- Bookmark
- Share
- CaseIQ
Basisth Roy And Others v. State Of Bihar .
Factual and Procedural Background
The case arises out of a land-possession dispute in Village Dhobahi, Police Station Dhansoi, Buxar (Bihar). On 24-7-1991, members of the complainant party, headed by PW-3 Matwar Kanu, were planting bamboos on government land they claimed to possess. Thirteen accused, led by Govind Rai, allegedly arrived and attacked them. Govind Rai is said to have assaulted PW-1 and Rajendra Kanu with a stick, while Sohai Lohar allegedly shot Rajendra Kanu in the back with a country-made pistol, causing his death.
Sessions Trial No. 438 of 1992 before the Additional Sessions Judge, Buxar, ended in the following convictions:
- Sohai Lohar – convicted under Section 302 IPC.
- The remaining eleven accused – convicted under Section 302 read with Section 149 IPC.
During trial Govind Rai died and the case against him abated. The High Court of Judicature at Patna dismissed the appeals of all surviving convicts. Eleven of them sought special leave before the Supreme Court; Kamala Roy’s special leave petition was dismissed because he had not surrendered. The Supreme Court granted leave to the other ten, whose appeal is the subject of this judgment.
Legal Issues Presented
- Whether the conviction of the ten appellants under Section 302 read with Section 149 IPC could be sustained when no overt act or evidence of a common object to commit murder was proved against them.
- Whether, in light of the appellants’ acquittal, the same benefit should be extended to Kamala Roy, whose special leave petition was earlier dismissed for non-surrender.
Arguments of the Parties
Appellants' Arguments
- No prosecution witness attributed any specific overt act to the appellants; only Govind Rai and Sohai Lohar were implicated in the assault and shooting.
- Medical evidence did not corroborate the omnibus allegation that the appellants had attacked with lathis.
- Cited several Supreme Court decisions to argue that, where no evidence links an accused to the common object, conviction under Section 149 IPC is unsustainable and any resultant benefit should extend to similarly placed co-accused.
State's Arguments
- The State’s counsel conceded that there was “no material whatsoever” to establish that the appellants shared the common object attributed to Govind Rai or Sohai Lohar.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dandu Lakshmi Reddy v. State of A.P., (1999) 7 SCC 69 | Relied on by appellants to show that benefit of acquittal should extend to similarly situated co-accused. | Court declined to extend benefit to Kamala Roy at this stage. |
| Raja Ram v. State of M.P., (1994) 2 SCC 568 | Same proposition as above. | Same outcome; benefit not extended. |
| Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra, (2003) 2 SCC 708; JT (2002) 2 SC 158 | Same proposition as above. | Same outcome; benefit not extended. |
| Harbans Singh v. State of U.P., (1982) 2 SCC 101 | Same proposition as above. | Same outcome; benefit not extended. |
Court's Reasoning and Analysis
The Supreme Court undertook a close scrutiny of the record and found:
- The only proved acts were (i) Govind Rai striking PW-1 and the deceased with a stick, and (ii) Sohai Lohar shooting the deceased. Both acts were individual and not collective.
- No prosecution witness attributed any overt act to the appellants; the general statement in the complaint that they were “armed with lathis” was not supported by medical evidence.
- The State itself conceded the absence of evidence pointing to a common object shared by the appellants with the principal assailants.
- In the absence of such evidence, invoking the vicarious liability of Section 149 IPC was “totally uncalled for.”
- On the request to extend relief to Kamala Roy, the Court held that, given his non-surrender and dismissal at the SLP stage, it would not grant that benefit, though his legal remedies remain open.
Holding and Implications
Holding: The appeal is allowed; the convictions and life sentences of the ten appellants under Section 302 read with Section 149 IPC are set aside. They are to be released forthwith, if not required in any other case.
Implications: The decision provides relief only to the ten appellants and does not create new legal precedent; it reiterates the necessity of concrete evidence to establish a common object for liability under Section 149 IPC. The Court expressly declined to extend the benefit to non-surrendering co-accused Kamala Roy.
N. Santosh Hegde, J.— The eleven accused whose appeal before the High Court of Judicature at Patna came to be dismissed, have preferred the special leave petition before this Court from which this appeal arises. On 7-12-2001, this Court dismissed the appeal of Kamala Roy, Petitioner 6 in the said SLP since he did not surrender before preferring the SLP. This Court granted leave to appeal in regard to the other ten appellants, hence, this appeal is now confined to the said ten appellants only.
2. Before the learned Additional Sessions Judge, Buxar in Sessions Trial No. 438 of 1992, thirteen persons including ten appellants herein, were charged for offences punishable under Section 302, Section 302 read with Section 149 for having caused the death of one Rajendra Kanu on 24-6-1991 at Village Dhobahi, Police Station Dhansoi, Buxar. During the pendency of trial, one of the accused persons — Govind Rai — died, hence, the proceedings against him abated. Learned Sessions Judge convicted one Sohai Lohar under Section 302 IPC while other eleven persons including Kamala Roy whose appeal has since been dismissed by this Court, were convicted under Section 302 read with Section 149 IPC. The High Court in the appeal filed by Sohai Lohar dismissed the same and the said accused has not preferred any further appeal against his conviction and sentence. As stated above, the other eleven accused persons whose conviction and sentence was confirmed by the High Court, have preferred this appeal out of which the appeal of Kamala Roy has since been dismissed by this Court.
3. Brief facts necessary for disposal of this appeal are as follows:
There was a certain dispute in regard to the possession of the government land situated opposite the house of Matwar Kanu, PW 3. While the accused party headed by Govind Rai claimed possession of the same, the complainant party headed by PW 3 was contending that the land in question was in their possession. On 24-7-1991 at about 6 p.m when the family members of PW 3 including his two brothers and his son i.e the deceased Rajendra Kanu, were planting bamboos on the land in question, all the accused persons allegedly came to the spot and attacked the complainant's family who were present on the said land. In the course of the said attack, the accused Govind Rai assaulted PW 1 and the deceased with a stick which caused bleeding injuries to the said victims. The prosecution then states that on being so attacked, the members of the complainant family ran away, while so running, the accused Sohai Lohar allegedly shot Rajendra Kanu on his back with a country-made pistol (katta), consequent upon which the said Rajendra Kanu fell down dead. It is based on a complaint lodged by PW 3 and after investigation, a charge-sheet was filed against all these persons. In the trial before the learned Sessions Judge, the accused persons took the contention that the land in question was in their possession and while protecting the same, the incident in question had happened. Be that as it may, the only allegation made by the prosecution in the course of the trial is that it was Govind Rai who attacked some of the witnesses with a stick and Sohai Lohar shot the deceased with a katta. The said Govind Rai is stated to have died so the proceeding against him has abated while Sohai Lohar who has been convicted for his individual act under Section 302 IPC has preferred no appeal, therefore, the matter stands concluded in regard to these two accused persons against whom the abovestated overt acts have been attributed by the witnesses. Though in the complaint, it is generally stated that all the other accused persons were armed with lathis and took part in the attack, in the examination of the prosecution witnesses before the court, no overt act of any sort has been attributed to the other accused persons. Surprisingly, both the courts below without properly considering the material on record, by the aid of Section 149 have convicted all these appellants of offences punishable under Section 302 read with Section 149 IPC, and sentenced them to undergo imprisonment for life. We have very carefully gone through the material on record with the help of the learned counsel for the parties, and we find no material whatsoever to hold that any one of these appellants shared any common object of either Govind Rai, the deceased accused, or Sohai Lohar who is convicted under Section 302 for committing the murder of the deceased. Though in the complaint, there is an omnibus statement that these appellants also attacked with lathis, the medical evidence does not support this case nor in their evidence before the court the prosecution witnesses have attributed any overt act to these appellants. Learned counsel appearing for the State very fairly conceded that there is no material whatsoever to hold these appellants guilty of sharing the common object of either Govind Rai, the deceased accused, or Sohai Lohar. Therefore, we are of the opinion that the conviction recorded against these appellants is totally uncalled for and without any material hence, this appeal has to succeed and the conviction and sentence imposed on these appellants by the courts below are set aside, and the appellants are directed to be released forthwith, if not wanted in any other case.
4. However, learned counsel for the appellants relying on the judgment of this Court in Dandu Lakshmi Reddy v. State of A.P (1999) 7 SCC 69, Raja Ram v. State of M.P (1994) 2 SCC 568, Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra (2003) 2 SCC 708, JT (2002) 2 SC 158 and Harbans Singh v. State of U.P (1982) 2 SCC 101 contends that since we are allowing the appeal of these appellants on the ground that there is no material against any accused except the deceased accused Govind Rai and convicted accused Sohai Lohar, the benefit of the same should also go to Kamala Roy whose appeal has been dismissed at the stage of SLP for his non-surrender. We do not think on facts of this case at this stage, we should extend that benefit to the said accused Kamala Roy, leaving open such remedy as is available to him in law, we reject this request at this stage.
5. Accordingly, the appeal of the appellants now before us stands allowed.
Alert