TaxTMI 
TaxTMI 
2017 (2) TMI 1544
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....pellants armed with bomb explosives and guns came near his shop. Appellant Sheikh Shamsul hurled a bomb at the deceased and as a result of the explosion Askari fell down on the Gaddi of the shop. In the meanwhile, Appellant Sheikh Ashfaq also attacked him by a bomb which hit him on the chest and exploded and consequently Askari died at the Gaddi itself. Informant's another nephew, namely, Mohd. Asad, who was at the Flour Mill just opposite the shop of Askari, hearing the sound of explosion came running to the shop and he was also attacked by a bomb by Accused Sheikh Gheyas. Due to explosion Mohd. Asad sustained severe injury, fell down near the shop and became unconscious. Md. Vasir (PW1) who was standing there was also injured. On hearing the sound of the bomb explosion, villagers assembled there and Appellants fled away towards North, firing shots in the air. Injured Mohd. Asad was taken to Bhagalpur hospital by the villagers in critical condition but he succumbed to injuries at the hospital on the same day. 3. Motive of the occurrence, according to first information report ('FIR'), is that two years prior to the occurrence, a case Under Section 307 of Indian Penal....
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....02 read with Section 149 of Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for a period of three years. 7. Being aggrieved by the aforesaid judgment and order of the Trial Court, the Accused persons filed appeals before the High Court. While 1st Additional Sessions Judge, Bhagalpur, made Death Reference No. 2 of 2003 vide letter dated 18.02.2003 for confirmation of death sentence, Criminal Appeals Nos. 92, 98, 122-126 of 2003 were preferred by the Accused persons seeking acquittal. 8. The High Court vide its judgment and order dated 5th October, 2007, rejected the death reference and also dismissed the aforesaid appeals filed by Accused persons and confirmed their conviction. However, the death sentence of Accused Sheikh Samsul and Sheikh Gheyas was commuted to imprisonment for life. Aggrieved by the aforesaid judgment and order passed by the High Court, the Accused persons have sought to challenge the same before us in these appeals. 9. Keeping in mind the position of law as enunciated in the case of Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211, pertaining to the principles for exercise of power Under Article 1....
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....479 and State of Bihar v. Prajeet Kumar Singh 2006 (2) PLJR 656, rejected the death reference holding that the case was not falling in the category of rarest of rare cases. 13. While upholding the judgment and order of conviction passed by the Trial Court, the High Court has primarily relied upon the evidence of eye-witnesses, PW14, PW4, PW5 and PW9 who were found to be trustworthy and reliable. The High Court held that the Accused were sharing the common object of doing away the deceased. However, from a perusal of the cross examinations of PW4 and PW5, it appears that there was personal enmity and PW3, PW4, PW14 were made Accused in a case of murder of Asfak, son of Sheikh Samsul, Appellant herein. PW14 had also filed a case Under Section 307 of Indian Penal Code against the Appellants two years prior to the date of the incident which was still pending. 14. Further, looking to the evidence given by PW9, though not an eye-witness, the factum of assault with a bomb on deceased Mohd. Asad was corroborated. According to him he is also a witness to the seizure of empty cartridge from Sheikh Ishteyaque. 15. Mr. Huzefa Ahmadi, learned senior Counsel for Appellants contented tha....
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....stands on a higher pedestal than other witnesses and reliance should be placed on it unless there are strong grounds for rejection of his evidence. [See also Hem Raj and Ors. v. State of Haryana (2005) 10 SCC 614] 18. Finally, it has been argued by the learned senior Counsel appearing for the Appellants that the post-mortem report does not support the prosecution story that injury was caused only by a powerful bomb. It was submitted that both the deceased were not close to each other and deceased Asad was running towards the shop when a bomb was allegedly thrown at him. Other Accused were standing with guns in their hands but they did not share the common object and hence cannot be held liable. In support of this, learned senior Counsel relied on the case of Bhim Rao and Ors. v. State of Maharashtra (2003) 3 SCC 37, wherein it was observed: In the absence of any material to the contrary, it should be presumed that those members of the original unlawful assembly who only shared the common object of assaulting deceased Prabhakar cannot be attributed with the subsequent change in the common object of some of the members of the assembly who entered the house of Prabhakar an....