(Uday Umesh Lalit and Indu Malhotra, JJ.)
Afjal Hussain ______________________________________ Appellant;
v.
State of Bihar (Now Jharkhand) ______________________ Respondent.
Criminal Appeal No. 175 of 2011, decided on February 6, 2020
The Order of the court was delivered by
Order
1. This appeal by special leave challenges the judgment and order dated 11.05.2004 passed by the High Court of Judicature at Patna, Ranchi Bench, Ranchi in D.B. (Criminal) Appeal No. 72 of 2000 by which the conviction and sentence of the accused for the offence punishable under Section 302 read with 34 IPC was affirmed by the High Court.
2. The case of the prosecution as disclosed in the First Information Report lodged by one Anil Kumar Mishra (later examined as PW6) is to the following effect:
“Today on 10.02.1995 at about 5 O’Clock in the evening, I had gone to Sirsi along with my friend Ajay Kumar Gupta son of Jai Prakash Narayan Gupta, r/o Jai Prakash Marg, Kumhar Toli, P.S. Sadar. After keeping articles in the house, we went to meet our friends/villagers – Sanjay Rana and Vijay Varma. After meeting our friends, we had returned home along with my friend Ajay Kumar Gupta. Sanjay and Vijay were also coming behind us to see of. At about 6:15 O’Clock in the evening when we were about to reach home, then from the East direction, two persons riding on the scooter came and stopped the scooter close to us. Afzal r/o Village Bamha was driving the scooter while Arvind Kumar Mishra S/o Baskinath Mishra, R/o Sirsi, P.S. Pelawal, District Hazaribag was sitting on the rear seat. As soon as scooter stopped, Arvind Kumar Mihra fired gunshot by his pistol towards us. The gunshot did not hit to me, but it hit on the forehead of my friend Ajay Kumar Gupta, standing close to he and me fell down there itself shouting. And the scooter driver Afzal and Arvind Kumar Mishra filed away on scooter in the Western direction. Having heard the sound of fire, villagers ran towards the scooter. Then with the help of villagers, we brought my injured colleague Ajay Kumar Gupta at Sadar Hospital, Hazaribag, where doctor declared him dead. …”
3. Accused Arvind Kumar Mishra, the assailant, along with accused Afjal Hussain (present appellant) were tried in the Court of 2nd Additional Sessions Judge, Hazaribagh, Jharkhand, in Sessions Trial No. 142 of 1995 for the offence punishable under Sections 302/34 IPC.
4. The prosecution in support of its case relied upon the eye witness account of four witnesses, namely, PWs 1, 2, 3 and 6. Gist of their testimony was to the following effect:
A. PW1 Sanjay Kumar Rana deposed as under:
“2. When we reached close to a ‘Ball’ tree at village Sirsi itself, then Afzal came riding on a scooter, Arvind Mishra was sitting with him on the rear seat. Immediately after taking side from us, Arvind Mishra fired gunshot, which hit to Ajay Gupta.
3. Ajay Gupta fell down after becoming injured. Both the assailants started running on the scooter in the Western side, then they ran in the North direction. Upon chasing and raising hue and cry by the villagers, both of them ran away after leaving the scooter. I cannot tell as to why both accused persons perpetrated the assault.
In answer to questions put by the Court, the witness deposed as under:
24. Upon turning back, after hearing the sound of firing gunshot, I found Arvind Mishra was alighted from the scooter. He was having Revolver in his hand and Afzal ran away by scooter. After hearing the sound of firing gunshot, Anil Mishra went into the house of Vijay Varma. We both the remaining persons tried to catch Arvind, but did not catch, as he was having Revolver in his hand.”
B. PW2 Bijay Kumar Verma deposed as under:
“2. As soon as we the above-mentioned five persons reached close to the ‘Ball’ tree at the village, then a scooter came from the Eastern Side, which was being driven by Afzal while Arvind Kumar Mishra was sitting in the rear seat.
3. Upon giving side to scooter by us, it went ahead and went backside of us. Arvind Kumar Mishra fired gunshot with his pistol from the scooter, which hit to Ajay Kumar Gupta, due to which he fell down shouting there itself. Arvind wanted to fire another gunshot, then I raised alarm, due to which both of them started running away.
4. Upon raising alarm by us, both of them filed away on feet, after going some distance away, leaving the scooter. We could not be able to read the number of the scooter.”
The answers given by the witness to the question put by the Court were as under:
“30. Upon turning after firing the first gunshot, I saw and found that Arvind Mishra was trying to fire another gunshot. In the meantime, upon raising alarm by us, Afzal ran away by taking the scooter.”
C. PW3 Mukul Kumar deposed as under:
“1. The incident relates to 10.02.95. It was 5:30 – 6:00 O’Clock time in the evening. I along with Anil Kumar Mishra, Ajay Gupta, Sanjay and Vijay were going to the house of Anil Kumar Mishra at Village Sirsi. When I reached in front of the house of Pyare Rajak, then from the East side one scooter came, which was being driven by Afzal while Arvind Kumar Mishra was sitting on it.
2. We gave side to the scooter, whereupon after going ahead and taking the scooter behind us, Arvind Kumar Mishra fired gunshot with his pistol from right side, which hit to Ajay Gupta, due to which he fell down shouting there.
3. When Arvind Kumar Mishra wanted to fire another shot, we raised alarm and tried to catch him, whereupon both of them started running by taking scooter. We chased them with the help of villagers, then after going some distance away, they filed away, leaving the scooter.”
This witness also answered the questions put by the Court as under:
“24. At that time scooter was in motion mode. Nobody had told me the name of Afzal there, rather I knew him previously. I do not know his father as well as brother’s name.
25. Prior to the occurrence, I had not seen Afzal plying that scooter.
26. During that night, SHO had recorded the statement of Sanjay, Vijay and mine. He was reducing the statement into writing in the light of Lantern. I do not remember if I had said to police during my statement that scooter was belonging to Afzal. During this incident, I did not see Afzal doing any overact.”
D. Lastly, informant PW6 Anil Kumar Mishra deposed as under:
“3. About 20-25 ft. before the house, there is a ‘Ball’ tree. Upon coming from that side, it would come in the right direction. As soon as we reached there, we saw a scooter coming from the front side at a very high speed, which was being driven by Afzal while Arvind Kumar Mishra was sitting on the rear seat.
4. That scooter stopped after crossing us and covering about 7-8 hands distance ahead. Upon turning back, I saw Arvind Mishra was having a pistol/revolver in his hand, by which he fired gunshot. However, the bullet did not hit to me and it hit to Ajay Gupta near right ear over temple.
5. Ajay Gupta feel down shouting. When I felt that gunshot has been hit to Ajay Gupta, I became astonished. The assailants went towards West direction after arriving from East side. Upon raising alarm by the boys accompanying us, villagers came and chased the scooter. And some villagers took away Ajay to the hospital by motor-cycle after lifting him. Upon reaching hospital, I came to know that Ajay was declared dead.”
5. Thus, it was consistent case of all the eye-witnesses that the scooter was being driven by the present appellant while the assailant Arvind Kumar Mishra was riding on the pillion. It is true that the gun-shot was fired by Arvind Kumar Mishra which proved to be fatal and took away the life of the victim Ajay Kumar Gupta. The role played by the assailant is clearly adverted to by all the eye-witnesses and the consistent accounts prove the guilt of the accused Arvind Kumar Mishra beyond reasonable doubt.
6. The question however remains whether the present appellant could be held guilty by principle of vicarious liability with the aid of Section 34 IPC.
7. It is true that the appellant has not done any act of firing. However, he was the one who was driving the two wheeler; at the relevant time he stopped the two wheeler; and after the gunshot was fired by the assailant, he facilitated the escape of the assailant. It is correct that there appears to be a slight inconsistency in that one of the eye-witnesses asserted that both the accused filed away leaving behind the scooter but rest of the eye-witnesses are consistent that the accused filed away with the scooter which in turn means that escape was definitely facilitated by the appellant.
8. Considering the facts and circumstances on record, in our view, the Trial Court and the High Court were right in concluding that the appellant was guilty of the charge levelled against him. The role played by the appellant would definitely come within the purview of Section 34 IPC.
9. The conviction and sentence recorded against the appellant under Sections 302 read with 34 IPC, therefore, does not call for any interference. We find no infirmity in the assessment made by the Courts below. This appeal is, therefore, dismissed.
10. Before we part, we must note that by order dated 06.07.2011, this Court had directed that the appellant be released on bail, subject to the satisfaction of the 2nd Additional Sessions Judge, Hazaribagh, Jharkhand. It appears that the appellant has been enjoying the benefit of bail since then. Now that the appeal has been dismissed, we direct the appellant to surrender within two weeks from today before the 2nd Additional Sessions Judge, Hazaribagh, Jharkhand to undergo the sentence imposed upon him in Sessions Trial No. 142 of 1995. In case, the appellant fails to surrender within the period stipulated, the bail-bonds shall stand forfeited and the appellant shall be arrested without any further delay to undergo the remaining sentence. In either case, a report shall be submitted by the concerned Police Station and the jurisdictional Chief Judicial Magistrate reporting compliance of the directions issued by this Court.
11. With the aforesaid directions, the appeal stands dismissed.
Criminal Appeal No. 175/2011
Afjal Hussain ______________________________________ Appellant
v.
State of Bihar (Now Jharkhand) _______________________ Respondent
Date : 06-02-2020 This appeal was called on for hearing today.
(Before Uday Umesh Lalit and Indu Malhotra, JJ.)
For Appellant(s) Ms. Aishwarya Bhati, Sr. Adv.
Mr. Nithin Pavuluri, Adv.
Ms. Celeste Agarwal, Adv. Gp. Capt.
Mr. Karan Singh Bhati, AOR
For Respondent(s) Mr. Krishnanand Pandeya, AOR
Mr. Jayesh Gaurav, Adv.
UPON hearing the counsel the Court made the following
ORDER
12. The appeal is dismissed, in terms of the Signed Order.
13. Pending application(s), if any, shall stand disposed of.
———
