The appellants were convicted for the offences punishable under Section 302 read with Section 34 of the IPC and Section 325 read with Section 34 of the IPC. After that, PW-4 and his cousin Narayan Manjhi (PW-5) and Gholti Yadav (deceased) proceeded to catch a train. According to the prosecution case, apart from PW-4 and PW- 5, the incident was witnessed by PW-1 (Rinku Yadav), PW-2 (Pinku Yadav) and PW-3 (Subodh Pd. The submission of the learned counsel appearing for the appellants is that there was no evidence of common intention shared by the appellants and the accused no. 3.
The learned counsel appearing for the respondent–State of Bihar submitted that as the conviction of the accused no.3 has been confirmed by this Court, no interference can be made with the conviction of the appellants who had been convicted with the aid of Section 34 of the IPC. In a given case, where the offence is punishable under Section 302 of IPC, when the common intention is proved, but no overt act of assaulting the deceased is attributed to the accused who have been implicated based on Section 34, vicarious liability under Section 34 will be attracted.
Also Read: https://newslaw.in/supreme-court/extension-of-benefit-of-doubt-in-criminal-convictions/
Even without the applicability of Section 34, the accused no.3 could have been convicted for the offence punishable under Section 302 of the IPC. We may note here that the evidence of PW-5 has been discarded by the High Court mainly on the ground that he failed to identify accused no.3, who was the main accused. PW-1 to PW-4 stated that appellant no.2 exhorted the accused no.3 to fire a bullet at the deceased.
A contradiction is sought to be pointed out by the learned counsel appearing for the appellants by stating that in the FIR, it is stated by the PW-4 that he along with his brother and the deceased, were going towards the railway station to catch a train and he did not state in the FIR that they were going towards the bus stand.
In a given case, when independent witnesses are available who are not connected with the rival parties and the prosecution omits to examine them by confining its case to examining related witnesses, an adverse inference can undoubtedly be drawn against the prosecution.
As the appellants are on bail, we direct the appellants to surrender before the Trial Court within one month from today to undergo the remaining sentence.
Case Title: MAHESHWARI YADAV Vs. THE STATE OF BIHAR
Case Number: Crl.A. No.-001515-001515 / 2011
