Jharkhand High Court
Panchal Oraon vs The State Of Jharkhand on 17 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.463 of 2002
(Against the Judgment of conviction dated 15.05.2002 and Order of
sentence dated 16.05.2002, passed by learned Additional Sessions
Judge, Gumla, in Sessions Trial No.92 of 1997)
....
Panchal Oraon, son of Budhram Oraon, resident of village
Atakora, Police Station-Bharno, District-Gumla.
... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.327 of 2002
....
1. Bargi Oraon, son of Birsa Oraon
2. Budhram Oraon son of Bahura Oraon
3. Paltu Tana Bhagat, son of Goya Oraon
All are residents of village Atakora, Police Station-Bharno,
District-Gumla. ... ... Appellants
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.367 of 2002
....
Anugarha Lakra @ Sunil Bara, son of Sri Balasius Lakra,
resident of village Ata Kora, Police Station-Bharno, District-
Gumla. ... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.370 of 2002
....
1. Bandhanu Bhagat son of Birsa Bhagat
2. Bhola Oraon son of Mangra Oraon
3. Gobra Oraon son of Charwa Oraon
4. Budhwa Oraon, son of Kaija Bhagat
All are residents of village Atakora, Police Station-Bharno,
District-Gumla. ... ... Appellants
-Versus-
The State of Jharkhand ... ... Respondent
.....
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Appellants : Mr. Chandan Kumar, Advocate
[in Cr.A.463/02, 327/02 & 370/02]
: Mr. Ram Pravesh Singh, Advocate
[in Cr.A.367/02]
For the State : Mrs. Nehala Sharmin, Spl.P.P.
[in Cr.A.463/02, 327/02 & 370/02
: Mrs. Vandana Bharti, Spl. P.P.
[in Cr.A.367/02]
1
....
Order No: 06/Dated: 17.01.2025
Per Sujit Narayan Prasad, J.
Cr. Appeal No.327 of 2002
1. In the reference of Criminal Appeal DB No.327 of 2002, learned counsel appearing for the appellants submits that the appellants namely Bargi Oraon, Budhram Oraon and Paltu Tana Bhagat have died and he has got no instruction to pursue their appeals through their legal representative. Therefore, he has prayed for abatement of present appeal.
2. Such submission has been made in presence of learned State counsel.
3. Considering the submission made by Mr. Chandan Kumar, learned counsel appearing for the appellants on record the instant appeal being Cr. Appeal No.327 of 2002 is hereby abated and stands disposed of.
Cr. Appeal No.370 of 2002
4. Mr. Chandan Kumar, learned counsel appearing for the appellants has submitted that the he has got information that Appellant No.4 namely Budhwa Oraon has died and he got no instruction to pursue the appeal through his legal representative. Therefore, he has submitted for abatement of present appeal against the Appellant No.4.
5. Such submission has been made in presence of learned State counsel.
6. Considering the submission made by Mr. Chandan 2 Kumar, learned counsel on record, the instant appeal against the Appellant No.4 namely Budhwa Oraon stands abated.
7. All these appeals excluding the Criminal Appeal (DB) No.327 of 2002 which has been abated are against the judgment of conviction dated 15.05.2002 and order of sentence dated 16.05.2002, passed by learned Additional Sessions Judge, Gumla, whereby and where under the appellants have been convicted under Sections 307, 149 and 302/34 of Indian Penal Code and directed to go rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and further, rigorous imprisonment for seven (7) years under Section 307/149 of Indian Penal code. Both the sentences have been directed to run concurrently.
8. Since these appeals arise out of the common judgment of conviction and order of sentence, as such with the consent of learned counsel for the parties, they are taken up together and are being disposed of by this common order. Factual Matrix
9. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as :-
10. According to the fardbeyan of the informant the case 3 of the prosecution is that on 12.8.1996 on Monday the informant along with his wife and son were in his field on Doradhar in Atamera Chhina toli. At about 1P.M. his cousin brother Charwa Oraon(deceased) and Bablu Oraon were going to Lohardaga by Motor cycle No. BHU-1019 and near about Purva river, 40-50 persons having armed with Bhujali, Tangi, and lathies, surrounded them but Charwa Oraon and Bablu escaped from there and came to AtaKora Chhina toli.
11. The following persons were armed with deadly weapons in their hands. Accused Panchal Oraon armed with Bhujali, Bhola Oraon lathi, Bandhnu Oraon lathi, Bandhana Oraon Tangi, Suni having Tangi, and all are resident of Atakora and accused Paltu Oraon having lathi and Govind Singh having Tangi and other 30-40 persons surrounded them and began to assault them by Bhujali, Tangi and lathi due to which Charwa Oraon died on the spot. When informant's wife and son went in rescue of them, accused Budhram assaulted them with lathi, Bablu was also lying injured. Anyhow he, his wife and his son escaped from there.
12. Charwa Oraon had been assaulted by Pancham Oraon with Bhujali and Budhram Oraon had given lathi blow and Bandhan Oraon had given tangi blow, and all of them killed him. Govind Singh had also given tangi blow, Bablu Oraon was assaulted by Ram Oraon and Panchal Oraon with lathi and after assaulting them the accused persons ran away 4 due to the fear, no one went to the police station. Thereafter, he and Babloo were carried by Baso and Jatru Oraon to their house.
13. It is alleged that the genesis of occurrence was land dispute of 32 acres between Panchal Oraon and informant's Sister-in-law Most. Birso Orain.
14. On the basis of the Fardbeyan of the informant namely Bhade Oraon, FIR being Bharno P.S. Case No.117 of 1996 was registered under Sections 147,148,149,341,324,323,302 of the Indian Penal Code against the accused persons and after due investigation chargesheet was submitted against the appellants.
15. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 149, 307, 302/34 I.P.C. for committing murder of one Charwa Oraon were framed against the appellants/accused to which the accused pleaded not guilty and claimed to be tried.
16. The prosecution has altogether examined 09 prosecution witnesses namely, P.W.1 Jagni Oraon (wife of informant), PW-2 Shri Vishwanath Singh (oraon) son of the informant, PW-3 Bhade Oraon (informant), PW-4 Dr. T.J. Minz, who had conducted post-mortem of the deceased, PW-5 Beriya Oraon (seizure list witness), PW-6 Bablu Oraon, PW-7 Saryu Pandit, Investigating officer of the case, PW-8 Dr. Kanha Prasad Lal, who had examined injured witnesses and injured 5 accused Panchal Oraon, PW-9 Pradeep Singh who is the Formal Witness and had proved the case diary.
17. The Defence has not examined a single witness in support of their case.
18. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, found the charges levelled against the appellants proved beyond all reasonable doubts. Accordingly, the appellants had been found guilty and convicted for the offence punishable under Section307,149,302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/149 of the Indian Penal Code and further, they have also been directed to undergo Rigorous imprisonment for 7 years for the offence under Section 307/149 of the IPC.
19. The aforesaid order of conviction and sentence is subject matter of instant appeals.
Submission of the learned counsel for the appellants:
20. Learned counsel appearing for the appellant in Criminal Appeal No.463 of 2002 and Criminal Appeal DB No.367 of 2002 has taken the following grounds in assailing the impugned judgment: -
(i) It is a case where the prosecution has miserably failed to establish the charge said to be proved beyond all 6 reasonable doubt. The reason for such argument is testimony of PW-1, PW-2, PW-3 and PW-6.
(ii) It has been contended that the PW-1 although in the Examination-in-Chief has supported the prosecution version but, in the cross-examination, particularly, as under Para-11 thereof, she has denied to have seen that who assaulted from which weapon, since she is having eye sight problem.
(iii) The PW-2 can also not be said to be the reliable witness if his testimony will be taken into entirety wherein the omnibus and general version has been disclosed that all the appellants have assaulted the deceased. The contention has been raised that in a matter of conviction under Section 302 of the Indian Penal Code, the specific overt act is to be there and only then the prosecution will be said to establish the charge said to be proved beyond all reasonable doubt which is lacking in the present case.
The PW-2 has further deposed that there was dispute over the land property in between the deceased and the informant. Therefore, there is possibility that the appellants have falsely been implicated in the present case, so as to grab the land.
(iv) The PW-3 who is the informant of the case had given the contradictory statement and he had himself contradicted the prosecution version because at Para-6 of the cross- 7 examination he had stated that he had not seen the person who had killed the deceased Charwa Oraon.
(v) The ground has been agitated that if the prosecution version will be considered, there is no reference that the appellants, particularly the appellants of the Criminal Appeal (DB) No.463 of 2002 and Criminal Appeal (DB) No. 370 of 2002 have assaulted by giving repeated assault over the body of deceased, rather the version is that the deceased was assaulted by Bhujali by Panchal Oraon who was said to be having the said weapon in his hand.
(vi) The PW-6 has also not supported the prosecution version, since it has been deposed by him that he has not seen who had assaulted the deceased. However, he has said about 10-30 persons were behind the deceased. He has deposed that he, after getting injury in his head, has fell down and become senseless and, as such, he had not seen who has assaulted by which weapon.
(vii) The Investigating Officer has conducted the investigation but there is no seizure of the bloodstained earth and therefore the same has not been sent to the FSL.
(viii) The learned counsel, particularly, representing the appellants in Criminal Appeal (DB) No.463 of 2002 and 370 of 2002, so far as it relates to Panchal Oraon and Bandhanu Bhagat are concerned, they have not 8 assaulted and merely on the basis of the aid of Section 149 of the Indian Penal Code showing no complicity of common object. The conviction is based even though the said injury is not fully corroborated by the Doctor who has conducted the post-mortem of the body of the deceased.
21. Mr. Ram Pravesh Singh, learned counsel representing the appellant in Criminal Appeal 367 of 2002, has submitted that none of the witnesses have disclosed the name of the present appellant Anugarha Lakra @ Sunil Bara.
22. He, however, in addition to the aforesaid argument, has adopted the other argument which has been in advance by the learned counsel represented the appellant in Criminal Appeal No.463 of 2002 and rest of the appellants in Criminal Appellant No 370 of 2002 giving apart the from Bandhanu Bhagat.
23. Learned counsel appearing for the appellant, based upon the aforesaid ground, has submitted that it is a case therefore wherein the prosecution has reasonably failed to establish the charge said to be proved beyond all reasonable doubt and hence, the impugned judgment needs interference since the learned Trial Court has not taken into consideration the Testimony of the witness in right prospective and merely on the basis of the deposition as recorded in the examination- in-chief, the order of conviction was passed. 9
24. The learned counsel for the appellants, based upon the aforesaid ground, has submitted that the trial court has not taken in to consideration of the aforesaid facts as such impugned judgment requires interference, hence not sustainable in the eyes of law Submission of the learned counsels for the State:
25. Mrs. Nehala Sharmin and Mrs. Vandana Bharti, learned counsel appearing for the State, have jointly submitted by defending the impugned judgment that it is incorrect on the part of the appellants to take the ground that the prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt. Such submission has been made on the ground by making reference of the testimony of PW-1, PW-2, PW-3 and PW-6 supported by the Doctor who has been examined as PW-4.
26. It has been contended by making reference of the testimony of PW-1, PW-2, PW-3 and PW-6 who have fully supported the prosecution version if their testimony will be taken into consideration as recorded in the Examination-in- Chief.
27. The submission has been made that the testimony of the witnesses i.e. PW-1, PW-2, PW-3 and PW-6 has fully been corroborated by the testimony of the Doctor who has been examined as PW-4 who has found series of incised injury and that is the prosecution version since right from the inception, 10 the case of the prosecution is that the deceased was being followed by 20- 30 persons and everybody since had assaulted therefore repeated injury incised in nature has been found to be there as per the Medical Report having been found at the time of post mortem of the dead body of the deceased.
28. Learned counsels appearing for the State, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeals are fit to be dismissed.
Analysis
29. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.
30. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits.
31. Learned trial court, based upon the testimonies of witnesses, has passed the judgment of conviction convicting the appellants under Sections 307, 149, 302/34 of Indian Penal Code and sentenced them to undergo rigorous imprisonment for life for the offence under Section 302 of the IPC.
32. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
11
33. P.W.1 namely Jagni Orain is wife of the informant and she was also working, near the place of occurrence. She has stated that Charwa Oraon (deceased) was her Dever (brother- in-law). She had testified that her husband her son Bishwanath Oraon and Bijay Oraon were also working there in the meantime Charwa Oraon and Bablu Oraon were running towards her and all the accused persons were chasing them with deadly weapons.
34. She had further stated that the accused Panchal Oraon and other accused persons assaulted Charwa Oraon with Bhujali, Tangi and Lathi shaft and when her sons Bishwanath, Binay and her husband went to save him, they were also badly assaulted by the accused persons. As a result, her husband fell down there. She has further stated that there was land dispute between Charwa Oraon and Birso Orain. Charwa died at the spot. She, had also identified all the accused persons in the dock. Deceased Charwa was in the defence service and on the date of occurrence he had come to his village after taking leave.
She had also stated in her cross-examination that the accused Panchal Oraon and Budhram Oraon did not want to part with the share to the deceased Charwa Oraon. She has also stated that when Charwa was fleeing away he was shouting "Bhabhi accused persons are chasing for killing me". At para-11 she had stated that her eyes were not efficient to 12 see the occurrence and she has not seen the occurrence properly. Further at para-13 she has stated that for the first time she has given statement in the court and prior to those police did not enquire from her.
35. P.W.2 is the son of the informant and he was present at the place of occurrence at the time of occurrence. He had stated that while he was working in his field with his father and mother in the meantime Charwa Oraon and Bablu Oraon were fleeing away crying for help as 20-30 persons were chasing them with deadly weapon. He had stated that the accused Panchal Oraon assaulted Charwa with Bhujali. Other accused persons had also assaulted him. Charwa died at the spot. He has stated that the other accused had also assaulted him his father and his brother. He has specifically stated that the accused Panchal Oraon had assaulted Charwa Oraon with Bhujali, accused Gobra with Lathi and accused Budhram with Tangi.
At para-7 he had stated that he could not say how many blows of lathi and Baluwa and Bhujali were inflicted on the deceased and at para-9 he assigned the reason behind the occurrence as to be the land dispute with Panchal.
36. P.W.3 is the informant and is the cousin brother of the deceased Charwa Oraon. He had testified that at the time of occurrence he was working in his field. In the meantime, all the accused persons came there. His brother Charwa and 13 Bablu were fleeing for life and all the accused persons were chasing them. He has further testified that out of the accused persons Panchal had assaulted with Bhujali and other accused persons assaulted him with lathi and Tangi. He has stated that there was land dispute so it was accused Panchal who after forming unlawful assembly in the field had murdered his brother.
37. He further testified that he was also badly assaulted by the accused persons. After occurrence he was brought to his house by the villagers where his statement was recorded by the police. He identified all the accused persons in the dock.
In his cross examination he has stated that the accused persons had assaulted him first. In the meantime, all the accused persons who were resident of 2-3 village were chasing Charwa. Charwa came to him and asked for help but the informant was helpless as he was injured himself.
He has been cross-examined on behalf of the accused Anugrah Lakra wherein at para -6 he has testified that he had not seen anyone to kill Charwa.
38. P.W.4 is the Dr.T.J.Minj. On 14.8.96 he was posted in Sadar Hospital Gumla and he had conducted the Autopsy on the dead body of Charwa Oraon and had found 12 incised wounds on his person and three bruises. All the injuries were, on the vital part of the body and head. All the injuries were 14 ante-mortem and sufficient to cause death.
39. P.W.4 has stated that all the sharp cutting injuries had been caused by different weapon. Ext.1 is the P.M. report. According to the doctor injury no. 1 to 11 might be possible by Bhujali and Tangi.
40. P.W.5 is a witness on the Inquest report, (Exts. 2 and 2/1) are the signatures of the witnesses on the inquest report.
41. P.W.6 Bablu Oraon, he is one of the injured. He was accompanying the deceased on Motor-Cycle. When he reached near the place of occurrence the accused persons started chasing them. Out of fear he left the Motor Cycle there and ran towards the river. He had stated that in the meantime all the accused persons intercepted them and started assaulting them. The accused, persons assaulted Charwa who died at the spot. He did not identify any of the accused person who had assaulted him and Charwa.
42. P.W.7 is the Investigating Officer of this case. He had testified that on 13.8.96 at about 5.30 A.M. he heard a rumor that a man had been killed in village Atakora. He registered a Sanha in Bharno P.S, and left for the place of occurrence with Choukidar and other police man. At place of occurrence, he recorded the fardbeyan (Ext.3) of the informant Bhade Oraon and took up the investigation. During investigation he Investigated the place of occurrence at village Atakora namely Bargi Tanr which is a paddy field of the Informant. 15
43. In the paddy field he found the dead body of Charwa Oraon. He also found blood there on earth and paddy was damaged. He had given the boundary and description of the suit land. He prepared the Inquest report (Ext. 4) in presence of the witnesses of the dead body. He had also seized the blood-stained soil and prepared seizure list in presence of the witnesses (Ext.5) He also sent the dead body for Post-Mortem Examination. After recording the statement of the witnesses and after receipt of the Autopsy report he submitted charge sheet.
44. This witness had stated that neither he prepares the sketch/map of the occurrence nor he had sent the seized soil for opinion of scientific expert (FSL).
45. P.W.8 is another doctor Kanha Prasad Lal who had examined the injured Bablu Oraon, Bhade oraon (Informant) as well as the accused Panchal Oraon. Bablu Oraon had sustained injuries on his person including shoulder and hand. The doctor had also found four injuries on the person of the Informant Bhade Oraon all the injuries were on the shoulder, hand and head.
46. It is evident from perusal of testimony P.W.1 Jagni orain wife of informant who claimed herself as an eyewitness that the 15-16 accused persons assaulted the deceased but she has not stated anything specific against these appellants whether they were armed with what type weapon or assaulted 16 the deceased. Further At para-11 she had stated that her eyes were not efficient to see the occurrence and she has not seen the occurrence properly. Further at para-13 she has stated that for the first time she has given statement in the court and prior to those police did not enquire from her.
47. So far as the evidence of P.W.2 is concerned his evidence inconsistent to the evidence of the other witnesses. This witness has stated that the accused/ appellant Budhram Oraon assaulted to the deceased with tangi whereas on this point the evidence of P.W.1 is silent and the P.W.3 has stated that the Budhram Oraon assaulted the deceased with lathi, whereas the F.I.R. disclose that the Budhram assaulted the deceased with lathi.
48. Further, according to the F.I.R. and the deposition of the witnesses several persons have assaulted the deceased despite the assault given by these appellants no specific allegation has been attributed by the witnesses.
49. Further, it is evident that the allegation of assault by lathi has been levelled against the several persons but only three Injuries have been found by the doctor (P.W.4) which is said to be caused by hard and blunt substance.
50. Further P.W.3 in his testimony had supported the entire occurrence but at the same time in the cross- examination on behalf of the accused Anugrah Lakra wherein at para -6 he has testified that he had not seen anyone to kill 17 Charwa.
51. Further, it is pertinent to mention here that the allegation of having armed with tangi has also been levelled against one Govind Singh and others in the F.I.R but the accused (Govind Singh) had been acquitted of the charges levelled against him by an order and Judgment dated 31.7.99. passed by learned Ist Additional Sessions Judge, Gumla in S.T. No. 172/1998.
52. It is evident from the impugned judgment that the learned Trial Court by making reference of the testimony of the prosecution witnesses has come to the conclusion that these witnesses has fully supported the prosecution version being fully supported by the medical evidence and hence, has found the sufficient material for conviction of the appellants under Section 149/307/302/34 of the Indian Penal Code and directed to undergo Rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and further R.I. for seven years under Section 307/149 of the Indian Penal Code.
53. The aforesaid judgment of conviction is under challenge in the present appeal on the ground as has been referred at the outset hereinabove.
54. This Court, deems fit and proper to refer the judicial pronouncements before coming to assess the legality/illegality of the impugned judgment.
55. The law is well settled that in the case of eye witness, 18 who, if supports the prosecution version, the conviction is to be there.
56. The law is equally settled that it is the duty of the prosecution to substantiate the charge said to be proved without any iota of doubt and if there is any doubt, then the benefit of such doubt is to be given to the accused person.
57. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
58. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in 19 (2017) 13 SCC 98, has held at paragraph-26 as under:-
"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
59. Further, it is the settled proposition of law that if the result of cross-examination of prosecution witnesses, accused could establish the probability of his defence and if probability was established by accused, it would really entitle him to the benefit of doubt, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Bhikam Saran Vrs. State of U.P., reported in (1953) 2 SCC 560, wherein, at paragraph-16, it has been held as under:
"16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross- examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt."20
60. Further, the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: -
"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution".
Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
61. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph-32 21 and 33 has held as under:-
"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.- --''
62. It is also equally settled that if the minor discrepancy/contradiction in the testimony of the witnesses is not worth to be considered and merely on the minor contradiction, the prosecution cannot be said to fail. However, if the case is based upon the testimony of the eyewitness, then as per the settled position of law, the testimony of such witness is trustworthy and if there is no possibility of taking two views and if such possibility is there, the view which is going in favour of the accused is to be accepted, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57.
63. The Hon'ble Apex Court, in the aforesaid judgment has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to 22 his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-
"6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. --"
64. It needs to refer herein before laying down the aforesaid view, the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as "163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"
65. This Court, having referred the judicial pronouncements in the context of the present case, is now proceeding to examine the testimony of the witnesses in order to reach to the conclusion as to whether PW-1, PW-2, PW-3 and P.W.6 who have been considered to be the eye witness by the learned Trial Court, can be said to be the eye witness warranting conviction under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code.23
66. Section 302 is of the Indian Penal Code provides the punishment in a case of commission of murder and the murder has been defined under Section 300 of the Indian Penal Code, for ready reference Section 300 of the Indian Penal Code is being referred hereunder as :-
Except in the cases hereinafter excepted, culpable homicide is murder --
1. If the act by which the death is caused is done with the intention of causing death, or
2. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or
3. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
67. The penal offence under Section 300 of the Indian Penal Code, contains the word "intention to kill" and if the intention is there irrespective of the motive, the ingredient of Section 300 of the Indian Penal Code will be attracted and the person concerned will be held guilty under Section 302 of the Indian Penal Code.
68. As per the prosecution version, the dispute over the landed property in between the informant and the deceased 24 has been referred and the same has also been substantiated by the prosecution witnesses particularly, by the PW-1, PW-2 and PW-3.
69. PW-1, PW-2 and PW-3 have been considered to be the eye witness.
70. This Court in order to access as to whether PW-1, PW- 2 and PW-3 can be considered to be the eyewitness has scrutinized their testimony minutely.
71. PW-1, although, has supported the prosecution version but her version in the Examination-in-Chief as would appear from paragraph-2 thereof that about 15 to 16 persons had followed the deceased among which she has named Panchal, Budhram, Gobra, Bergi, Bhola, Bandhanu, Budhuwa, Anu, Paltu etc. It has been deposed by her that these persons said to have killed the deceased namely Charwa.
Charwa and Bablu sustained injury. Charwa succumbed to injury and Bablu survived even after sustaining serious injuries as per the prosecution.
72. PW-1 has deposed in para-3 that after sustaining the injury at the hands of these persons, her husband fell down.
73. She had stated the fact that there was dispute over the landed property as would appear from paragraph-7. In Para-11, she has deposed that she is having the weak eyesight due to which she could not see the occurrence as to who has assaulted by which weapon by which her husband has died. 25
74. It appears from the impugned judgment that the PW-1 has been considered to be the eye witness. The basis of such consideration is her testimony as recorded in Examination-in- Chief but we have found no reference of consideration of the fact what she has deposed at para-11 about the weak eyesight and could not be able to identify the accused persons as to who has assaulted from which weapon.
75. We have already referred that this is a case where we are examining the punishment as inflicted against the appellants for commission of offence under Section 302 of the Indian Penal Code and as such, before holding the person concern guilty of commission of offence under Section 302 of Indian Penal Code, the specific overt act is required to be there.
76. The PW-1 has been labelled to be an eye witness but there is no consideration of her testimony in impugned Judgment that she had not seen as to who had assaulted from which weapon.
77. This Court in view thereof is of the view that consideration of PW-1 as an eyewitness cannot be said to be the proper consideration by the learned Trial Court.
78. The PW-2 has also been considered to be and eye witness. We, on the examination of the testimony of PW-2 have found that the several persons were following the deceased. He had disclosed the name of the Panchal, Budhram, Gobra, Anu 26 etc. but he could not recall the name of rest of the persons. He has deposed that Bablu had also sustained injury. He has further deposed that he (PW-2) and his mother (P.W.1) and Binay have fled away from the place of occurrence and they returned back after sometime.
79. In the cross examination, he has deposed that about 10-20 persons had followed the deceased and the Bablu. He has admitted about the dispute over the landed property. He has deposed at Para-7 that he cannot say about the number of assaults given by the accused persons, however, he had said that 20-25 assault was from the tangi (axe) and the injury was also by lathi.
80. We have gathered from the testimony of PW-2 that the disclosure is about assembly of about 10-20 persons. He was also not in a position to disclose the specific overt act said to be committed by the appellants.
81. PW-3 has also been considered to be the eye witness who has deposed at paragraph-3 that he has sustained injury first thereafter Charwa (deceased) has been killed by the accused persons. He has taken name of Panchal and Budhram as an assailant who had assaulted deceased by Bhujali and Lathi respectively. The reference of the name of the Govind, Anugraha Lakra, Budhuwa, Paltu, Bergi, Bhola and Bandhanu have also been taken by him as an assaulter.
82. PW-3, in the cross examination, at para-6 had said 27 that he had not seen anybody killing the Charwa,(the deceased).
83. The PW-3 has also been considered to be an eyewitness by learned trial Court and it appears merely on the basis of consideration of Examination-in-chief where he has supported the prosecution version, he has been considered to be the eye witness but we have not found any consideration of the deposition of this witness (informant) so recorded at Para- 6 wherein he specifically had deposed that he had not seen who has killed Charwa.
84. This Court, in the view of specific statement having been made by the PW-3, is of the view that without taking into consideration the said testimony even though the Trial Court has reached to be the conclusion that the PW-3 is the eye witness and, as such, we are of the view that such consideration treating PW-3 as an eyewitness without considering the testimony as recorded at para-6 cannot be said to be a testimony of the eyewitness so far as the PW-3 is concerned.
85. The doctor has been examined PW-4 who has found altogether 15 wounds out of which 12 are incised in nature. The doctor, in the cross examination, has deposed that all the incised wounds had been by different sharp cutting weapon.
86. PW-6 is Bablu Oraon, who also sustained injury. He being the injured witness, his testimony is having bearing on 28 the prosecution version and as such, we on close scrutiny of his testimony have found in entirety that about 10-30 persons had followed the deceased and the Bablu Oraon i.e. PW-6. However, he at Para-2 had deposed that immediately after sustaining injuries over his head he fell down and become senseless and when he regained his sense then he came to know that Charwa Oraon has been killed by these persons.
87. The PW-6 has deposed in Para-3 that he could not recognize who had assaulted him and Charwa Oraon.
88. This Court in view of the specific deposition as recorded in Examination in Chief that he could not identify that who had assaulted the Charwa Oraon and Bablu Oraon, the PW-6 while he is the injured witness the same ought to have been taken into extensive and deep consideration for the purpose of coming to the concrete conclusion by the learned Trial Court regarding commission of offence by the accused persons, the convicts herein.
89. The PW-7 has been examined as Investigating Officer who has admitted in Para-8 that he had not prepared the map of place of occurrence and he had not sent the seized blood stain earth for forensic and as such nothing has been sent to the forensic science laboratory.
90. The PW-8 who is the doctor who has examined the appellant namely Panchal Oraon, appellant of Criminal Appeal DB No. 463 of 2002 and informant P.W.3 and Bablu Oraon 29 PW-6.
91. So far as the injury which has been said to be sustained by the appellant in Criminal Appeal DB No. 463 of 2002 namely Panchal Oraon is concerned, he had sustained injuries found to be lacerated on skull, three inches back to front and in 3 inches left to middle line. The cause of injury has been shown to be by hard blunt substance may be by lathi. However, the nature of injury of has been said to be simple.
92. The statement of the accused persons has been recorded under Section 313 Cr.P.C wherein they have denied the allegation.
93. This Court, having referred the testimony as above, has found that the witness i.e., the PW-1, PW-2, PW-3 and PW-6, the injured witness, which is basis of conviction after having being considered to be the eyewitness.
94. So far as PW-1, PW-2 and PW-3 are concerned, we have already expressed our view that they are not the reliable witness and their evidences are not trustworthy. So far as, the reliability of the injured witness that is PW-6 is concerned, it has been deposed by him that he had not recognized that who has assaulted him and the deceased, as such, this Court is of the view that the testimony of PW-6, the injured witness, since has deposed that he had not identified who has killed the deceased, but there is no extensive and deep consideration 30 with respect to the aforesaid testimony of PW-6 by the learned Trial Court in the impugned judgment. Rather, merely on the basis of his presence and since he sustained injuries his testimony has been said to be conclusive for the purpose of proving the charge.
95. The presence of PW-6 cannot be disputed in view of the fact that he also sustained injuries having been corroborated by the PW-8 but he has not disclosed the presence of either PW-1 or PW-2 or PW-3 at the place of occurrence who can be the said to be the best person to say that PW-1 or PW-2 or PW-3 or together PW-1, PW-2 and PW-3 were present at the place of occurrence. Further PW-1, PW-2 and PW-3 have disclosed that about 10-30 persons were following the deceased without disclosing or without giving any specific overt act said to be committed by these appellants.
96. We have already referred herein that the guilt under Section 302 of the Indian Penal Code is to be based upon the specific overt act. However, in the present case the conviction under Section 302 of the Indian Penal Code is also with the aid of Section 149 of the Indian Penal Code.
97. The Section 149 of the I.P.C speaks about the common object by the unlawful assembly. The interpretation of Section 149 attracting its applicability has been dealt with by the Hon'ble Apex Court that merely by adding Section 149 of the Indian Penal Code without any specific attributability or 31 without any specific material showing the mindset regarding common object in an unlawful assembly, there cannot be any conviction under Section 302 with the aid of Section 149 of the Indian Penal Code.
98. At this juncture it is necessary to examine the provisions of Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which reads as under:-
"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."
99. Thus, this section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore, when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not 32 himself committed.
100. Further, 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".
101. The Hon'ble Apex Court has exclusively dealt with application of ingredients of Section 149 in the case of Ramachandran vs. State of Kerala, reported in (2011) 9 SCC 257 and has observed at Paragraph Nos.17 to 27 as under:-
"17. Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
18. For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
19. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Vide Bhanwar Singh v. State of 33 M.P.) Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated.
20. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
21. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.
22. In K.M. Ravi v. State of Karnataka this Court observed that mere presence or association with other members 34 alone does not per se become sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
23. Similarly, in State of U.P. v. Kishanpal this Court held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object or such as the members of the assembly knew were likely to be committed.
24. In Amerika Rai v. State of Bihar this Court opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere 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.
25. Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P. are very relevant: (SCC pp. 209-10, para 13) "13. ... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. ... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It 35 may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter."
26. In Bhanwar Singh v. State of M.P. this Court held:
(SCC p. 674, para 44) "44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc.
27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. "Common object"
may also be developed at the time of incident.
102. In the case of Subal Ghorai Vs. State of W.B., reported 36 in (2013) 4 SCC 607, the Hon'ble Supreme Court at Paragraph Nos. 42 to 47 and 50 to 53 has observed as under: -
42. We must now deal with the submission that all the accused cannot be convicted for murder with the aid of Section 149 IPC because the prosecution story that all the accused were armed with weapons and they attacked the deceased is based on omnibus statements of the eyewitnesses. In order to deal with this submission, we have reproduced the material portions of the evidence of the eyewitnesses. It is now necessary to refer to the judgments of this Court which have been relied upon by the counsel on this point so that the evidence of the witnesses can be examined in their light.
43. In Lalji this Court observed that Section 149 IPC makes every person who is the member of an unlawful assembly at the time of committing of the offence guilty of that offence. It creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of this assembly.
However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of person falls within the ingredients of the section, the question that he did nothing with his own hands, would be immaterial, because everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined and it is not necessary that all the persons forming an unlawful assembly must do some overt act.
44. It was further observed in Lalji case that: (SCC p. 442, para
10) "10. ... once the court holds that certain accused persons formed an unlawful assembly and an offence is 37 committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence." This Court further observed that: (Lalji case, SCC p. 442, para
10) "10. ... After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."
45. On the facts of the case before it, this Court held that after having held that: (Lalji case, SCC p. 442, para 11) "11. ... the appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence ... it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of Section 149 IPC, the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 IPC."
46. In Sherey 25 appellants were tried for offences punishable under Sections 147, 148, 302, 307, 323 and 325 all read with Section 149 IPC in respect of an incident of rioting. The rioting occurred because of the dispute over a grove between Hindus and Muslims. Twenty-five Muslims attacked Hindus. Three Hindus died. Six eyewitnesses deposed about the incident. PW 1 complainant gave a detailed version and attributed overt acts to nine accused. In deposition, he named five more persons who also attacked 38 the deceased. Regarding the others, he mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. This Court observed that in the circumstances, it was difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they were charged. This Court expressed that it was highly unsafe to apply Section 149 IPC and make everyone of them constructively liable. This Court further observed that when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Some reasonable circumstance must be found out to lend assurance. It was further observed that from that point of view it was safe only to convict the nine accused whose presence was not only consistently mentioned from the stage of FIR but also to whom overt acts were attributed. This Court concluded that the fact that they were armed with weapons and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged.
47. In Thakkidiram Reddy the case of the prosecution was that the 21 accused in the dead of night formed themselves into an unlawful assembly armed with weapons and went to the house of the deceased. They attacked the inmates of the house of one Gankidi Reddy in which Gankidi Reddy lost his life. The accused, thereafter, left the place. The trial court acquitted 10 of them and convicted A-1 to A-11, inter alia, under Section 148 and Section 302 read with Section 149 IPC. In the appeal, the High Court set aside the convictions of A-2 to A-11 under Sections 148 and 302 read with Section 149 IPC and maintained all other convictions. The State carried an appeal to this Court. This Court referred to its previous judgments in Masalti v. State of U.P. and Lalji and observed (Thakkidiram Reddy case, SCC p. 562, para
17) that from these judgments, "it is evident that to ascertain whether a particular person shared the common 39 object of the unlawful assembly, it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed--or he knew was likely to be committed--by any other person, he would be guilty of that offence".
This Court further observed that undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test. This Court rejected the submission that some of the accused had caused simple injuries and, hence, they did not share common object to murder and observed that the manner in which the incident took place clearly proved that even if this Court were to assume that those accused did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A-1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In the circumstances, order of acquittal of A-2 to A-5 and A-9 of the charges under Sections 148 and 302 read with Section 149 IPC recorded by the High Court was set aside and the order of the trial court convicting them for the said offences was restored.
50. In Pandurang Chandrakant Mhatre, after adverting to relevant judgments, this Court observed: (SCC p. 797, para 72) "72. ... that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is the object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of the incident."
40
51. In Waman this Court held that: (SCC p. 307, para 40) "40. ... whenever the court convicts any person or persons of any offence with the aid of Section 149 IPC, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 IPC it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly." In that case, there was no recovery of weapon from A-12 therein, but weapons were recovered from other accused and prosecution witnesses asserted that A-12 therein dealt a blow of iron pipe on the deceased. This Court held that this was sufficient to attract Section 149 IPC.
52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the 41 ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has 42 to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
103. In the light of aforesaid settled proposition of law, it can be safely inferred that Common object of the unlawful assembly can be gathered from the nature of the assembly, 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.
104. It is further settled proposition of law that in absence of evidence of any common object being established, accused are liable for their individual acts only. Moreover, mere presence does not make a person member of unlawful assembly unless he actively participates in rioting or does some overt act with necessary criminal intention or shares common object of unlawful assembly as has been held by Hon'ble Apex Court in Vijay Pandurang Thakre v. State of Maharashtra, (2017) 4 SCC 377.
105. The totality of the circumstances must be taken into consideration in order to arrive at a truthful conclusion that the appellants had a common object to commit the offence under which they were convicted.
106. Further it is settled connotation of law that it is necessary to establish common object before a person can be 43 convicted with aid of Section149 as has been held by Hon'ble Apex Court in the case of Dauwalal v. State of M.P., (2019) 4 SCC 538.
107. In the background of the aforesaid settled legal proposition of law, this Court is now adverting to the facts of the case to decide the aforesaid issues.
108. The specific attributability has been alleged by the prosecution against Panchal Oraon appellant of Cr. Appeal (DB) No.463 of 2002 and Budhwa Oraon one of the appellants in Cr. Appeal (DB) No.370 of 2002. Their conviction is based upon the testimony of PW-1, PW-2 and PW-3 coupled with the testimony of PW-6.
109. We have already come to the conclusion after scrutiny of the testimony of PW-1, PW-2 and PW-3 that their testimonies are not reliable as their evidences having contradiction and further, they have not specifically stated any overt act by the accused/appellants.
110. It is also settled proposition of law that for conviction of an offence read with Section149 IPC, it is necessary that there should be a finding as to the common object of the participants. Although the learned trial court has sentenced the appellant under Section 302 read with Section 149 IPC, the trial court has not recorded any finding as to how the appellants shared the common object to establish their constructive liability to sustain 44 the conviction under Section 302 read with Section 149 Indian Penal Code, therefore, in such situation convicting the appellants with aid of section 149 is very much questionable.
111. So far as, the attributability said to be committed by the Panchal Oraon appellant of Cr. Appeal (DB) No.463 of 2002 is concerned, the allegation against him is that he had assaulted the deceased by Bhujali but there is no reference either by PW-1 or PW-2 or PW-3 that what is the number of blows by Bhujali by Panchal Oraon. Rather, all along the version of PW-1, PW-2 and 3 is that the Panchal Oraon had assaulted by Bhujali and some other accused by the lathi, but when we have examined the testimony of the doctor, who has been examined as PW-4, we have found that the number of wounds were 15, out of which 12 are incised wounds. As such, we cannot come to the conclusive finding that these witnesses i.e. PW-1 or PW-2 or PW-3 are the reliable witness.
112. The said view is further been fortified from the testimony of PW-6, who sustained injury has not disclosed about the presence of PW-1 or PW-2 or PW-3 at the place of occurrence. Further PW-3 has also deposed that he had not seen as to who had killed the deceased, namely Charwa Oraon.
113. So far as the other appellants are concerned, even accepting their presence in the assembly unless the prosecution will come with the material that such assembly 45 was the common object for the purpose of killing a person, then only the ingredient of Section 149 of the Indian Penal Code will be there, as has been held by the Hon'ble Apex Court in the judgment as referred hereinabove. But we have not found any material showing the common object being the member of unlawful assembly so as to attract the ingredient of Section 149 of Indian Penal Code after going through the testimony of all the witness.
114. This Court, having discussed as above, and adverting to the judgment passed by the learned Trial Court has found that the judgment is primarily based upon the testimony as recorded in the Examination in Chief and there is no reference what has been deposed by one or the other witnesses in the cross examination.
115. It is prime duty of the learned Trial Court to consider for the purpose of making balance the testimony which has been recorded in the Examine in Chief and the cross- examination and if the testimony of one or the other witnesses as recorded in the Examination in Chief remain consistent in cross examination, then if the learned Trial Court comes to the conclusion by making up its mind that the prosecution has been able to prove the charge said to be proved beyond all reasonable doubt. But if the part of the testimony as recorded in the cross examination at all has not been considered even though the same has been referred then how can such 46 judgment is said to be proper and justified.
116. The cross examination of the witnesses is not only for the sake of formality but for the purpose of its consideration and if there is no consideration, such judgment cannot be said to be a judgment with all fairness and transparency.
117. We have also found that the finding as recorded by the learned Trial Court in para-12 that only one accused has cross examined the witnesses and that has also been taken as a ground for conviction, but we are not in agreement with such finding, reason being that when the learned Trial Court, even in such circumstances, is to come to the conclusive finding after taken into consideration the testimony of all the witnesses together and not basing upon the testimony of one of the witnesses.
118. Herein, since we have already reached to the conclusion as per the discussion made as above that the case is primarily based upon the testimony of eye witnesses but we have found that there is no consistency in the testimony of either of the witnesses i.e. PW-1 or PW-2 or PW-3. Further PW- 6, being the injured witness, can be said to be the proper eyewitness but he has also not identified as the who has killed the deceased.
119. This Court, in view of the aforesaid discussion, is of the view that the judgment passed against the appellants cannot be said to be based upon the material available on 47 record, rather, the same is without any proper consideration without making any balance of the testimony of the witnesses.
120. Therefore, we are of the view that the impugned judgment needs interference.
121. Accordingly, the judgment of conviction dated 15.05.2002 and order of sentence dated 16.05.2002, passed by learned 1st Additional Sessions Judge, Gumla, is hereby quashed and set aside.
122. Consequently, the appellant of Cr. Appeal (DB) No.463 of 2002 namely Panchal Oraon, the appellant of Cr. Appeal (DB) No.367 of 2002 namely Anugarha Lakra @ Sunil Bara and the appellants of Cr. Appeal (DB) No.370 of 2002 namely Bandhanu Bhagat, Bhola Oraon and Gobra Oraon are hereby discharged from all criminal liabilities. Since the aforesaid appellants are on bail, they are discharged from the liability of the bail bonds.
(Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) Birendra/-A.F.R. 48