Patna High Court
Ajay Kumar Singh And Anr vs The State Of Bihar on 3 October, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1508 of 2017
Arising Out of PS. Case No.-6 Year-2017 Thana- TAJPUR District- Samastipur
======================================================
1. Ajay Kumar Singh
2. Ranjay Singh
Both sons of Satrughan Singh, Resident of Village- Madhopur Digharuwa,
Police Station- Tajpur, District- Samastipur.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1466 of 2017
Arising Out of PS. Case No.-6 Year-2017 Thana- TAJPUR District- Samastipur
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Arjun Singh, son of Late Dhanpat Singh, Resident of Village- Madho Pur
Digharuwa, P.S.- Tajpur, District- Samastipur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1508 of 2017)
For the Appellant/s : Mr. Pratik Mishra, Advocate
Mr. Vatsal Vishal, Advocate
Mr. Birendra Kumar Singh, Advocate
For the Respondent/s : Mr. Ajay Mishra, Addl.P.P.
(In CRIMINAL APPEAL (DB) No. 1466 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Md. Imtiyaz Ahmad, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, Addl.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 03-10-2024
These two appeals have been preferred for setting aside
the judgment of conviction dated 12.10.2017 (hereinafter
referred to as the 'impugned judgment') and the order of
Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024
2/49
sentence dated 17.10.2017 (hereinafter referred to as the
'impugned order') passed by learned Presiding Officer, Fast
Track Court-II, Samastipur (hereinafter referred to as the
'learned trial court') in Sessions Trial No.467 of 2017 arising
out of Tajpur P.S. Case No.6 of 2017.
2. By the impugned judgment, the appellants have been
convicted for the offences punishable under Sections 147, 148,
323, 302/149 and 120B of the Indian Penal Code (in short
'IPC') and by the impugned order, the appellants have been
ordered to undergo life imprisonment with a fine of Rs.10,000/-
under Section 302/149 IPC and in default of payment of fine,
they have to further undergo one year simple imprisonment.
They have been further ordered to undergo life imprisonment
under Section 120B IPC, one year simple imprisonment under
Section 147 IPC, two years simple imprisonment under Section
148 IPC and six months simple imprisonment under Section 323
IPC.
Prosecution Case
3. The prosecution story is based on the fardbeyan of
Vinod Kumar Singh (PW-6) recorded by Barkat Ali ASI of
Tajpur Police Station at Sadar Hospital, Samastipur on
12.01.2017at 20:15 PM. In his fardbeyan, PW-6 has alleged Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 3/49 that on 12.01.2017 at about 02:00 PM in the daytime, Babloo Kumar Singh, son of Late Devendra Singh came at his door (Darwaza) he had a loan of Rs.500/- from the mother of the informant so when the informant's mother asked him to return her money, he started arguing and abusing her and also threatened her to face the consequences in the evening. In the evening at about 07:00 PM, the informant, his younger brother, namely, Pramod Singh and elder brother Ram Babu Singh were sitting at the door of the house, in the meantime, (1) Babloo Kumar Singh, (2) Arjun Singh, (3) Pankaj Kumar Singh, (4) Rama Singh, (5) Anil Singh, (6) Virendra Singh, (7) Sushil Singh @ Guddu Singh, (8) Mukesh Singh, (9) Ajay Kumar Singh, (10) Ranjay Singh and (11) Kameshwar Singh all forming an unlawful assembly and armed with weapons arrived at the door of the informant. On reaching, Babloo Kumar Singh caught hold of the informant's neck, abused him and started assaulting him. Arjun Singh, Pankaj Kumar Singh, Rama Singh and Anil Singh caught hold of the younger brother of the informant, namely, Pramod Kumar and started assaulting him. Virendra Singh, Sushil Singh, Mukesh Singh all three with intention to kill Pramod Kumar, brutally assaulted him with knife and in the meanwhile, Ajay Kumar Singh, Ranjay Singh Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 4/49 and Kameshwar Singh caught hold of Ram Babu Singh (PW-2) and were assaulting him. On hearing hulla, when the villagers came then all accused persons fled away leaving the informant and his brothers. Pramod Kumar Singh was seriously injured and he fell down. The informant and others took Pramod Kumar to the hospital for treatment but he died on way. The informant alleged that the above-named accused persons forming an unlawful assembly killed the informant's younger brother Pramod Kumar Singh by brutally assaulting him with knife.
4. On the basis of the aforesaid fardbeyan, Tajpur P.S. Case No. 06 of 2017 dated 13.01.2017 was registered for the offence punishable under Sections 147, 148, 149, 448, 341, 323, 324, 302, 504, 506 IPC against (1) Bablu Kumar Singh, (2) Arjun Singh, (3) Pankaj Kumar Singh, (4) Raja Singh, (5) Anil Singh, (6) Birendra Singh, (7) Sushil Singh, (8) Mukesh Singh, (9) Ajay Kumar Singh, (10) Ranjay Singh and (11) Kameshwar Singh. After investigation, police submitted chargesheet bearing Chargesheet No. 21 of 2017 dated 31.03.2017 against (1) Pankaj Singh, (2) Sushil Singh @Guddu Singh, (3) Mukesh Singh, (4) Kameshwar Singh, (5) Raja Singh, (6) Birendra Singh @Mohabia, (7) Bablu Singh, (8) Anil Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 5/49 Singh showing them absconder and further against custody accused (9) Arjun Singh , (10) Ajay Singh and (11) Ranjay Singh. On the basis of this chargesheet. Learned Magistrate took cognizance on 13.04.2017. On 19.05.2017 records of accused Arjun singh, Ajay Singh and Ranjay Singh was committed to the court of Session upon which S.T. No.467 of 2017 : 216 of 2017 was registered in which charge was framed against them on 09.06.2017 under Section 147, 148, 323, 302/149, 120B of the IPC. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried.
5. In course of trial, the prosecution examined as many as eight witnesses and exhibited several documents to prove the prosecution case. The names of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:-
List of Prosecution Witnesses PW-1 Vikash Kumar PW-2 Ram Babu Singh PW-3 Munni Devi PW-4 Sunil Kumar Singh @ Tuntun PW-5 Khushboo Kumari PW-6 Vinod Kumar Singh PW-7 Dr. Hemant Kumar Singh PW-8 Manoj Kumar List of Defence Witness Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 6/49 DW-1 Raj Kumar Singh List of Exhibits on behalf of Prosecution Ext- 1 "kiFki= tks fodk"k dqekj ds }kjk nkf[ky gS Ext- 2 e`R;q leh{kk fjiksV lqfuy dqekj flag dk gLrk{kj Ext- 2/1 e`R;q leh{kk fjiksV ij eks- rkSfdj dk gLrk{kj Ext- 1/1 "kiFki= ij [kq"kcq dqekjh dk gLrk{kj Ext- 1/2 "kiFki= ij Jh e`R;qat; dqekj vf/koDrk dk gLrk{kj Ext- 3 QnZC;ku Ext- 4 fojks/ki= Ext- 1/3 "kiFki= Ext- 5 Postmortem report Ext- 6 i`'Bkadu ¼QnZC;ku½ Ext- 7 vkSipkfjd izkFkfedh Ext- 8 e`R;q leh{kk fjiksV Ext- 9 vkjksi i= List of Exhibits on behalf of Defence Ext A Certified copy of FIR Tajpur P.S. case no. 194/04 Ext B dsokyk dk lPph izfrfyfi fnukad 12-11-09 jke foykl flag cuke equs"oj flag Ext B/1 dsokyk fnukad 27-11-09 ;qxs"oj flag cuke equs"oj falag Ext B/2 dsokyk fnukad 2-3-12 qWHkTtq jk; cuke equs"oj flag Ext B/3 dsokyk fnukad 12-9-11 ककररर क dqekj cuke equs"oj falag Ext B/4 dsokyk fnukad 22-2-07 eUVks nsoh cuke equs"oj flag Ext B/5 dsokyk fnukad 7-6-02 y{e.k iz0 ekFkqj cuke equs"oj flag Ext B/6 dsokyk fnukad 9-8-14 d`'.k dqekj flag cuke equs"oj falg Ext B/7 dsokyk fnukad 29-8-12 vkse izdk"k ekFkqj cuke fxjtk nsoh Ext B/8 dsokyk fnukad 8-1-16 equh nsoh cuke fxjtk nsoh Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 7/49 Ext B/9 dsokyk fnukad 24-9-08 bUnq nsoh cuke equs"oj flag Ext B/10 dsokyk fnukad 22-8-07 :ny oSnk cuke equs"oj flag Ext B/11 dsokyk fnukad 30-10-12 fouksn dqekj flag cuke fxjtk nsoh Ext B/12 dsokyk fnukad 7-12-12 Qsdq jk; cuke fxjtk nsoh Ext B/13 dsokyk fnukad 14-9-09 eksequh nsoh cuke fxjtk nsoh Ext B/14 dsokyk fnukad 14-5-08 jktpUnz flag cuke equs"oj flag Ext B/15 dsokyk fnukad 25-06-07 fnus"k iz0 flag cuke equs"oj falg Ext B/16 dsokyk fnukad 24-5-07 jktsUnz iz0 falag cuke equs"oj flag Ext B/17 dsokyk fnukad 21-3-16 jkts"k dqekj ekFkqj cuke equs"oj falg Ext B/18 dsokyk fnukad 30-12-13 v"kksd dqekj ekFkqj cuke fxjtk nsoh Ext B/19 dsokyk fnukad 1-9-06 vtZwu flag cuke equs"oj flag Ext B/20 dsokyk fnukad 8-1-06 larksl pUnz >k cuke fxjtk nsoh Findings of the Learned Trial Court
6. Learned trial court, after analyzing the evidence brought during trial found that prosecution has succeeded in proving that deceased Pramod Singh was murdered, the postmortem report and the evidence of the doctor proved that the deceased was having knife injury on his body. The learned trial court rejected the contention of defence that no independent witness has come to support the prosecution case saying that in the present days no other person is ready to become enemy by giving evidence in such type of occurrence. In that circumstance, the evidence of family members can be Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 8/49 relied upon.
7. The learned trial court after analyzing the evidence of the defence witnesses came to conclusion that defence has failed to prove that with whom the deceased was having enmity and who has killed him and where he was killed rather from the evidence of defence witnesses it has come that deceased Pramod Singh had not purchased any land on his name as also has not sold any land himself. The learned trial court took note of the evidence of DW-3 that the deceased was having good relation with the accused persons as the deceased had held the post of surpanch in earlier time and was also involved in legal practice and he had no enmity with others except the accused persons.
8. The learned trial court examined the evidence of doctor (PW-7) and found that the defence has failed to extract any contradiction from his evidence and the doctor has replied the question of defence categorically in regard to the injuries found on the body of the deceased. Regarding the place of occurrence, learned trial court relied on the evidence of I.O. and found that the accused persons injured the deceased by knife at the door of the informant Bathan near his house after forming unlawful assembly. The learned trial court while analyzing the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 9/49 evidence of informant (PW-6) found that the informant identified his fardbeyan and also identified the protest petition filed during investigation and the informant identified the accused persons present in the court. The learned trial court found that in cross-examination this witness has categorically stated that Babloo Singh assaulted him by fists and slaps, the appellants slapped Rambabu Singh (PW-2) and further in paragraph 16 it is stated that amongst others appellant Arjun Singh caught hold of deceased Pramod Singh, Pankaj Singh was pressing his mouth, Raja Singh and Anil Singh were catching hold of his hands from behind, Virendra, Sushil and Mukesh stabbed him. This happened within 4-5 minutes. Leaned trial court found that this witness has stated that Pramod Singh received injuries on Panjara, back and chest. The learned trial court relied on the evidence of this witness.
9. Learned trial court found that the accused persons facing trial with other accused persons, after forming an unlawful assembly went at the door of the 'Bathan' of the informant and caused injury to Pramod Soingh by knife who died on way to hospital. Learned trial court observed that though the appellants are not among the persons who stabbed the deceased but found that Arjun Singh was catching hold the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 10/49 deceased with other accused persons and accused Ajay Singh and Ranjay Singh indulged in assault to the brothers of the deceased when they went to save the deceased. Therefore, the appellants were involved in the occurrence and they have common intention to kill Pramod Singh. Accordingly, learned trial court held the appellants guilty under Section 147, 148, 323, 302/149 and 120B of the IPC.
Submissions on behalf of the Appellants
10. Mr. Ajay Kumar Thakur, learned Advocate in Cr. App (DB) No. 1466 of 2017 and Mr. Pratik Mishra, learned counsel for the appellants in Cr. App (DB) No. 1508 of 2017 have placed before this Court the evidences available on the record. It is submitted that the date of occurrence is said to be in the middle of the month of January, 2017. It is the prosecution's case that the occurrence in which the mother of the deceased had demanded her dues of Rs. 500/- from Bablu Kumar Singh took place at 02:00 P.M. The second occurrence in which Pramod Kumar Singh was murdered, happened at 07:00 P.M. on the same day. The date of occurrence is 12th January, 2017. It has been pointed out to this Court that on the said date, the sunset is likely to have taken place at about 5:15 P.M., therefore, when the second occurrence took place, the darkness Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 11/49 had already prevailed. Neither in the fardbeyan of Binod Kumar Singh (PW-6) nor in the statement of prosecution witnesses, it has come that what were the source of light at the place of occurrence. The I.O. had not seized any source of light. Nothing has been said about it. Even assuming that the assailants were co-villagers of the deceased and they could have been identified by their body movements and other features, it is difficult to believe that the prosecution witnesses would have seen the role played by each of the accused in the darkness with such precision as stated in the fardbeyan.
11. Learned counsel submits that the fardbeyan of PW-6 was recorded by ASI Barkat Ali of Tajpur police station at Sadar Hospital, Samastipur on 12.01.2017 at 08:15 P.M. but from the endorsement made on the fardbeyan (Exhibit-6) and the formal FIR (Exhibit-7), it would appear that the FIR was registered on 13.01.2017 at 09:30 A.M. It is pointed out that the date of dispatch of the FIR to the court of learned Jurisdictional Magistrate has not been mentioned in the formal FIR but from the endorsement made at the top of the FIR, it would appear that the learned ACJM-I, Samastipur had seen the FIR on 14.01.2017. The submission is that on the one hand, the FIR was not promptly lodged within a reasonable period and at that same Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 12/49 time, even when it was registered on 13.01.2017 at 09:30 A.M., it was not sent to the court of learned Magistrate on the same day. This would gain importance in the fact that the Samastipur court is only at a distance of 12 km. Thus, according to him, the fardbeyan of the informant is antedated and antetimed.
12. Learned counsel submits that Barkat Ali, ASI of Tajpur police station, who had recorded the fardbeyan of PW-6 has not been examined in this case which has caused serious prejudice to the defence. The Investigating Officer (PW-8) has stated that he had received information by way of a rumor that one person has been injured by knife in Madhopur Digharua and on receiving the said information, he had lodged a Sanha but he had not mentioned about it in the case diary. He had himself gone to the Sadar Hospital and in his presence, ASI Barkat Ali had recorded the fardbeyan of PW-6. The submission is that the I.O. of this case has stated that he returned with the fardbeyan and Inquest report of the deceased to the police station but it would appear from the evidence on the record that the I.O. (PW-
8) who was posted as Officer-in-Charge of the police station, did not register the FIR on that date. It is submitted that the delay in lodging of the first information report would create a doubt about authenticity of the date and time as also the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 13/49 allegations made in the FIR which is the basis of the present FIR.
13. Learned counsel submits that in the fardbeyan, it is stated that the informant (PW-6) as well as his elder brother Ram Babu Singh (PW-2) both were assaulted by the accused persons. While it is stated that Bablu Kumar Singh had slammed down the informant by catching hold of his neck, other accused, namely, Ajay Kumar Singh, Ranjay Singh and Kameshwar Singh caught hold of his elder brother Ram Babu Singh and they were assaulting him. It is submitted that in course of evidence, PW-2 as well as PW-6 both have stated that they had not suffered any injury in the said occurrence. In fact, the story of the injuries or hurt caused to PW-2 and PW-6 has not been proved in course of trial.
14. It is submitted that the genesis of this occurrence is said to be a quarrel which had taken place on 12.01.2017 at 02:00 P.M. between the mother of the deceased and the accused Bablu Kumar Singh, in which Bablu Kumar Singh is said to have abused her and threatened her to see the consequences in the evening. The mother of the deceased was, therefore, the most competent witness to prove the fact that there was a quarrel with her at 02:00 P.M. in which she had been threatened Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 14/49 by Bablu Kumar Singh but it would appear from the deposition of the I.O. (PW-8) that he had not recorded the statement of Girja Devi, the mother of the deceased. Girja Devi was, therefore, not even a chargesheet witness in this case. Rani Devi is the wife of the deceased and is said to have seen the occurrence was examined by the I.O. but she was not made a chargesheet witness. It is, thus, submitted that the withholdment of the material witnesses to prove the genesis of the occurrence would go against the prosecution and this Court may draw an adverse inference that the prosecution did not want to bring those witnesses in this case being afraid of that the truth which was otherwise would have been revealed in their evidence.
15. Learned counsel further submits that in this case as per the fardbeyan, the place of occurrence is the 'darwaja' of the house of the informant. The I.O. (PW-8) has stated that on 13.01.2017 at 02:00 A.M. (night hour), he had reached at the house of the informant in village Madhopur Digharua. Hundreds of villagers had assembled there. PW-8 has claimed that he had recorded the statement of the family members of the informant at the said place. All of them told him that the place of occurrence is the 'darwaja' but he had not inspected the 'darwaja' of the house as place of occurrence. He has stated that Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 15/49 the witnesses told him about the place of occurrence as 'darwaja' and 'bathan' also, he had inspected the 'bathan'. The I.O., however, did not find any incriminating material at the place of occurrence and had not found any sign of assault and quarrel at the 'bathan'. In paragraph '14' of his deposition, the I.O. has stated that no witness told him that the occurrence had taken place at 'bathan' and no witness told him about the sitting of the deceased and his brother Ram Babu Singh (PW-2) at the 'bathan'. In the background of this evidence of the I.O., learned counsel submits that in this case, the prosecution has not established the place of occurrence and the I.O. had not inspected the 'darwaja' of the house where the occurrence is said to have taken place.
16. Learned counsel further submits that according to the informant (PW-6), Munni Devi (PW-3) who is his wife and one Prem Lata had accompanied the deceased in injured condition from his house to Sadar Hospital, Samastipur. The vehicle in which the deceased was taken to Sadar Hospital, Samastipur was being driven by son of Lakshman Chawkidar but while Prem Lata and son of Lakshman Chawkidar have not been examined, the statement of Munni Devi (PW-3) was not recorded in the Sadar Hospital.
Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 16/49
17. Mr. Pratik Mishra, learned Advocate has while extending the arguments made by Mr. Ajay Kumar Thakur, learned Advocate submitted that in this case, the appellants have been convicted for the offence under Section 302 IPC with the aid of Section 149 IPC. It is his submission that to bring home an offence with the aid of Section 149 IPC, either of the two requirements of the Section are required to be fulfilled. The first requirement is that the accused who is being held guilty with the aid of Section 149 IPC was sharing the common object of unlawful assembly and the second requirement would be that he had knowledge that in order to achieve common object of unlawful assembly, the crime of which he is being punished is likely to take place. It is submitted that at the time of first occurrence at 02:00 P.M., these two appellants were not present. Regarding the occurrence at 07:00 P.M., it is stated that all were armed with weapon and it was Bablu who slammed down the informant by catching hold of his neck. According to fardbeyan of PW-6, three persons including the two appellants were assaulting the brother of the informant. The submission is that if these two appellants were armed with weapon, why would they assault the brother of the informant (PW-2) by giving him hand and fist blow. Learned counsel submits that the story of assault Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 17/49 upon the informant and the elder brother of the informant has not been proved by the prosecution. Referring to the statement of the I.O. in paragraph '14' of his deposition, it has been submitted that the I.O. has stated that no witness had said about the sitting of the deceased and Ram Babu Singh (PW-2) at the 'bathan'. He has further stated that no witness had made statement before him that when he had gone to save the deceased then Binod Kumar Singh and Ram Babu Singh were assaulted by these accused persons. It is submitted that in such circumstance where the role of the appellants as alleged is not getting proved beyond all reasonable doubts, his conviction with the aid of Section 149 IPC would not be safe. Learned counsel has placed before this Court the judgments of the Hon'ble Supreme Court in the case of Charan Singh and Others Vs. State of U.P. reported in 2004 SCC (Cri. ) 1041 (para 13); Amerika Rai and Others Vs. State of Bihar reported in (2011) 4 SCC 677 (paras 13 and 14); Naresh @ Nehru Vs. State of Haryana reported in (2023) 10 SCC 134 (paras 24-28) and Joseph vs. State represented by Inspector of Police reported in (2018) 12 SCC 283 (paras 11-18) to submit that in these judgments, the scope of two parts of Section 149 IPC have been well discussed.
Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 18/49
18. It is submitted that in the case of Lalji and Others vs. State of U.P. reported in (1989) 1 SCC 437 (para
14), the Hon'ble Supreme Court had occasion to consider as to whether members of an unlawful assembly really had the common object which would make him guilty for commission of the main offence.
19. It is submitted that in this case, PW-1, PW-3 and PW-5 were not named as witnesses in the fardebyan but in course of trial, they have been projected as eye witnesses. Their presence at the place of occurrence is highly doubtful. No independent witness has been examined in this case and above all, the conduct of the prosecution witnesses in saying that when the co-villagers assembled at the place of occurrence, they did not tell them about the persons who had committed the crime would further demonstrate that the prosecution was not sure about the persons who were involved in the killing of Pramod Kumar Singh (deceased). PW-1 has stated that he was studying at Patna.
20. Referring to the postmortem report (Exhibit-5) which has been proved by the Doctor (PW-7), learned counsel submits that in the postmortem report, PW-7 has recorded about the time since death as within 36 hours. In his cross- Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 19/49 examination, the Doctor was suggested that the meaning of time since death from the time of postmortem within 36 hours may also be within 30 hours and this witness has stated that the time since death from the time of postmortem, within 36 hours, may also be 30 hours. It is submitted that the occurrence is said to have taken place at 07:00 PM and the postmortem was conducted on the dead body at 10:00 PM, therefore, the postmortem was conducted within 3-4 hours of the occurrence but the Doctor had recorded that the time since death and the time of postmortem would be within 36 hours which may mean 30 hours. From the deposition of the Doctor, the time of death of the deceased as stated by the prosecution seems doubtful. Even if the postmortem report is taken as a probable opinion of the Doctor, there are several other materials which have been pointed out which would create a lot of doubt over the prosecution story. It is, thus, submitted that in this case, the prosecution has miserably failed to prove the genesis, motive, place and manner of occurrence. No evidence as regards criminal conspiracy has been led on behalf of the prosecution.
21. It is lastly submitted that at the stage of Section 313 Cr.PC statement of the accused persons, not a single incriminating circumstance as to the genesis of the occurrence Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 20/49 was placed before the accused which has deprived the accused from explaining the circumstances and it would prove fatal to the prosecution.
Submissions on behalf of the State
22. Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State has opposed the appeals. It is submitted that even as there is some lacuna in the investigation and the I.O. has not brought on record the Sanha, the prosecution has been able to prove the genesis of occurrence, place, date and time of occurrence as well as the manner of occurrence, through the eye witnesses who are the family members of the deceased but they are natural witnesses of this case.
23. The learned Public Prosecutor has defended the judgment of the learned trial court by submitting that non- examination of an independent witness in this case would not lead to any adverse inference against the prosecution. Her submission is that it is the quality of the evidence which would matter and not the quantity of the witnesses which would guide the judgment of the court.
24. Learned Public Prosecutor has further submitted that the appellants in these two appeals had gone to the place of occurrence with a pre-concert of mind, they were armed with Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 21/49 various weapons and their common object was to kill Pramod Kumar Singh who was an Advocate in Samastipur Court. In furtherance of the said common object, the occurrence took place in which Pramod Kumar Singh was killed.
Consideration
25. We have heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also perused the learned trial court's records. These three appellants, namely, Ajay Kumar Singh, Ranjay Singh and Arjun Singh have been convicted for the offences punishable under Sections 147, 148, 323, 302/149 and 120 IPC. As per the fardebyan of the PW-6, the place of occurrence is the door of the house. The appellants Ajay Kumar Singh and Ranjay Singh along with another accused Kameshwar Singh had allegedly caught hold of the elder brother (PW-2) of the informant and they were assaulting him. The said elder brother, namely, Ram Babu Singh has been examined as PW-2 in this case. According to him, in the occurrence which took place at 07:00 PM, 15-16 persons including these appellants came at the 'bathan' of the cows which is situated south to the 'darwaja', they were armed with weapons and they started abusing him and his brother Binod Singh. PW-2 has, therefore, changed the place of occurrence. He Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 22/49 has stated that when Pramod Kumar Singh asked the accused persons to refrain from abusing, Arjun Singh, Pankaj Singh, Raja Singh and Anil Singh, all four caught hold of him and Mukesh Singh, Sunil Singh and Birendra Singh started assaulting him on his chest by 'chhura'. This witness claimed that he went running to save him whereupon Ranjay Singh, Ajay Singh and Kameshwar Singh caught hold of him and they started assaulting him. This manner of occurrence materially differs from the manner disclosed in the fardbeyan of PW.-6. In his cross-examination, he denied in paragraph '10' that he had not made a statement before police that when he went to save his brother then Ranjay Singh, Ajay Singh and Kameshwar Singh caught hold of him and started assaulting him. The defence has taken contradiction on this point from the I.O. who has stated in paragraph '14' of his cross-examination that no witness had told him that when he went to save the deceased then accused persons had assaulted Binod Kumar Singh and Ram Babu Singh. Further, the I.O. has stated that no witness had stated him that in his presence, occurrence had taken place at the 'bathan' and no one had said about the sitting of the deceased and Ram Babu Singh (PW-2) at the place of occurrence.
26. We have also noticed from the deposition of PW-2 Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 23/49 that when the villagers assembled at the place of occurrence after hearing hulla, he did not disclose to the villagers the name of the persons who had been involved in the occurrence. This witness had not suffered any injury in the said occurrence. The other prosecution witnesses who have claimed themselves eye witnesses to the occurrence have also stated that PW-2 had not suffered any injury/hurt in the occurrence. On a close perusal of the evidences of the prosecution witnesses, it appears to this Court that the very presence of PW-2 and PW-6 at the place of occurrence is not getting proved in this case.
27. This Court has noticed that regarding the place of occurrence, initially the informant Binod Kumar Singh (PW-6) has stated that he along with his deceased brother Pramod Singh and elder brother Ram Babu Singh (PW-2) was sitting at the 'darwaja' of his house where eleven named accused persons came armed with weapon. Thus, 'darwaja' of the house is the place of occurrence as per the fardbeyan of PW-6.
28. PW-1 has stated in his examination-in-chief that at the time of occurrence, he was sitting at the 'darwaja' of his house where the accused persons came and the occurrence took place. He has stated that his elder father Ram Babu Singh (PW-
2) came to save his uncle Pramod Kumar Singh, Ranjay Singh, Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 24/49 Ajay Singh and Kameshwar Singh had caught hold of him and had assaulted him. PW-1 has stated that the occurrence took place for about 3-4 minutes. He did not remember whether Ram Babu Singh had suffered any injury on his body and after this occurrence, his mother Premkala Devi (not examined), sister Kajal Kumari (not examined) and Rekha Devi (not examined) had come. The prosecution has not examined these witnesses but introduced PW-3 and PW-5 who are the wife and daughter respectively of PW-6.
29. PW-2 has, however, stated about the place of occurrence being 'bathan' of the cow which is situated south to the 'darwaja'. Thus, PW-2 has given a different place of occurrence in his evidence. He has stated that adjacent south to his 'darwaja' is a road and adjacent to the same is his 'bathan'. PW-2 has stated that at the time of occurrence, he had shouted whereupon Vikash Singh (PW-1), Khushboo Kumari (PW-5), Munni Devi (PW-3) and Rani Devi (not examined) had reached. His evidence would demolish the claim of PW-1 that at the time of occurrence he was sitting at the Darwaza of the house which according to him is the place of occurrence. PW-1 has stated that he had raised hulla but this fact is not getting corroborated by PW-2. Similarly PW-1 does not say that PW-3 and PW-5 had Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 25/49 arrived at the place of occurrence after hearing hulla. Thus, PW- 2 has changed the place of occurrence. PW-6 has changed the place of occurrence from that of the fardebyan. He has not stated about presence or arrival of PW-1, PW-3 and PW-5 at the place of occurrence when the occurrence was going on. He only says that villagers had come. A conjoint reading of the deposition of PW-1, PW-2 and PW-6 would create a reasonable doubt as to very presence of PW-1, PW-3 and PW-4 at the place of occurrence.
30. The another prosecution witness PW-3 is the wife of the informant who has stated that she was inside her house when she heard the shoutings from her 'bathan' and when she came out and went to her 'bathan', then she saw the occurrence. It is worth mentioning that in their deposition, in the examination-in-chief, neither PW-2 nor PW-3 have stated about the first occurrence which took place at 02:00 PM on 12.01.2017. PW-3 has stated in her cross-examination that the land situated north to her house is of accused Kameshwar Singh. She was suggested that Kameshwar Singh, Ranjay Singh and Ajay Singh were objecting to the construction of tank ('sokhta') in the land of Kameshwar Singh and for this, a panchayati had taken place in which her husband (PW-6) had told to panch Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 26/49 Arjun Singh that he would remove the 'sokhta'. PW-3 has further stated that Pramod Kumar Singh (deceased), Ram Babu Singh (PW-2) and Binod Singh (PW-6) were sitting at the 'darwaja'. She has stated that there is a road after her house- darwaja and on the other side of the road is the 'bathan'. PW-3 has stated that no injury was caused on the body of Ram Babu Singh.
31. Again from the evidence of PW-2 it appears that the occurrence took place for 3-4 minutes at the cow bathan, PW-3 was inside her house and only after hearing hulla, she came outside her house. She does not claim to have seen arrival of the accused persons armed with weapon at the bathan. The defence invited attention of PW-3 towards her previous statement before the I.O. in which she had not stated that on hearing shouts from the Bathan she had gone there and saw the occurrence. She had not stated that Arjun Singh, Pankaj Singh, Amit Singh and Rajo Singh had caught hold of Pramod Singh. PW-3 denied to have made such statements but I.O. (PW-8) has stated that no witness told him that occurrence took place at the bathan. This court, therefore, finds that defence is able to take vital contradiction from the I.O. as regards claim of PW-3 that she had seen the occurrence at the bathan. It was a winter night Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 27/49 and darkness had already prevailed, therefore, her testimony claiming herself an eyewitness to the occurrence becomes doubtful.
32. Khushboo Kumari (PW-5) has stated that the accused persons came at the 'darwaja' of the 'bathan' where the occurrence took place and the informant (PW-6) has stated in his examination-in-chief that at the time of occurrence, he was sitting at the 'darwaja' of his 'bathan'. He had also changed the place of occurrence from that of his fardbeyan. In this background of the deposition of the prosecution witnesses, when the evidence of the I.O. (PW-8) is examined, it is found that when the I.O. reached the village on 13.01.2017 at 02:00 AM, hundreds of persons were present and according to the I.O., all told him that the 'darwaja' of the informant is the place of occurrence. The I.O. has stated that the witnesses had told about the 'darwaja' and 'bathan' also as the place of occurrence, therefore, he had inspected the 'bathan', he had not found any incriminating material at the 'bathan' which could have been seized. Thus, it appears from the deposition of the I.O. that the 'darwaja' and 'bathan' are two different places. There is a road in between house 'darwaja' and the 'bathan'.
33. This Court has noticed that some of the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 28/49 prosecution witnesses have stated that from the injuries suffered by the deceased, blood had also fallen on the earth but the I.O. (PW-8) had not found any blood and had not found any sign of quarrel or assault. He had not inspected the 'darwaja' of the house. Upon a careful scrutiny of the evidence of the prosecution witnesses, this Court finds that the 'darwaja' of the house and the 'darwaja' of the bathan are two different places. The informant has stated initially in his fardbeyan that the place of occurrence is the 'darwaja' of his house where the occurrence took place at 07:00 PM but in course of his deposition, he has shifted the place of occurrence as 'darwaja' of his 'bathan'. PW- 3 who is wife of the informant has clearly stated that in between her house and the 'bathan', there is a road and the 'bathan' is at the other side of the road. PW-2 has stated that he was sitting at the 'bathan' with his brother who is the informant and the deceased when the occurrence took place. The I.O. has stated that the witnesses told him about the place of occurrence as 'darwaja' of the house and also the 'bathan' but he had not inspected the 'darwaja' of the house, at the 'bathan', he did not find any sign of occurrence or incriminating material which could have been seized. We are, therefore, of the opinion that the prosecution evidence as regards the place of occurrence Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 29/49 materially differs with the one which was disclosed by the informant in his fardebyan and in course of trial, the prosecution has failed to establish the place of occurrence beyond all reasonable doubts.
34. One of the submissions advanced on behalf of the appellants is that in this case the fardbeyan of PW-6 was recorded by the ASI Barkat Ali of Tajpur Police Station. Prior to that, the I.O. (PW-8) has received information that one person has been injured by knife in Madhopur Digharuwa and on receiving the said information, he had lodged a sanha. The fardbeyan was recorded on 12.01.2017 at 20:15 hours. The I.O. (PW-8) was also present there when the fardbeyan was recorded and he returned to the Police Station with the fardbeyan. Despite his having the copy of the fardbeyan with him, he had not lodged the First Information Report. He had visited the house of the informant in the night itself on 13.01.2017 at 2:00 AM (night hours) and claims to have recorded the statement of the family members of the informant at the said place. This Court finds that the I.O. (PW-8) has not come out with any statement as to what prevented him from lodging the First Information Report on 12.01.2017 itself after he returned to the police station. This Court finds that the inquest report (Exhibit '8') was Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 30/49 prepared on 12.01.2017 at 20:15 hours and the dead body was sent for postmortem but neither the inquest report nor the postmortem report bears the case number. The Doctor (PW-7), who has proved the postmortem report as Exhibit '5', found that the time since death was within 36 hours, whereas according to the prosecution, the occurrence had taken place on 12.01.2017 at 7:00 PM, therefore, the postmortem was done within four hours only. We find that the Doctor (PW-7) has admitted in his cross-examination that in the postmortem report, he had not mentioned below his signature the date and time of preparation, even as there is a column for mentioning the date. On going through the evidence of the I.O. (PW-8), it would appear that on the point of registration of the FIR and his writing of the case diary, there are material discrepancies. In paragraph '5' of his cross-examination, PW-8 has stated that ASI Barkat Ali had made available to him the fardbeyan on 12.01.2017, on that basis, he had registered the case. In paragraph '6' of his cross- examination, when he was asked about the date on which he had forwarded the FIR/fardbeyan to the Court, he has stated that he had not mentioned in the case diary as to on which date he had forwarded the FIR. In paragraph '7', he has stated that he had started writing the case diary on 12.01.2017 at 20:15 hours in Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 31/49 Samastipur Sadar Hospital but when his attention was drawn towards the first page of the case diary, he admitted that in the printed part on the first page, he had mentioned FIR No. 6 of 2017 dated 13.01.2017. It is, therefore, evident from this deposition of the I.O. (PW-8) that he was making a false statement that he had started writing the case diary on 12.01.2017 itself in the hospital at 20:15 hours.
35. In paragraph '9' of his deposition, PW-8 has stated that in his presence, Nagender Kumar Singh, Sub-Inspector, Town Police Station had prepared the inquest report but on whose instruction he had done it, is not mentioned in the case diary. The I.O. has admitted that he had not signed either on the fardbeyan or on the inquest report. In paragraph '10' of his cross-examination, the I.O. has stated that he had recorded the restatement of informant-Binod Kumar Singh (PW-6) in the Sadar Hospital but he had not mentioned the time in the case diary. He has further stated that at the time of recording of his restatement, no other member of the family of the informant was in front of him, therefore, he had not taken statement of any of them. He had started for police station from Sadar Hospital at 11:00 PM on 12.01.2017 and by that time, the postmortem of the deceased had already been conducted.
Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 32/49
36. At this stage, this Court finds that the evidence of the I.O. (PW-8) is not trustworthy. It appears that he had not visited the Sadar Hospital, Samastipur otherwise, there was no reason for ASI Barkat Ali and ASI Nagendra Kumar Singh from Town Police Station to record the fardbeyan of the informant (PW-6) and to prepare the inquest report of the deceased respectively. Both of them have not been examined by the prosecution which has definitely caused prejudice to the defence. PW-8, on the one hand, did not register the FIR in the night of 12.01.2017 when he returned to the police station after leaving the hospital at 11:00 PM and even before registration of the FIR, he claims to have recorded the restatement of the informant in the hospital itself. According to the informant, the deceased was taken to the hospital by a car which was being driven by son of Lakshman Chowkidar and apart from him, his wife Munni Devi (PW-3) and one Prem Lata (not examined) were accompanying the deceased to the hospital. Therefore, the statement of the I.O. (PW-8) that when he was recording the restatement of the informant (PW-6) in the Sadar Hospital, no other member of the family of the informant was in front of him would create a doubt on the authenticity of the statement. Either PW-6 or PW-8 has made a false statement as to the presence of Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 33/49 PW-3 in the hospital. The I.O. has stated in paragraph '11' of his deposition that when he reached the house of the informant on 13.01.2017 at 2:00 am (night hour), hundreds of villagers were present there but in course of his investigation, he had not recorded the statement of any of the co-villagers except the family members of the informant. It is not his stand that no one from the village became ready to say about the occurrence. This conduct of the I.O. is blameworthy. He has stated that when he reached the house of the informant, the dead body was there, however, he had not inspected the dead body and he had not prepared najri naksha of the place of occurrence. To this Court, it is evident that the I.O. had not visited the Sadar Hospital, Samastipur on 12.01.2017 in the night and even as he received the fardbeyan on 12.01.2017 from ASI Barkat Ali and had visited the village in the night hours at about 2:00 am, he did not lodge FIR for a long time till next day at 9.30 AM. Further, he has admitted in his cross-examination that he did not mention the date on which the FIR was sent to the court. This Court would, therefore, conclude that delay in lodging of the First Information Report and sending the same to the jurisdictional Magistrate on the next day, non-examination of ASI Barkat Ali and ASI Nagendra Kumar Singh, who had recorded the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 34/49 fardbeyan and prepared the inquest report respectively and the untrustworthy evidence of the I.O. as regards his presence in the Sadar Hospital and recording of restatement of the informant there, would together create huge doubt over the authenticity of the recording of fardbeyan and registration of the FIR with the true version of the prosecution. The I.O. has not even brought on record the 'sanha' which he had recorded on hearing the rumour. All these circumstances would prove fatal to the prosecution case.
37. This Court further finds that the genesis of the occurrence is said to be a quarrel which had taken place on 12.01.2017 at 2:00 PM (afternoon) between Babloo Kumar Singh and Girja Devi (mother of the deceased). The prosecution case is that Girja Devi had given a sum of Rs. 500/- to Babloo Kumar Singh which she had demanded that day whereupon Babloo had started arguing and abusing her and had threatened her to face the consequences in the evening. There is no eyewitness to this occurrence. Munni Devi (PW-3), who is the wife of the informant and a member of the family who is likely to be present inside the house with her mother-in-law, has not even whispered about this occurrence in her examination-in- chief. The I.O. did not examine Girja Devi who was the most Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 35/49 important witness and in fact the solitary witness on this point. Even the wife of the deceased has not been examined on behalf of the prosecution. This Court, therefore, finds that the prosecution has failed to prove the genesis of occurrence in this case.
38. This Court finds that all these appellants have been convicted under Sections 147, 148, 323, 302/149 and 120B IPC. Section 149 IPC reads as under:-
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.
If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
39. Learned counsel for the appellants has though referred a number of judgments on this point, however, this Court would mention some relevant paragraphs from the case of Naresh @ Nehru (supra) (paragraph 24 to 28) those paragraphs are being extracted hereunder for a ready reference:-
"24. This Court in Roy Fernandes v. State of Goa4 has held : (SCC pp. 228-29, paras 18-23) "18. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC?
4. (2012) 3 SCC 221 : (2012) 2 SCC (Cri) 111 Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 36/49
19. Section 149 IPC reads:
'149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.' A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly 'knew that the same is likely to be committed in prosecution of the common object of the assembly'.
20. As noticed above, the commission of the offence of murder of Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 IPC, which may to the extent the same is relevant for the present be extracted at this stage:
'141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is--
First.-- * * *
Second.-- * * *
Third.--To commit any mischief or criminal trespass, or other offence;'
21. From the evidence on record, we are inclined to Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 37/49 hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point.
22. What then remains to be considered is : whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up the fence? The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji v. State of U.P.5 in the following words : (SCC p. 441, para 8) '8. ... Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.'
23. The Court elaborated the above proposition in Dharam Pal v. State of U.P. [Dharam Pal v. State of U.P.,6 as : (SCC p. 603, para 11) '11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7-6-1967, shows pre-planning. Some of the assailants had sharp-edged weapons. They were obviously lying in wait for the buggi to arrive.
5. (1989) 1 SCC 437 : 1989 SCC (Cri) 211
6. (1975) 2 SCC 596 : 1975 SCC (Cri) 704 Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 38/49 They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre-concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34 IPC also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable doubt, which makes such a principle applicable. (See Yeshwant v. State of Maharashtra7 and Sukh Ram v. State of U.P.8. The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible, or invariable rule applicable for arriving at what is really an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated.' "
25. In the instant case by the impugned order, the High Court has held that every member had inhibited the common intention to accomplish the unlawful object. The facts on hand would disclose that the motive alleged was a quarrel that ensued between Ravi and Nabbu with Ajay and Suraj on the day of Dulhandi and Ravi is said to have threatened to kill Ajay. This factor would clearly disclose that the appellants herein were not involved in the fight that occurred on the day of Dulhandi and as such no motive could be attributed to the appellants. The prosecution had failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly.
7. (1972) 3 SCC 639 : 1972 SCC (Cri) 684
8. (1974) 3 SCC 656 : 1974 SCC (Cri) 186 Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 39/49
26. To convict a person under Section 149 IPC the prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it had to prove that they were aware of the offences likely to be committed to achieve the said common object. Both these ingredients are conspicuously absent and there is no evidence to connect the petitioners with the deceased or the co-accused. Undisputedly, no overt act has been attributed to the appellants, and in unequivocal terms PW 9 admits in his cross-examination that none of the accused except Pawan had caused injury to the deceased and there was only a single shot fired from the pistol.
27. Hence, we are of the considered view that the prosecution had failed to prove the guilt of the appellants herein beyond reasonable doubt, and non- consideration of the lacuna in the prosecution case in proper perspective by the trial court and the High Court as analysed hereinabove has resulted in miscarriage in the administration of justice, namely, conviction of the appellants which cannot be sustained.
28. Resultantly, the appeals are allowed and the judgment passed by the Sessions Court in SC No. 21 of 2016 dated 9-5-2017 as affirmed by the High Court of Punjab and Haryana at Chandigarh in CRA-D Nos. 1063 of 2017, 997 of 2017 and 1043 of 2017 are hereby set aside and consequently the appellants are acquitted of the offences alleged and are ordered to be released forthwith if not required in any other case."
40. In the case of Amerika Rai (supra) (paragraph 13 and 14), the Hon'ble Supreme Court has observed has under:-
"13.The law of vicarious liability under Section 149 IPC is crystal clear that even the presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly. In that light, when the evidence is examined, it is obvious that Amerika Rai (A-1) who was the elder in the family and father of Darbesh Rai (A-2), Mithilesh Rai (A-4) and Chulhan Rai (A-3), instead of acting in a responsible manner and Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 40/49 preventing any unpleasant incident, exhorted the accused persons to bring the gun. The guns are normally not brought for making a show. The exhortation to bring the gun definitely speaks about the guilty mind of Amerika Rai (A-1), so also the use of guns by Mithilesh Rai (A-4), Sanjay Rai (A-5) and Sipahi Rai (A-6) is very clear that they also had guilty mind. Mithilesh Rai (A-4) went to the extent of injuring Dineshwar Rai (PW
7). Therefore, even their presence and part played by them was obviously pointing towards the common object of committing murder of Shankar Rai.
Unfortunately, Shankar Rai became the victim of the circumstances. The accused persons had nothing to do with Shankar Rai. Their main ire was directed at Ram Babu (PW 6). But, perhaps because Shankar Rai took side of Ram Babu (PW 6), he became the victim of circumstances and had to pay with his own life. Therefore, at least insofar as these persons are concerned, their presence and their active participation would make them guilty under Section 149 IPC, though the author of the injury to Shankar Rai was Chulhan Rai (A-3) whose appeal has already been dismissed.
14. However, that cannot be said about Darbesh Rai (A-
2). He had been given the role of standing at the door of his house with a lathi. We feel that the evidence of the eyewitnesses that he was instigating the other accused persons to fire, appears to be an exaggeration. He would not have kept on standing there holding a lathi had he shared the intention and the common object of committing murder of Shankar Rai. In our opinion, the role of Darbesh Rai (A-2), as attributed to by the eyewitnesses, should not make him vicariously liable. We, therefore, grant benefit of doubt to Darbesh Rai (A-
2) and acquit him."
41. In the case of Lalji and Ors. (supra) (paragraph
14), the observations of the Hon'ble Supreme Court are as under:-
"14. It has not been denied that the names of Milkhi and Bhagwati were mentioned in the FIR (Ext. Ka-1). PW 2 Manju, son of Girdhari, whose presence at the place of occurrence has not been challenged, mentioned Milkhi Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 41/49 and Bhagwati among the accused persons with their relationship. He categorically stated that the two, amongst others, were present at his house beating his father and uncle and chasing him and Ram Avtar. Milkhi according to him had a spear in his hand. Manju denied the suggestion that Milkhi and Bhagwati were standing there on the side of the witnesses. PW 3 Smt Ram Devi clearly corroborated Milkhi's participation. PW 1 Babu Ram while giving vivid description of the occurrence stated that Milkhi was there in the assembly with spear and Bhagwati with a lathi and that all the persons present beat Girdhari and Siddhu. Milkhi also assisted in carrying Minister Lal after he was shot. In reply to the question who beat Manju he clearly stated that Mansa and Bhagwati beat him with lathi when he was entering the house. DW 2 Lalji stated that at the time of the occurrence Puran, Bhagwati, Kripal etc. had also come. In the FIR (Ext. Ka-19/C.1) lodged by Lalji on the same occurrence presence of Milkhi and Bhagwati was admitted by him. The submission that they were mere spectators could not be believed."
42. Keeping in mind the aforementioned case laws on the subject, when this Court examines the evidences available on the record, it is noticed that as per the fardbeyan of the informant (PW-6) at the time of first occurrence on 12.01.2017 at about 2:00 PM, it was only Babloo Kumar Singh who had come at the house of the informant and had a quarrel with the mother of the informant. None of these appellants were accompanying Babloo Kumar Singh. Further, at the time of second occurrence at 7:00 PM, altogether eleven named accused persons had allegedly formed an unlawful assembly and came at the house of the informant. In the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 42/49 fardbeyan, PW-6 has stated that all were armed with weapons. He has not clearly stated in his fardbeyan as to what kind of weapons were there in the hand of the accused persons, in course of his deposition in trial, he has not stated in his examination-in-chief that all the eleven accused persons were armed with weapons. He has stated that Arjun Singh, Pankaj Singh, Anil Singh and Raja Singh caught hold of Pramod Singh whereas Birendra Singh, Mukesh Singh and Sushil Kumar Singh had assaulted Pramod Singh (the deceased) by knife. He has stated that when he rose to save Pramod Singh then Babloo Singh caught hold of him and started giving him hand and fist blow and was abusing him. The I.O. has stated in paragraph '14' of his deposition that the story of going to save the deceased by brothers was not stated during investigation. Regarding the role of Ajay Singh and Ranjay Singh, who are the appellants in Criminal Appeal (DB) No. 1508 of 2017, the informant has stated that when he rose to save, he was caught hold of by the appellants and one Kameshwar Singh and they while abusing his brother, assaulted him. This Court has already discussed hereinabove the evidence of the prosecution witnesses from which it appeared that neither the informant nor the elder brother of Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 43/49 the informant had received any injury. They had not even gone to Primary Health Centre for first aid. So far as these three appellants are concerned, they were not assaulting the deceased. To bring home the charge under Section 302/149 IPC, the prosecution was required to prove that the accused persons were sharing common object and/or they had knowledge that the crime may be committed. To this Court, it appears that the prosecution has not led any evidences that the appellants were having knowledge that some of the accused were carrying knife. It cannot be held that the appellants were sharing common object of killing Pramod Singh. The informant has not deposed that these appellants were armed with any weapon and the allegation of their being armed with weapon in the fardbeyan of the informant is apparently not proved in course of trial. In these circumstances, it would not be safe to convict these appellants for the murder of Pramod Singh with the aid of Section 149 IPC.
43. This Court has held earlier that very presence of PW-1, PW-3 and PW-5 at the place of occurrence is doubtful. Now regarding presence of PW-2 and PW-6, this Court finds that they have changed the place of occurrence in course of trial. PW-6 has stated that Ajay Kumar Singh, Ranjay Singh Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 44/49 and Kameshwar Singh had been assaulting his elder brother (PW-2). PW-2 claimed that when his brother (PW-6) moved to save his brother then he was slammed down on the earth by Babloo Kumar Singh and was assaulted. Both PW-2 and PW- 6 did not suffer any injury on their person, they did not visit any doctor and the prosecution witnesses have stated that neither PW-2 nor PW-6 had got any hurt. This claim of PW-2 and PW-6 that they were assaulted by some of the accused becomes doubtful and this would go to the extent of doubting their presence at the place of occurrence at the given time of occurrence.
44. At this stage, this Court finds that the defence has consistently taken a stand that Pramod Singh was killed by unknown criminals and these appellants have been falsely implicated with an intention to grab their homestead land. The defence suggested that the appellants had not gone at the bathan of PW-2 and PW-6 on the date of occurrence even once and they had nothing to do with the occurrence.
From the evidence of PW-6 it is found that the deceased had contested election of Sarpanch and won the election. He had remained Sarpanch for one term. The accused persons of this case had supported him in the election. No prior enmity Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 45/49 between the parties has been shown by the prosecution. To this Court, it appears that a petty quarrel between the mother of the deceased and Babloo Kumar Singh over return of Rs.500/- could not have led eleven accused persons to hatch a conspiracy, form an unlawful assembly and commit murder of Pramod Kumar Singh in such a brutal manner.
PW-6 has stated that he cannot say who had not voted for the deceased in the election of Sarpanch. Deceased was going to court from village was known to all the people in the neighbourhood. On the date of occurrence after returning from court all the three brothers were sitting at the bathan. What looks unusual in the statement of PW-6 that Pramod had not changed the clothes in which he had returned from court. PW-6 has stated that the deceased brother was wearing shoes with shocks, phulpant of black colour, kothari sandow ganji, white shirt and red colour sweater. He was also wearing a jacket of green colour. He has stated that occurrence took place at 7.00 PM and before 7.30 PM he was taken to hospital. So, to this Court, it looks highly doubtful that after return from court deceased would not change his dress and will be sitting at this bathan in formal dress with shoes and further if the occurrence took place in the village at 7.00 PM, Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 46/49 before 7.30 PM he could have been taken to hospital at Samastipur which is at a distance of 19 KM.
D.W.-1 has stated that deceased was also engaged in the business of sale and purchase of land. He heard in the night at 1.30-2.00 AM that dead body of Pramod had arrived in the village. DW-2 is the neighbour of the deceased. He belonged to the same caste. He was sleeping in his house on 12.01.2017 at 8.00 PM. At 12.00-1.00 AM he heard voice of some people and got awaken and went to the Darwaza of Pramod Singh where he came to know that dead body of Pramod was brought from Samastipur. His family members did not disclose as to how Pramod died. He has stated that accused persons were falsely implicated. This witness denied the suggestion that accused persons and he were from same ancestors. DW-3 has deposed on the line of DW-2. He seems to be an independent person from Mathurapur tola of the village.
From the deposition of DW-1, DW-2 and DW-3 it appears that they had gone to the Darwaza of the deceased in between 12.00-2.00 AM when dead body had arrived from Samastipur. They were not aware of any occurrence as alleged in the village at 7.00 PM and they were not told as to how Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 47/49 Pramod Singh died.
This Court, therefore, finds that the stand of the defence that Pramod Singh was killed by unknown criminals cannot be ruled out.
45. One of the submissions made on behalf of the appellants is that in the course of their statement under Section 313 CrPC, not a single circumstance as to the genesis of the occurrence was put to the accused. On perusal of the statements of the accused recorded under Section 313 CrPC, it appears that these appellants were asked same and one question. We reproduce one of the statements hereunder for a ready reference:-
"iz"u & D;k vkius lkf{k;ksa dk C;ku lquk gS \ mŸkj & th gkWA iz"u & vfHk;kstu lkf{k;ksa dk dguk gS fd fnukad 12-01-2017 dks djhc 07%00 cts la/;k esa uktk;t etek cukdj g[ks gfFk;kj ls yS"k gksdj ,d jk; o ,d er gksdj lqpd ds cFkku okys njokts ij izeksn flag dh gR;k djus dh fu;r ls x;sa Fks] D;k dguk gS \ mŸkj & th ughaA iz"u & lkf{k;ksa dk ;g Hkh dguk gS fd mlh le; mlh txg ij tku ekjus dh fu;r ls vfHk;qDr fojsUnz flag mQZ eksgoh;k lq"khy flag ,oa eqds"k flag us Nqjk ls izeksn flag ij geyk dj t[eh dj fn;k ftl t[e ls izeksn flag dh e`R;q gks xbZA vkSj tc izeksn flag dks cpkus mudk HkkbZ jke ckcw flag x;s rks jke ckcw flag dks vki yksxksa us tdM+dj idM+ fy;k rFkk xkyh xykSt djrs gq, iVd dj yIij FkIij QSV eqDdk ls ekjihV fd;kA bl ij vkidks D;k dguk gS \ mŸkj & th ugha iz"u & lQkbZ esa vkidks D;k dguk gSA mŸkj & funksZ'k gw¡A lQkbZ lk{; nw¡xkA"
46. From the recorded statement of the accused persons it would appear that there is no whisper of the Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 48/49 evidence, if any, on the point of genesis of the occurrence. Ajay Singh, against whom it is stated that he was one amongst the three accused who had caught hold of the deceased, was not informed about the evidences against him on this point. The prosecution case as per fardbeyan is that it was Babloo Kumar Singh who had caught hold of the informant and was abusing and assaulting him whereas Ajay Kumar Singh and Ranjay Singh along with Kameshwar Singh had caught hold of Ram Babu Singh (PW-2) and they were assaulting him. None of the accused persons were informed of any material, if any, brought by the prosecution on the point that the appellants were member of unlawful assembly and the said assembly had common object. of their common intention to murder Pramod Singh. No material has been brought to the notice of the accused persons as regards the allegation of conspiracy. Under these circumstances, this Court would further take a view that the prosecution failed to bring to the notice of the accused persons the circumstances as to genesis of the occurrence and the evidences, if any, brought by the prosecution on this point. Similarly, the evidences on the point of common object and conspiracy on the part of the appellants were not brought to their notice. This would prove fatal to the prosecution.
Patna High Court CR. APP (DB) No.1508 of 2017 dt.03-10-2024 49/49
47. In the light of the discussions made hereinabove, this Court would come to a conclusion that the prosecution is not able to prove the guilt of the appellants beyond all reasonable doubts. The appellants deserve their acquittal, giving them benefit of doubt.
48. The impugned judgment and order as regards the appellants are hereby set aside. The appellants are on bail. They and their sureties are discharged from the liability of bail bonds.
49. These appeals are allowed.
(Rajeev Ranjan Prasad, J) (Shailendra Singh, J) arvind/Rishi-
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