The appellants were sentenced to undergo life imprisonment for the offence punishable under Section 302 read with Section 34 of the IPC. (Para 1)
The motive pleaded by the prosecution is that two months before the incident, the accused no.3 had brought a horse of one Awadhi Yadav by committing theft. After learning about the theft, Awadhi Yadav called upon the accused no.3 to return the horse. When the accused no.3 tried to assault the said Awadhi Yadav, the deceased saved him, and therefore, the accused no.3 was annoyed with the deceased. Both the courts have believed the testimony of the eyewitnesses. (Para 3)
One of the grounds of challenge is the failure to examine other eyewitnesses. However, in the facts of the case, a total of five eyewitnesses were examined. It is not axiomatic that in every case where the eyewitnesses are withheld from the court, an adverse inference must be drawn against the prosecution. The totality of the circumstances must be considered for concluding whether an adverse inference could be drawn. We have perused the notes of evidence of the material witnesses. (Para 8)
Merely because they made no attempt to save the deceased or resist the accused is no ground by itself to disbelieve their case. The accused were carrying sticks and a gun. Therefore, the conduct of the appellants cannot be said to be unnatural. (Para 11)
The appellants were together and were in the company of the accused no.3. Obviously, they acted in concert. The appellants were carrying lathi, and the accused no.3, was moving with a musket. There was time available for the meeting of minds. Thus, the existence of common intention will have to be accepted. (Para 12)
SUPREME COURT OF INDIA
2023 STPL(Web) 474 SC
[2023 INSC 1068]
Maheshwari Yadav & Anr. Vs. State Of Bihar
Criminal Appeal No. 1515 of 2011-Decided on 13-12-2023
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