the station register and malkhanaregister. He has also stated that from looking at the materialexhibit, it cannot be deciphered that entry thereof has been madein the station diary. In paragraph no.4 of his cross-examination,PW-12 has stated that he is not the investigating officer of thepresent case and he had given seized article to Sangita Kumari atthe police station. In paragraph No.5 of his cross-examination,PW-12 has stated that the seized explosive substance was examined by the ballistic expert. In paragraph No.8 of his cross-examination, PW-12 has stated that he had reached at the placeof occurrence at 23:00 hours in the night and had returned in themorning, whereafter he had gone back to the police station atabout 10-11:00 a.m. In para no.11 of his cross-examination, PW-12 has stated that when he reached at the place of occurrence at23:00 hours, the investigating officer, namely Sangita Kumariwas not with him and she came at the place of occurrence at1:00 a.m. in the night whereafter, she was told that the injuredare alive and then she had gone to the Hajipur Hospital. In parano.12 of his cross-examination, PW-12 has stated that the seizedarticles including the splinter & bullet, etc. were not sent to theballistic expert because the ballistic expert had come to thepolice station and had conducted examination.

29. PW-13 Kameshwar Kumar Singh has stated in hisevidence that he was posted as Inspector of Police at TownPolice Station, Hajipur on 19.12.2023 and on the same day, at22:30 hours, he had recorded the fardbeyan of BaidyanathPrasad at Sadar Hospital, Hajipur, whereafter he had read overthe same to Baidyanath Prasad and upon finding the same to becorrect, he had put his signature. Thereafter, witnesses i.e.Devanand Rai (PW-3), Jiwanand Rai (PW-7) and Raghunath Rai (PW-4) had also put their signature over the same which he hasrecognized. PW-13 has identified the fardbeyan, which is in hiswriting and bears his signature and the same has been marked asExhibit-4. He has also stated that thereafter, he had sent thefardbeyan to the Sadar Police Station, Hajipur. PW-13 hasfurther stated that he had prepared the inquest report of thedeceased Kishundeo Rai on 19.12.1993 at 22:45 hours in thepresence of witnesses i.e. PW-3 and PW-2 who had also puttheir signature over the same voluntarily. PW-13 has identifiedthe carbon copy of the inquest report, which has been marked asExhibit-8. In paragraph No.5, PW-13 has stated that bleedinginjuries were found on the left chest and on the back over rightside of the deceased. Injury was also present at various places onleft hand as also burnt injuries were present which appeared tohave been sustained by firearms and bombs. In paragraph no.7,PW-13 has stated that it appears that the deceased was murderedby injuring him by bullet and bomb. In paragraph No.9 of hiscross-examination, PW-13 has stated that he had prepared theinquest report at 22:45 hours and had also prepared the injuryreport of Baidyanath Prasad, which he has identified and hasstated that the same is in his writing and the same has alreadybeen marked as Exhibit-4. In paragraph no.10 of his cross-

examination, PW-13 has stated that the injury report is on theback of Exhibit-4 which is in his writing and bears his signatureand the same has been marked as Exhibit-A. In paragraph no.15of his cross-examination, PW-13 has stated that at the end of theinquest report, he has mentioned the date as 13.12.1993 bymistake which is on account of slip of pen.

30. PW-14 Sitesh Kr. Chaudhary has stated in his evidencethat he is posted as Clerk in the office of District Law Office,Hajipur since 1992. He has identified the letter dated 20.12.1993granting sanction to prosecute the accused under the provisionsof the Act, 1908, which has been marked as Exhibit-9.

31. PW-15 Sangita Kumari is the investigating officer of thepresent case and she has stated in her evidence that on19.12.1993, she was posted as Probationer DeputySuperintendent of Police in the district of Vaishali. On19.12.1993, she was posted as Officer-in-charge of Sadar TownPolice Station, Hajipur and on 19.12.1993 at 21:00 hours shereceived information from the In-charge Sub-Inspector ofPolice, Sadar Police Station on telephone that sound of gunshotfiring and explosion of bomb is coming from Lalphokharvillage. Thereafter, she had made entry in the station diarybearing No.451 and along with other police personnel had left for Lalpokhar village and upon reaching there it transpired thatBaidyanath Prasad and Kishundeo Rai have been inflicted withgunshot and bomb injuries and they have been taken to thehospital, whereafter they left for Sadar Hospital, Hajipur and onthe way, they had stopped at Town Police Station wherefardbeyan of Baidyanath Prasad was received and then PW-15had undertaken the investigation of the present case and sent thefardbeyan to Sadar Police Station for institution of the firstinformation report. At about 1:05 a.m., PW-15 had left for SadarHospital from Town Police Station and reached there at 1:20a.m. where she had recorded the restatement of the informant ofthe present case, namely Baidyanath Prasad (PW-9) and he hadfully reiterated the statement made by him in his fardbeyan.However, the statement of other witnesses could not be recordedsince they were not present there. Thereafter, she had reached atthe place of occurrence at 2:00 a.m. in the night and inspectedthe place of occurrence in the light of electric bulb, torch andpetromax. In paragraph no.3, PW-15 has described the place ofoccurrence.

32. PW-15 has also stated that according to the informant,deceased-Kishundeo Rai was shot in the open space situated infront of the house of Panchhi Lal Rai by the accused Uday Shankar Nirala on account of which blood had fallen in front ofthe house as also in front of staircase in huge quantity which shehad found. She had also seen blood having fallen on thevaranda situated outside the house as also in the courtyardsituated inside the house. She had also found remains ofexplosive substance in the front portion of the house in thevaranda and near the staircase. PW-15 had also seen blackmarks on the roof of the wall situated in front of the said housewhich appears to have been caused by explosive substance. Inparagraph no.4, PW-15 had described the articles seized by her,which have already been described hereinabove. PW-15 hadseized the aforesaid articles. PW-15 had seen drops of blood allover the gallery starting from the veranda as also she had found,near the staircase, remains of explosive substance including ironpieces, pieces of tins, nails and half burnt sutari (small rope). Inparagraph no.5, PW-15 has stated that one live bomb wasrecovered from the roof of the hut situated adjacent to the placeof occurrence. In paragraph no.7, PW-15 has stated that theseizure-list was prepared by her in presence of SI Uttim Singh.PW-15 has also stated that she had recorded the statements ofPanchhi Lal Rai (PW-8), Parmanand Rai (PW-1), Malti Devi,Vishwanath Rai (PW-10), Kamleshwar Prasad Yadav(PW-2),

Upendra Rai, Devanand Rai (PW-3) and Raghunth Rai (PW-4),who have fully supported the FIR. In paragraph No.9, PW-15has stated that she had received the injury report of BaidyanathPrasad and the post-mortem report of the deceased from theSadar Hospital, Hajipur. She had also received supervisionreport and the letter sanctioning prosecution from the DistrictMagistrate, Vaishali. PW-15 has also stated that upon finding thecase to be true, she had submitted charge-sheet against theaccused persons.

33. In paragraph no.22 of her cross-examination, PW-15 hasstated that though the seized blood was sent for examination,however she has not stated about the same in the case-diary. Inparagraph no.23 of her cross-examination, PW-15 has stated thatthough the splinter, sutari, nails, etc. had been examined at thepolice station itself, however till filing of the charge-sheet, thereport had not been received. In paragraph no.24 of her cross-examination, PW-15 has stated that seizure list of remains ofexplosive substance seized from the house and hut of UdayShankar Nirala has not been mentioned in this case since aseparate case has been lodged for the same. In paragraph no.27of her cross-examination, PW-15 has stated that she hadrecorded the statement for the first time on 04.01.1994 of PW-2

Kamleshwar Prasad Yadav, PW-3 Devanand Rai and PW-4Raghunath Rai, but she had not recorded the statement of PW-9Baidyanath Rai. In paragraph no.28 of her cross-examination,PW-15 has stated that she has not brought the material exhibitsfrom the police station. In paragraph no.38 of her cross-examination, PW-15 has stated that Parmanand Rai (PW-1) hadnot given any statement to the effect that Uday Shankar Niralahas said that nobody has the guts to challenge him and nobodyhas courage to stop him from playing tape as also he had notstated before her that Uday Shankar Nirala had fired gun shot onKishundeo Rai which hit him on his left chest. In paragraphno.39 of her cross-examination, PW-15 has stated thatKamleshwar Prasad Yadav (PW-2) has stated before her that hehad reached at the place of occurrence upon bomb being hurledand had seen Kishundeo Rai and Baidyanath Prasad in aninjured condition. In paragraph no.40 of her cross-examination,PW-15 has stated that Devanand Rai (PW-3) had not taken thename of Kishun Rai, Harendra Rai, Jagarnath Rai and AbhayShankar Nirala before her in his statement. In paragraph no.41of her cross-examination, PW-15 has stated that PW-8 PanchhiLal Rai had not told her about bomb being hit over the gassa(space between the fingers of hand) of Kishundeo Rai and Panchhi Lal Rai had not told her that firing was made in air.

34. After closing the prosecution evidence, the learned TrialCourt recorded the statement of the appellants on 12.09.1995under Section 313 of the Cr.P.C. for enabling them to personallyexplain the circumstances appearing in the evidence againstthem, however they claimed themselves to be innocent anddenied the same.

35. The defence has also examined the investigating officerSangita Kumari as DW-1 and she has stated in her evidence thatshe was posted as Probationer Dy. S.P. in December, 1992 atHajipur and on the said day, Sub-Inspector of Police, DayaShankar Rai had sent written fardbeyan, which was received byher on 22.12.1993, which she has identified and has alsoidentified the same to be in the writing of Girija Shankar, whichhas been marked as Exhibit-B. On the basis of the saidfardbeyan, the formal FIR was registered, which has beenmarked as Exhibit-B/1. DW-1 has \ stated that she had alsoconducted investigation of Sadar P.S. Case No.318 of 1993 andhas proved the injury report of Zamindar Rai, which has beenmarked as Exhibit-C. On 22.12.1993, DW-1 recorded the re-statement of Zamindar Rai as also the statement of his wife andhad also inspected the place of occurrence at 8:30 a.m. in the

morning. She has also stated that she had inspected the place ofoccurrence of the present case and P.S. Case No.314 of 1993together on 19.12.1993 and the detailed description has beenmentioned in the case-diary pertaining to P.S. Case No.314 of1993. PW-15 has proved the seizure-list of remains of bombsupon which signature of PW-5 Sunil Kumar and PW-6 DineshKumar are present, which has been marked as Exhibit-D. DW-1has also proved the second seizure list, which is in the writing ofUttim Singh and the same has been marked as Exhibit-3/1.

36. In paragraph no.9, DW-1 has stated that the supervisionnote of SDPO was received on 23.12.1993 pertaining to thiscase as also relating to P.S. Case No.314 of 1993 and the casewas found to be true qua the accused of P.S. Case No.318 of1993, under Sections 448, 323, 525, 307 of the IPC, Section 27of the Arms Act and Section 3/4 of the Act, 1908 and sufficientproof was found for filing the charge-sheet. In para no.11, DW-1has proved the signature of Supervisory Officer i.e SDPO, madeon the supervision note and the same has been marked asExhibit-E. In paragraph no.12, DW-1 has described the place ofoccurrence. In paragraph no.15 of her cross-examination, DW-1has identified the writing and signature of Uttim Singh, made inparagraph no.55 of the case-diary pertaining to P.S. Case No.318

of 1993, which has been marked as Exhibit-10 (with objection).In paragraph no.16 of her cross-examination, DW-1 has statedthat in the case-diary, she has not written about P.S. Case No.318of 1993 to be true, however the same has been written in thesupervision note. In paragraph no.19 of her cross-examination,DW-1 has stated that in the fardbeyan, the deceased KishundeoRai has also been made an accused. In paragraph no.22 of hercross-examination, DW-1 has stated that during the course ofinvestigation of P.S. Case No.318 of 1993, the factum of payingof tape has not come to light. In paragraph no.22 of her cross-examination, DW-1 has stated that when she had reached theplace of occurrence for the first time for investigating P.S. CaseNo.314 of 1993, nobody had told her about the details of thecase pertaining to P.S. Case No.318 of 1993 and in fact thepolice personnel present there had not told her about P.S. CaseNo.318 of 1993. In para no.27 of her cross-examination, DW-1has stated that she has no knowledge as to whether P.S. CaseNo.318 of 1993 was found to be true or not.

37. We have perused the impugned judgement of the learnedTrial Court, the entire materials on record, as also the evidenceadduced at the trial and have given our thoughtful considerationto the rival submissions made by the learned counsel for the appellants as well as the learned APP for the State.

38. At the outset, the issue which is required to be adjudicatedis as to whether the date, time, mode and manner of occurrencehave stood proved on the basis of ocular evidence led by theprosecution. In this regard, we find that PW-1 Parmanand Rai,PW-3 Devanand Rai, PW-8 Panchchi Lal Rai and PW-9Baidyanath Prasad (informant) are stated to be the eye witnessesof the present occurrence. As far as PW-1 is concerned, he hasstated in his evidence that at the time of occurrence, he wassitting at the staircase of his veranda and the deceasedKishundeo Rai was also sitting along with him whereupon theaccused Uday Shankar Nirala had arrived there and analtercation had taken place in between him and Kishundeo Rairegarding Kishundeo Rai having objected him from playing tapeloudly in the morning. Thereafter, Uday Shankar Nirala hadtaken out a pistol from his waist and fired on the deceased,whereafter he had fled away and gone to the roof of his housewhere other accused persons, including the appellants werepresent and then all of them had started hurling bombsindiscriminately. The bomb hurled by Kishun Rai had hitKishundeo Rai (deceased), bomb hurled by Jagarnath had hitBaidyanath Prasad (informant) and the bomb hurled by

Harendra Rai had hit on the protruded portion of the roof(chhajja). PW-1 has also stated in his evidence that the house ofUday Shankar Prasad is situated in front of his house and that hehad mentioned, in his statement made before the police aboutthe bomb being exploded by the accused persons. As far as PW-15 is concerned, she has stated that PW-1 had not stated beforeher that Uday Shankar Nirala had said that there is no one in thevillage who can challenge him and nobody has the courage tostop him from playing tape. PW-15 has also stated that PW-1had not stated before her that Uday Shankar Singh had shot onthe chest of Kishundeo Rai. Nonetheless, we find that PW-15has not stated in her evidence that PW-1 had denied the factumof hurling bombs by Harendra Rai and Jagarnath Rai.

39. PW-3 Devanand Rai has stated in his evidence that at thetime of occurrence, he was at his house and upon hearing soundof quarrel, he had come out of his house and had seen UdayShankar Nirala taking out a pistol from his waist and firing atKishundeo Rai leading to Kishundeo Rai having fallen downand then Uday Shankar Nirala had gone to his roof, whereaccused persons, including the appellants were present frombefore, whereafter they had started hurling bomb. The bombhurled by Kishun Rai had hit Kishundeo Rai, the bomb hurled by Jagarnath had hit Baidyanath Prasad and the bomb hurled byHarendra had hit somewhere on the roof. PW-3 is also signatoryto the fardbeyan and the inquest report, which has been markedas Exhibit-1 and 1/2 respectively. As far as PW-15 is concerned,she has though stated that PW-3 had not disclosed the name ofthe appellants before her, nonetheless we find that the testimonyof eye witnesses, i.e. PW-1 Parmanand Rai, PW-8 Panchilal Raiand PW-9 Baidyanath Prasad definitely substantiates theevidence of PW-3.

40. Now coming to the evidence of PW-8 Panchhi Lal Rai, hehas also more or less narrated about the factum of the case ashas been stated by PW-1, as described hereinabove and he hasfurther stated in his evidence that Jagarnath Rai, Kishun Rai andAbhay Shankar Nirala had hurled bomb from the roof. PW-8 hasalso stated in his evidence that the bomb hurled by Kishun Raihad hit Kishundeo Rai (deceased) and the bomb hurled byJagarnath Rai had hit Baidyanath Prasad (informant) on theknees of his legs and the bomb hurled by Harendra Rai had hitin front, on the roof. PW-8 has also stated that the bombs werebeing hurled from the roof of Uday Shankar Nirala and not fromtheir house. PW-8 is stated to have told the police that the bombwhich hit Kishundeo Rai had hit him on his gassa (space between fingers of the hands) and the bomb thrown by HarendraRai had hit on the roof, while the bomb hurled by Jagarnath Raihad hit the informant on both knees of legs. PW-8 has also statedthat at the time of hurling bomb, he was present in veranda ofhis house and had seen the bombs being hurled. As far as PW-15is concerned, she has stated that PW-8 did not tell her abouthitting of bomb in the middle of fingers of hand of KishundeoRai as also he did not disclose about firing being made in the air,nonetheless she has not denied the factum that bomb was beinghurled by the appellants as also the bomb hurdled by JagarnathRai had hit the informant while that hurled by Harendra Rai hadhit chhajja/roof.

41. As far as PW-9 Baidyanath Prasad (informant) isconcerned, he has stated in his evidence that at the time ofoccurrence, he was at the door of his house and he saw that theaccused Uday Shankar Nirala had come out of his house and hadreached at the door of the house of Panchhi Lal Rai where hisbrother Kishundeo Rai was sitting on the stairs and then analtercation had taken place in between Uday Shankar Nirala andhis brother Kishundeo Rai leading to Uday Shankar Niralahaving taken out a pistol from his waist and having fired gunshot on Kishundeo Rai leading to him falling down on the

ground, whereafter Uday Shankar Nirala had immediately goneto the roof of his house where the accused persons including theappellants were present from before and then they started firingand hurling bombs indiscriminately. PW-9 has also stated in hisevidence that Kishundeo Rai was injured by the bomb hurled byKishun Rai and he was injured by the bomb hurled by JagarnathRai which had hit his knees. PW-15 has not contradicted thestatements made by PW-9. We find that no contradiction hasbeen drawn by the defence while examining PW-15 with regardto the statement made by PW-9 before the police. We may alsorefer to the well settled law to the effect that an injured eyewitness is accorded a special status since such witness offers anextremely valuable piece of evidence. Reference be had to ajudgement rendered by the Hon'ble Apex Court in the case ofAbdul Sayeed vs State of Madhya Pradesh, reported in (2010)10 SCC 259, wherein it has been held that where a witness tothe occurrence has himself been injured in the incident, thetestimony of such a witness is generally considered to be veryreliable, as he is a witness that comes with a built-in-guaranteeof his presence at the scene of the crime and is unlikely tospare his actual assailant(s) in order to falsely implicatesomeone.

42. Now coming to PW-2, we find from his evidence that hehad seen the appellants fleeing away in a nervous condition. Asfar as PW-13 is concerned, he had recorded the fardbeyan of theinformant, prepared the inquest report and the injury report ofthe injured witness, i.e. PW-9 Baijnath Prasad. As far as PW-12is concerned, he had prepared seizure-list as aforesaid. As far asPW-15 is concerned, she had not only investigated the presentcase and found it to be true but had also seized the remains ofbomb and other articles as also had found live bomb from theroof of the hut, situated adjacent to the house of Uday ShankarNirala. She had also examined PW-2, PW-3 and PW-4 on04.01.1994. PW-11 is the doctor, who had conducted the post-mortem examination of the deceased and he had found wound ofentry and exit of bullet on the body of the deceased, relatable tothe gunshot fired upon the deceased by Uday Shankar Nirala.PW-11 had also found black and tattooing mark on the leftforearm and hand of the deceased and with regard to the injuriessustained by the deceased, he had opined that two injuries havebeen caused by firearm such as revolver from short distance andthird injury has been caused by explosive substance such asbomb. As far as PW-9 Baijnath Prasad is concerned, PW-11 hadalso examined the injuries found on his person & he had opined that as far as injury no.1 is concerned, the same has been causedby explosive substance such as splinter of the bomb and rest ofthe injuries have been caused due to hard and blunt substance.

43. Thus, after consideration of the entire prosecutionevidence and its careful analysis, we can safely conclude that theevidence of the prosecution witnesses, especially PW-1, PW-2,PW-3, PW-8 and PW-9, apart from the evidence of theinvestigating officer, i.e. PW-15 and the doctor, i.e. PW-11 arecogent, convincing, creditworthy and reliable, hence there is noreason to doubt the genuineness of their testimony, on the basisof which the learned Trial Court has convicted the appellants.We also find that no contradiction has been drawn by thedefence while cross-examining the said witnesses. It is apparentfrom the evidence of the said witnesses that the appellant no.1Harendra Rai had hurled bomb which had though not hit anyonebut had hit the Chhajja (roof) of the house in question and theinvestigating officer, i.e PW-15 has also substantiated the sameinasmuch as she had found black marks, purportedly on accountof bomb explosion on the roof apart from seizing remains ofexplosive substance. Similarly, the evidence of the aforesaidwitnesses also shows that the appellant no.3 i.e. Jagarnath Raihad hurled bomb on the informant, i.e. PW-9 leading to him sustaining bomb injury as has stood substantiated by theevidence of the doctor (PW-11) and the injury report preparedby him as also from the evidence of PW-15. Thus, the factum ofthe appellant no.1 and the appellant no.3 having hurled bombwhich had also exploded stands proved beyond all reasonabledoubts apart from the factum of the appellant no.3 having hurledbomb on the informant, i.e. PW-9 leading to him sustainingbomb injury having also stood proved. As far as date, time,place and mode/manner of occurrence is concerned, the samealso stands proved from a holistic reading of the evidence of theaforesaid prosecution witnesses as also from the fact that thoughthe accused side had filed a counter case bearing Hajipur SadarP.S. Case No.318 of 1993 belatedly, on 22.12.1993, however thepolice had found the same to be untrue and had filed final formwhich was also accepted by the learned Trial Court, vide orderdated 16.09.1995. In fact, the investigating officer, while beingexamined as DW-1 has stated in her evidence that the place ofoccurrence of both the cases are same and further she has statedin paragraph no.20 that during the course of investigation of thecounter case, i.e P.S. Case No.318 of 1993, the factum ofplaying of tape has come to light, thus the genesis and motive ofthe case also stands proved.

44. We also find that the ocular testimony of the eyewitnesses stands corroborated by the medical evidence and theevidence led in the present case would show that the medicalevidence in fact supports the injuries which have been causedin the manner alleged, hence the ocular evidence cannot bethrown out. In this regard, reference be had to a judgmentrendered by the Hon’ble Apex Court in the case of SolankiChimanbhai Ukabhai vs. State of Gujarat, reported in(1983)2 SCC 174.

45. At this juncture, it would be appropriate to quote Section307 of the IPC hereinbelow:- “307. Attempt to murder.—

Whoever does any act with such intention or knowledge,and under such circumstances that, if he by that actcaused death, he would be guilty of murder, shall bepunished with imprisonment of either description for aterm which may extend to ten years, and shall also beliable to fine; and if hurt is caused to any person by suchact, the offender shall be liable either to imprisonment forlife, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.— When any person offendingunder this section is under sentence of imprisonment forlife, he may, if hurt is caused, be punished with death.”

From a bare perusal of Section 307 of the IPC, it isapparent that whoever does any act, with the intention orknowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing such an act, hewould be guilty under Section 307 of the IPC, but it would berequired to be seen from the evidence produced by theprosecution, whether enough material has been brought onrecord to establish the charge under section 307 of the IPCbeyond all reasonable doubts. In fact, to justify a convictionunder Section 307 of the IPC, it is not essential that fatal injurycapable of causing death should have been inflicted and it wouldbe sufficient to justify a conviction under Section 307 IPC, ifthere is present an intent coupled with some overt act inexecution thereof. Thus, what is material for Section 307 is theintention or knowledge of the accused and not the actualconsequence of the act performed in furtherance of suchintention. The provision clearly contemplates an act committedwith the intention of causing death, which ultimately fails toachieve the intended result due to intervening circumstances.The requisite intention or knowledge must be of such a degreeas is necessary to constitute the offence of murder. In theabsence of such intention or knowledge, which forms anessential ingredient of Section 307 IPC, no offence of “attemptto murder” can be said to exist. Since intention is a state ofmind, it cannot be proved by direct evidence with precision. As a fact, it can only be inferred from the surroundingcircumstances and other relevant factors, such as the nature ofthe weapon used, any exchange of words between the accusedand the victim at the time of the incident, the motive of theaccused, the place of the injuries inflicted, the nature of theinjuries and the overall circumstances under which theoccurrence took place. These factors serve as crucial indicatorsin detecting or inferring intention through indirect orcircumstantial evidence, which ultimately aids in establishingthe mental element of the accused.

46. In this regard, we would refer to a judgment rendered bythe Hon’ble Apex Court in the case of Jage Ram vs. State ofHaryana, reported in (2015) 11 SCC 366, paragraph nos. 12 and13 whereof are reproduced herein below:- “12. ………. To justify a conviction under Section 307IPC, it is not essential that fatal injury capable of causingdeath should have been caused. Although the nature ofinjury actually caused may be of assistance in coming toa finding as to the intention of the accused, such intentionmay also be adduced from other circumstances. Theintention of the accused is to be gathered from thecircumstances like the nature of the weapon used, wordsused by the accused at the time of the incident, motive ofthe accused, parts of the body where the injury wascaused and the nature of injury and severity of the blowsgiven, etc.

13. In State of M.P. v. Kashiram [(2009) 4 SCC 26], the scope of intention for attracting conviction under Section307 IPC was elaborated and it was held as under:

“12. … ‘13. It is sufficient to justify a convictionunder Section 307 if there is present an intentcoupled with some overt act in execution thereof. Itis not essential that bodily injury capable ofcausing death should have been inflicted. Thesection makes a distinction between the act of theaccused and its result, if any. The court has to seewhether the act, irrespective of its result, was donewith the intention or knowledge and undercircumstances mentioned in the section. Therefore,an accused charged under Section 307 IPC cannotbe acquitted merely because the injuries inflictedon the victim were in the nature of a simple hurt.

14. This position was highlighted in State ofMaharashtra v. Balram Bama Patil [(1983) 2 SCC28], Girija Shankar v. State of U.P. [(2004) 3 SCC793] and R. Prakash v. State of Karnataka [(2004)9 SCC 27].

16. Whether there was intention to kill orknowledge that death will be caused is a questionof fact and would depend on the facts of a givencase. The circumstances that the injury inflicted bythe accused was simple or minor will not by itselfrule out application of Section 307 IPC. Thedeterminative question is the intention orknowledge, as the case may be, and not the natureof the injury.’

See State of M.P. v. Saleem [ (2005) 5 SCC 554], paras 13-14 and 16.”

47. Now, coming back to the case in hand, it is apparentfrom perusal of the evidence brought on record by the prosecution, as discussed herein above in the precedingparagraphs that the factum of the appellant no.1 and theappellant no.3 having hurled bomb which had also explodedstands proved beyond all reasonable doubts apart from thefactum of the appellant no.3 having hurled bomb on theinformant, i.e. PW-9 leading to him sustaining bomb injuryhaving also stood proved. We further find that though the bombthrown by Harendra Rai hit the roof and did not injure anymember of the prosecution party, the same does not indicatethat the act was committed without intention or knowledge. Itis reflected from the evidence on record that the accused werealso involved in preparation of explosive substances, as theseizure list records various materials recovered from the placeof occurrence as well as from the house of co-accused UdayShankar Nirala, which were intended for manufacturingexplosive substance such as country made bomb. The saidhouse was also used by the accused including appellant Nos. 1and 3 for hurling bombs on the informant and the deceased.Thus, the act of the appellant No.1, Harendra Rai as also that ofthe appellant no.3, Jagarnath Rai clearly demonstrates bothintention and knowledge that their conduct was likely to causedeath or grievous injury and yet, in furtherance of such

intention and knowledge, they proceeded to commit the act.The Hon’ble Apex Court has consistently laid down theprinciple of law concerning Section 34 of the Indian PenalCode in various judgments, holding that a pre-arrangedmeeting of minds or a common intention does not necessarilyrequire prior planning. Such intention may arise, form, ordevelop instantaneously, even on the spur of the moment. Thus,in view of the evidence discussed above, and the law laid downby the Hon’ble Apex Court, it is evident that the appellantNo.1, Harendra Rai, acted in furtherance of the commonintention shared with appellant no.3, Jagarnath Rai.Consequently, we are satisfied that in the facts andcircumstances as evident from the records, the prosecution hasbeen able to establish beyond all reasonable doubt the guilt ofthe appellant No.1, Harendra Rai as also the appellant no.3,Jagarnath Rai, for which they have been convicted by the Ld.Trial court under Section 307/34 of the IPC and Sections 3 and4 of the Act, 1908. Hence, as far as the judgement of convictiondated 28.09.1995, passed by the Ld. 2nd Additional SessionsJudge, Vaishali at Hajipur in Sessions Trial No.176 of 1994 isconcerned, it is upheld qua the appellant No.1, Harendra Raiand the appellant no.3, Jagarnath Rai.

48. Now we would like to delve upon the issue of sentencerequired to be awarded to the appellant nos. 1 and 3 whoseconviction under Sections 3 and 4 of the Act, 1908 and Section307/34 of the IPC has already stood confirmed by us. In thisregard, first of all we would like to quote Sections 3 and 4 of theunamended Explosive Substance Act, 1908 (which has stoodamended by Act 54 of 2001 with effect from 01.02.2002), hereinbelow:- “3. Punishment for causing explosion likely to endanger life or property.-any person who unlawfully andmaliciously causes by any explosive substance anexplosion of a nature likely to endanger life or to causeserious injury to property shall, whether any injury toperson or property has been actually caused not, bepunished with imprisonment for life or any shorter term,to which fine may be added, or with imprisonment for aterm which may extend to ten years, to which fine may beadded.

4. Punishment for attempt to cause explosion, or formaking or keeping explosive with intent to endanger lifeor property. Any person who unlawfully maliciously- (a) does any act with intent to cause by an explosivesubstance, or conspires to cause by an explosivesubstance, an explosion in [India] of a nature likely toendanger life or to cause serious injury to property; or(b) makes or has in his possession or under his control any explosive substance with intent by means thereof toendanger life, or cause serious injury to property in[India] or to enable any other person by means thereof toendanger life or cause serious injury to property in[India]; shall, whether any explosion does or does not take placeand whether any injury person or property has beenactually caused or not, be punished with imprisonmentfor a term which may extend to twenty years, to whichfine may be added, or with imprisonment for a term whichmay extend to seven years, to which fine may be added.”

A bare perusal of Sections 3 and 4 of the Act, 1908 wouldshow that the accused/convict can also be punished withimprisonment for a term which may extend to 10 years.

49. As far as Section 307 of the IPC is concerned, a bareperusal of the same would show that the maximum corporealsentence imposable for conviction under Section 307, IPC isimprisonment for a term which may extend to ten years.Reference in this regard be had to a judgment rendered by theHon’ble Apex Court in the case of Amit Rana @ Koka and Anr.Vs. State of Haryana, reported in 2024 SCC OnLine SC 1763as also to the one rendered in the case of Ganesan v. State ofT.N., reported in (2025) 4 SCC 231.

50. We would now advert to the issue of awarding a proper

sentence, considering the principles laid down by the Hon’bleApex Court in a catena of judgments. In this regard, it would beapposite to refer a judgment rendered by the Hon’ble ApexCourt in Hazara Singh vs. Raj Kumar and Ors. reported in(2013) 9 SCC 516, paragraphs nos. 10 to 17 whereof reproducedherein below- “10. In order to understand the reasoning of the HighCourt for reduction of sentence, it is but proper to referSection 307 IPC which reads thus:

“307. Attempt to murder.—Whoever does any act withsuch intention or knowledge, and under suchcircumstances that, if he by that act caused death, hewould be guilty of murder, shall be punished withimprisonment of either description for a term whichmay extend to ten years, and shall also be liable tofine; and if hurt is caused to any person by such act,the offender shall be liable either to imprisonment forlife, or to such punishment as is hereinabovementioned.”

From the above, it is clear that the maximumpunishment provided therein is imprisonment for life ora term which may extend to 10 years. Although Section307 does not expressly state the minimum sentence tobe imposed, it is the duty of the courts to consider allthe relevant factors to impose an appropriate sentence.The legislature has bestowed upon the judiciary thisenormous discretion in the sentencing policy, whichmust be exercised with utmost care and caution. Thepunishment awarded should be directly proportionateto the nature and the magnitude of the offence. Thebenchmark of proportionate sentencing can assist theJudges in arriving at a fair and impartial verdict.

11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crimehe has committed and it should be proportionate to thegravity of the offence. This Court has repeatedly stressedthe central role of proportionality in sentencing ofoffenders in numerous cases.

12. The factual matrix of this case is similar to the factsand circumstances in Shailesh Jasvantbhai v. State ofGujarat [(2006) 2 SCC 359] wherein the accused wasconvicted under Sections 307/114 IPC and for the samethe trial court sentenced the accused for 10 years.However, the High Court, in its appellate jurisdiction,reduced the sentence to the period already undergone. Inthat case, this Court held that the sentence imposed is notproportionate to the offence committed, hence notsustainable in the eye of the law. This Court observedthus: (SCC pp. 361-62, paras 7-8)

“7. The law regulates social interests, arbitratesconflicting claims and demands. Security of personsand property of the people is an essential function ofthe State. It could be achieved through instrumentalityof criminal law. Undoubtedly, there is a cross-culturalconflict where living law must find answer to the newchallenges and the courts are required to mould thesentencing system to meet the challenges. Thecontagion of lawlessness would undermine social orderand lay it in ruins. Protection of society and stampingout criminal proclivity must be the object of law whichmust be achieved by imposing appropriate sentence.Therefore, law as a cornerstone of the edifice of ‘order’should meet the challenges confronting the society.Friedman in his Law in Changing Society stated that:‘State of criminal law continues to be—as it should be—a decisive reflection of social consciousness ofsociety.’ Therefore, in operating the sentencing system,law should adopt the corrective machinery ordeterrence based on factual matrix. By deftmodulation, sentencing process be stern where itshould be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case,the nature of the crime, the manner in which it wasplanned and committed, the motive for commission ofthe crime, the conduct of the accused, the nature ofweapons used and all other attending circumstancesare relevant facts which would enter into the area ofconsideration.

8. Therefore, undue sympathy to impose inadequatesentence would do more harm to the justice system toundermine the public confidence in the efficacy of lawand society could not long endure under such seriousthreats. It is, therefore, the duty of every court to awardproper sentence having regard to the nature of theoffence and the manner in which it was executed orcommitted, etc.”

13. This position was reiterated by a three-Judge Benchof this Court in Ahmed Hussein Vali Mohammed Saiyed v.State of Gujarat [(2009) 7 SCC 254], wherein it wasobserved as follows:

“99. … The object of awarding appropriate sentenceshould be to protect the society and to deter thecriminal from achieving the avowed object to (sic breakthe) law by imposing appropriate sentence. It isexpected that the courts would operate the sentencingsystem so as to impose such sentence which reflects theconscience of the society and the sentencing processhas to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking toosympathetic view merely on account of lapse of time inrespect of such offences will be resultwisecounterproductive in the long run and against theinterest of society which needs to be cared for andstrengthened by string of deterrence inbuilt in thesentencing system.

100. Justice demands that courts should imposepunishment befitting the crime so that the courts reflectpublic abhorrence of the crime. The court must not

only keep in view the rights of the victim of the crimebut the society at large while considering theimposition of appropriate punishment. The court willbe failing in its duty if appropriate punishment is notawarded for a crime which has been committed notonly against the individual victim but also against thesociety to which both the criminal and the victimbelong.” In that case, the Court further goes to statethat meagre sentence imposed solely on account oflapse of time without considering the degree of theoffence will be counterproductive in the long run andagainst the interest of the society.

14. In Jameel v. State of U.P. [(2010) 12 SCC 532], thisCourt reiterated the principle by stating that thepunishment must be appropriate and proportional to thegravity of the offence committed. Speaking about theconcept of sentencing, this Court observed thus:

“15. In operating the sentencing system, law shouldadopt the corrective machinery or deterrence based onfactual matrix. By deft modulation, sentencing processbe stern where it should be, and tempered with mercywhere it warrants to be. The facts and givencircumstances in each case, the nature of the crime, themanner in which it was planned and committed, themotive for commission of the crime, the conduct of theaccused, the nature of weapons used and all otherattending circumstances are relevant facts which wouldenter into the area of consideration.

16. It is the duty of every court to award propersentence having regard to the nature of the offence andthe manner in which it was executed or committed. Thesentencing courts are expected to consider all relevantfacts and circumstances bearing on the question ofsentence and proceed to impose a sentencecommensurate with the gravity of the offence.”

15. In Guru Basavaraj v. State of Karnataka [(2012) 8SCC 734], while discussing the concept of appropriate sentence, this Court expressed that:

“33. … It is the duty of the court to see thatappropriate sentence is imposed regard being had tothe commission of the crime and its impact on thesocial order. The cry of the collective for justice whichincludes adequate punishment cannot be lightlyignored.”

16. Recently, this Court in Gopal Singh v. State ofUttarakhand [(2013) 7 SCC 545] held as under “18. Just punishment is the collective cry of the society.While the collective cry has to be kept uppermost in themind, simultaneously the principle of proportionalitybetween the crime and punishment cannot be totallybrushed aside. The principle of just punishment is thebedrock of sentencing in respect of a criminal offence.”

17. We reiterate that in operating the sentencing system,law should adopt the corrective machinery or deterrencebased on factual matrix. The facts and givencircumstances in each case, the nature of the crime, themanner in which it was planned and committed, themotive for commission of the crime, the conduct of theaccused, the nature of weapons used and all otherattending circumstances are relevant facts which wouldenter into the area of consideration. We also reiterate thatundue sympathy to impose inadequate sentence would domore harm to the justice system to undermine the publicconfidence in the efficacy of law. It is the duty of everycourt to award proper sentence having regard to thenature of the offence and the manner in which it wasexecuted or committed. The court must not only keep inview the rights of the victim of the crime but also thesociety at large while considering the imposition ofappropriate punishment.”

51. We have made an in-depth analysis of the principles pertaining to sentencing and find that the same have been congruously and succinctly laid down by the Hon’ble ApexCourt in a catena of judgments, rendered in the cases of SantaSingh vs. State of Punjab,reported in (1976) 4 SCC 190,Tholan vs. State of Tamil Nadu, reported in (1984) 2 SCC 133,Sevak Perumal & Anr. Vs State of Tamil Nadu, reported in(1991) 3 SCC 471, State of Uttar Pradesh vs. Shri Kishan,reported in (2005) 10 SCC 420, Gopal Singh vs. State ofUttarakhand, reported in (2013) 7 SCC 545 and Pratap Singh@ Pikki vs. State of Uttarakhand, reported in (2019) 7 SCC424. It would be apropos to summarize few important principlesof law discernible from the aforesaid Judgments rendered by the Hon’ble Apex Court, herein below:

(i) A proper sentence is amalgam of many factors, whichare being enumerated herein below:-are being enumerated herein below:- -the nature of the offence, -the circumstances, -extenuating or aggravating of the offence, -the prior criminal record, if any, of the offender, -the age of the offender, -the record of the offender as to employment, -the background of the offender with reference toeducation, home — life, sobriety and social adjustment, -the emotional and mental condition of the offender, -the prospects for the rehabilitation of the offender, -the possibility of return of the offender to a normal lifein the community, -the possibility of treatment or training of the offender, -the possibility that the sentence may serve as a deterrent to crime by the offender or by others.

(ii) Undue sympathy to impose inadequate sentence hasbeen held to do more harm to the justice system since thesame undermines the public confidence in the efficacy oflaw and society. It is, therefore, the duty of every court toaward proper sentence having regard to the nature of theoffence and the manner in which it was executed orcommitted etc., inasmuch as if the courts do not protectthe injured, the injured may then resort to privatevengeance.

(iii) For deciding just and appropriate sentence to beawarded for an offence, after giving due consideration tothe facts and circumstances of each case, the aggravatingand mitigating factors and circumstances in which acrime has been committed are to be delicately balancedon the basis of relevant circumstances in a dispassionatemanner by the Court.

(iv) The object should be to protect the society and todeter the criminal in achieving the avowed object of lawby imposing appropriate sentence. It is expected that thecourts would operate the sentencing system so as toimpose such sentence which reflects the conscience of thesociety and the sentencing process has to be stern whereit should be.

(v) Imposition of sentence without considering its effecton the social order in many cases may in reality be afutile exercise. The social impact of the crime e.g. whereit relates to offences against women, dacoity, kidnapping,misappropriation of public money, treason and otheroffences involving moral turpitude or moral delinquencywhich have great impact on social order and publicinterest, cannot be lost sight of and per se requireexemplary treatment. Any liberal attitude by imposingmeagre sentences or taking too sympathetic view merelyon account of lapse of time in respect of such offenceswill be result wise counterproductive in the long run andagainst societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in thesentencing system.

(vi) The court will be failing in its duty if appropriatepunishment is not awarded for a crime which has beencommitted not only against the individual victim but alsoagainst the society to which the criminal and victimbelong. The punishment to be awarded for a crime mustnot be irrelevant but it should conform to and beconsistent with the atrocity and brutality with which thecrime has been perpetrated, the enormity of the crimewarranting public abhorrence and it should “respond tothe society's cry for justice against the criminal.”

52. We would now like to give a careful consideration to theevidence on record of the present case for the purposes ofawarding a proper sentence, considering the principles laiddown by the Hon’ble Apex Court in a catena of judgments, ashas been referred to hereinabove in the preceding paragraphs. Itis apparent from perusal of the evidence brought on record bythe prosecution, as discussed herein above in the precedingparagraphs that the factum of the appellant no.1, Harendra Raiand the appellant no.3, Jagarnath Rai having hurled bomb whichhad also exploded stands proved beyond all reasonable doubtsapart from the factum of the appellant no.3 having hurled bombon the informant, i.e. PW-9 leading to him sustaining bombinjury having also stood proved. Thus, upon a prudentconsideration of the evidence, it is clear that the appellant no.1,

Harendra Rai and the appellant no.3, Jagarnath Rai along withthe other co-accused have actively participated in hurlingbombs. These circumstances do not negate the element ofintention and knowledge as contemplated under Section 307 ofthe IPC. It is further evident from the facts that, although thebomb hurled by appellant no.1, Harendra Rai did not cause anybodily injury to the members of the prosecution party, his actunequivocally demonstrates an intention to endanger the life andproperty of the prosecution party inasmuch as the bomb thrownby the appellant No.1, Harendra Rai had struck the front side ofthe roof of the house of PW-8 and during the course ofinvestigation, PW-15 had found black burn marks on the eastand north walls of the roof of the house of PW-8.

53. Factually, as submitted by the learned counsel for theappellant No. 1, Harendra Rai and appellant no.3, Jagarnath Rai,they have remained in custody for a total period of about 78days only (56 days pre-conviction and 22 days post-conviction),till date. However, considering the fact that the appellant No. 1,Harendra Rai is presently about 75 years of age and appellantno.3, Jagarnath Rai is about 55 years of age and bearing in mindthe necessity of balancing the aggravating and mitigatingfactors, as well as the circumstances in which the crime was committed, we proceed to examine the relevant aspects. Theprosecution witnesses, in their testimony, have nowhere deposedthat the appellant Nos. 1 and 3 bore any prior enmity with themembers of the prosecution party, nonetheless the evidence onrecord clearly indicates that the principal assailants were UdayShankar Nirala and Kishun Rai (both of whom are now dead),who inflicted fatal injuries upon the deceased by using a gun anda bomb, respectively. It is pertinent to note that the occurrencetook place on 19.12.1993, i.e. more than 30 years ago,nevertheless as per the settled principle of law laid down by theHon’ble Apex Court in a catena of judgments, mere passage oftime does not diminish the objectives of deterrence and societalprotection, hence there is no justification for undue leniency inthe matter of sentencing.

54. Moreover, we find that the appellant Nos. 1 and 3 standconvicted for the offence of attempt to murder under Section307 read with Section 34 of the IPC, as well as under Section3/4 of the Act, 1908, although they were originally chargedunder Sections 302/149 and 307 of the IPC and Sections 3 and 4of the Act, 1908. Thus, we are of the considered opinion that nosymbolic punishment should be imposed, particularly in light ofthe principle of proportionality, which mandates prescribing liability in accordance with the degree of culpability associatedwith each category of criminal conduct. Granting unduesympathy by imposing an inadequate sentence would not onlyundermine the administration of justice but also erode publicconfidence in the efficacy of law. Such an approach wouldultimately prove counterproductive and contrary to societalinterests, which must be safeguarded and reinforced by thedeterrent element inherent in the sentencing system. Referencein this regard be had to a Judgment rendered by the Hon’bleapex Court in the case of Pramod Kumar Mishra vs State ofUttar Pradesh, reported in (2023) 9 SCC 810.

55. Thus, taking into account an overall perspective of theentire case, as indicated hereinabove, considering the evidenceon record, considering the aggravating and mitigating factors, asalso considering the principles of sentencing laid down by theHon’ble Apex Court in a catena of decisions, as aforesaid apartfrom the fact that we have already upheld the conviction of theappellant nos.1 and 3 under Section 307/34 of the IPC as well asunder Sections 3 and 4 of the Act, 1908, we are of the opinionthat a sentence of rigorous imprisonment for 5 years wouldsuffice. Accordingly, we modify the order of sentence dated29.09.1995, passed by the Ld. 2nd Additional Sessions Judge,

Vaishali at Hajipur, in Sessions Trial No.176 of 1994 qua theappellant nos. 1 and 3 and deem it fit and proper to sentencethem to undergo rigorous imprisonment for 5 years each.

56. Now coming to appellant no.2 Abhay Shankar Nirala, wefind that no specific allegation of either firing gunshot orhurling bomb, resulting in injuries being sustained by anymember of the prosecution side, has been levelled against him.Thus, the allegation levelled qua the appellant no.2, in ouropinion, upon consideration of the evidence on record, does notstand proved beyond all reasonable doubt.At this juncture, wewould like to examine as to whether the appellant no.2 can beroped in with aid of Section 34 of the IPC. We may reproduceSection 34 of the IPC herein below:- “34. Acts done by several persons in furtherance of—common intention When a criminal act is done byseveral persons in furtherance of the common intention ofall, each of such persons is liable for that act in the samemanner as if it were done by him alone.”

In this regard, we find from a bare perusal of Section 34of the IPC that its pre-requisites are - (a) pre-consent, (b)presence, (c) common intention, and (d) participation must beestablished. In the present case, we do not find from theevidence on record that the appellant no.2 can be said to have actively participated in the alleged crime apart from the factthat no material is available on record to show that he shared acommon intention with other accused persons, hence merepresence together with other witnesses is not sufficient to holdthat the appellant no.2 shared a common intention to either killthe deceased or injure PW-9 and others. Thus, Section 34 of theIPC would not be attracted qua the appellant no.2.

57. On the aforesaid aspect of the matter, i.e as to whetherappellant no.2 can be held guilty under Section 307 with theaid of Section 34 of the IPC, we would delve upon the law laiddown by the Hon’ble Apex Court. Firstly, we would like referto a judgement rendered by the Hon’ble Apex Court in the caseof State of UP vs. Rohan Singh, reported in 1996 AIR SCW2612, paragraph no.4 whereof is reproduced hereinbelow:- “4. From the statement of Mashooq Khan, PW 2, ittranspires that Rohan Singh had fired on him and at thesame time Dulare had fired a shot by his unauthorisedsingle barrel gun on Naqi Raza. Neither Rohan Singhassaulted Naqi Raza, deceased nor did Dulare fire anyshot at Mashooq Khan, PW. 2. After analysing theevidence led by the prosecution, we are of the opinion,that the most that can be said in favour of theprosecution is that the two respondents shared a similarintention to shoot at the two victims but from the

material on record, it is not possible to positivelyattribute to them the common intention to commit thecrime. There is a material difference between the sharingof similar intention and common intention. Section 34,IPC can be attracted only if the accused share a commonintention and not where they share only similarintention. There are no circumstances on the record fromwhich it may be possible to draw the inference that therespondents had shared the common intention. Merepresence together is not sufficient to hold that they bothshared the common intention to murder Naqi Raza andinjure Mashooq Khan. In this view of the matter, we findthat the judgment of the High Court does not call for anyinterference. The reasons recorded by the High Courtare sound and cogent and the same have appealed tous.”

58. At this juncture, we would also like to refer to ajudgement rendered by the Hon’ble Apex Court in the case ofSuresh Sakharam Nangare vs. State of Maharashtra, reportedin(2012) 9 SCC 249, paragraph no.21 whereof is reproducedherein below:- “21. Since the conviction of the appellant is based onlywith the aid of Section 34 IPC, it is useful to refer thesame:

“34. Acts done by several persons in furtherance ofcommon intention— When a criminal act is done byseveral persons in furtherance of the common intention of all, each of such persons is liable for that act in thesame manner as if it were done by him alone.”

A reading of the above provision makes it clear that toapply Section 34, apart from the fact that there should betwo or more accused, two factors must be established: (i)common intention, and (ii) participation of the accused inthe commission of an offence. It further makes clear thatif common intention is proved but no overt act isattributed to the individual accused, Section 34 will beattracted as essentially it involves vicarious liability but ifparticipation of the accused in the crime is proved andcommon intention is absent, Section 34 cannot beinvoked. In other words, it requires a prearranged planand presupposes prior concert, therefore, there must beprior meeting of minds.”

59. It would also be apposite to refer to yet another judgementrendered by the Hon’ble Apex Court in the case of Suresh vs.State of U.P., reported in (2001) 3 SCC 673,paragraph nos. 52and 53 whereof are reproduced hereinbelow:- “52. In Surendra Chauhan v. State of M.P. [(2000) 4 SCC110] this Court held that apart from the fact that thereshould be two or more accused, two factors must beestablished — (i) common intention, and (ii) participationof the accused in the commission of the offence. If acommon intention is proved but no overt act is attributedto the individual accused, Section 34 will be attracted asessentially it involves vicarious liability. Referring to its earlier judgment this Court held:

“11. Under Section 34 a person must be physicallypresent at the actual commission of the crime for thepurpose of facilitating or promoting the offence, thecommission of which is the aim of the joint criminalventure. Such presence of those who in one way or theother facilitate the execution of the common design isitself tantamount to actual participation in the criminalact. The essence of Section 34 is simultaneousconsensus of the minds of persons participating in thecriminal action to bring about a particular result. Suchconsensus can be developed at the spot and therebyintended by all of them. (Ramaswami Ayyangar v. Stateof T.N. [(1976) 3 SCC 779]) The existence of acommon intention can be inferred from the attendingcircumstances of the case and the conduct of theparties. No direct evidence of common intention isnecessary. For the purpose of common intention eventhe participation in the commission of the offence neednot be proved in all cases. The common intention candevelop even during the course of an occurrence.(Rajesh Govind Jagesha v. State of Maharashtra[(1999) 8 SCC 428) To apply Section 34 IPC apartfrom the fact that there should be two or more accused,two factors must be established: (i) common intention,and (ii) participation of the accused in the commissionof an offence. If a common intention is proved but noovert act is attributed to the individual accused,Section 34 will be attracted as essentially it involvesvicarious liability but if participation of the accused inthe crime is proved and a common intention is absent,Section 34 cannot be invoked. In every case, it is notpossible to have direct evidence of a common intention.It has to be inferred from the facts and circumstancesof each case.”

53. For appreciating the ambit and scope of Section 34,the preceding Sections 32 and 33 have always to be kept in mind. Under Section 32 acts include illegal omissions.Section 33 defines the “act” to mean as well a series ofacts as a single act and the word “omission” denotes aswell a series of omissions as a single omission. Thedistinction between a “common intention” and a “similarintention” which is real and substantial is also not to belost sight of. The common intention implies a prearrangedplan but in a given case it may develop on the spur of themoment in the course of the commission of the offence.Such common intention which developed on the spur ofthe moment is different from the similar intention actuatedby a number of persons at the same time. The distinctionbetween “common intention” and “similar intention”may be fine but is nonetheless a real one and ifoverlooked may lead to miscarriage of justice”

60. Thus, taking a holistic view of the evidence led by theprosecution in the present case coupled with the law laid downby the Hon’ble Apex Court, as referred to hereinabove in theproceeding paragraphs, we find that even with the aid of Section34 of the IPC, the appellant no.2 cannot be convicted for theoffence under Section 307 of the IPC. As far as Section 3/4 ofthe Act, 1908 is concerned, we find from the evidence onrecord that firstly, the same would not be attracted qua theappellant no.2, since neither he was in possession of any bombnor his act of having hurled any bomb has stood proved nor hisparticipation in any manner has stood proved. Hence, we find that the appellant no.2 is liable to be acquitted of the chargeslevelled under Section 3/4 of the Act, 1908 as well.Consequently, the appellant no.2 is acquitted of the chargeslevelled against him under Section 307/34 of the IPC and underSections 3 and 4 of the Act, 1908 and to the said extent, thejudgement of conviction and the order of sentence dated28.09.1995 and 29.09.1995 respectively, passed by the learned2nd Additional Sessions Judge, Vaishali at Hajipur, in SessionsTrial No.176 of 1994, qua the appellant no.2 is set aside.

61. The appellant no.2, Abhay Shankar Nirala has now stoodacquitted of all the charges, hence we discharge him from theliability of his bail bonds.

62. As far as appellant no. 1, Harendra Rai and appellantno.3, Jagarnath Rai are concerned, though we have upheld theirconviction under Section 307/34 of the IPC as well as underSections 3 and 4 of the Act, 1908 but the order of sentence dated29.09.1995, passed by the Ld. 2nd Additional Sessions Judge,Vaishali at Hajipur, in Sessions Trial No.176 of 1994 qua theappellant nos. 1 and 3 has been modified and now they havebeen sentenced to undergo rigorous imprisonment for 5 yearseach by the instant judgment, hence their bail bonds are herebycancelled and they are directed to surrender before the learned Trial Court within a period of eight weeks from today, for beingsent to jail for serving the remaining sentence.

63. Accordingly, the aforesaid appeal bearing CriminalAppeal (DB) No.335 of 1995 stands partly allowed to theaforesaid extent.

(Mohit Kumar Shah, J)

Kanchan./-

AFR/NAFRAFRCAV DATENAUploading Date24.09.2025Transmission Date24.09.2025

(Soni Shrivastava, J)