Chattisgarh High Court
Tejram Kewat @ Teju vs State Of Chhattisgarh on 14 December, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Cr.A. No. 904 of 2013
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 904 of 2013
1. Tejram Kewat @ Teju, S/o Vishram Kewat, A/A 24 years,
2. Naresh Kumar S/o Radhelal Yadav, A/A 30 years,
3. Radhelal @ Bhaggu, S/o Kariya Yadav, A/A 60 years,
4. Brijlal S/o Sakharam Kewat, A/A 40 years
5. Khel Kumar @ Khelu S/o Sidar Yadav, A/A 30 years (In compliance
of order of this Court dated 02.12.2022, his name has been
deleted as he died and appeal on his behalf stood abated),
All R/o Tauli Dih, Thana Sarsiwan, Balodabazar, Civil & Revenue
District Raipur, Chhattisgarh
---- Appellants
Versus
State of Chhattisgarh, Through Aarakshi Kendra Sarsiwan, District
(Now Balodabazar), Chhattisgarh
---- Respondent
For Appellants : Mr. Arvind Shrivastava, Advocate
For Respondent : Mr. Arjit Tiwari, Panel Lawyer
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
Judgment on Board
(14.12.2022)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellants/accused herein under Section 374 (2) of the Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 16.08.2013 passed by the Court of learned IInd Additional Sessions Judge, Balodabazar in Sessions Trial No. 04/2013, whereby each of the appellants have been convicted for offence punishable under Section 147 of the IPC and sentenced to undergo rigorous imprisonment for six months with fine of Rs.100/-, in default of 2 Cr.A. No. 904 of 2013 payment of fine to further undergo additional rigorous imprisonment for fifteen days; under Section 148 of the IPC and sentenced to undergo rigorous imprisonment for one year with fine of Rs.200/-, in default of payment of fine to further undergo additional rigorous imprisonment for fifteen days and under Section 302 read with Section 149 of the IPC and sentenced to undergo imprisonment for life with fine of Rs.1,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for six months. It is also directed that all the sentences to run concurrently.
2. The case of the prosecution, in brief, is that in the intervening night of 23rd-24th October, 2012 02:30 am a dance program was organized at village Taulidih, the appellants herein alongwith co- accused namely Mahettar and Shivkumar and appellant/accused Khel Kumar @ Khelu (died and his appeal stood abated) constituted unlawful assembly with a common object to commit murder and in furtherance of their said common object, they all were armed with deadly weapons i.e. axe and gupti and caused murder of Santosh Kumar Sahu (deceased), thereby they committed the aforesaid offence.
3. The further case of the prosecution, in nutshell, is that on 23.10.2012 at village Taulidih, a dance program was organized and during continuance of that program at about 02:30 am dispute arose between the appellants and the deceased and thereafter in furtherance of common object in front of house of Firatram, the appellants herein and co-accused assaulted deceased Santosh 3 Cr.A. No. 904 of 2013 Kumar Sahu by hands and fists and co-accused Shivkumar assaulted the deceased by means of gupti by which the deceased suffered grievous injuries on his stomach and chest. The deceased was smeared with blood and became unconscious. Thereafter, the family members of the deceased and others took the deceased to the Government Hospital, Sarangarh where he has been declared dead by the Doctor. Therefore, offence under Section 302 of the IPC was registered against unknown person vide F.I.R. Ex.-P/12 in Police Station Sarsiwa, Balodabazar. Merg intimation was also recorded vide Ex.-P/11. Summons were issued to the witnesses under Section 175 of Cr.P.C. vide Ex.-P/1 and in presence of the witnesses, inquest was conducted vide Ex.-P/2. Spot map was prepared vide Ex.-P/8. Nazrinaksha was also prepared by Patwari vide Ex.-P/7. The dead body of deceased Santosh Kumar Sahu was sent for postmortem. The postmortem examination was conducted by Dr. M.K. Manhar (PW-4) and he gave his report vide Ex.-P/5. As per postmortem report (Ex.-P/5), Dr. M.K. Manhar (PW-
4) opined that cause of death of deceased Santosh Kumar Sahu was harmorrahgic shock due to excessive blood loss from the vital organ (heart) and body. Doctor also opined that death of the deceased was homicidal in nature.
4. Accused/appellants herein were arrested on 28.10.2012. After due investigation, the accused/appellants were charge-sheeted for the offence punishable under Sections 147, 148, 149 & 302 of the IPC and Sections 25 & 27 of Arms Act which was placed before the 4 Cr.A. No. 904 of 2013 Court of Judicial Magistrate First Class Bhatgaon and it was then committed to the Court of IInd Additional Sessions Judge, Balodabazar for trial in accordance with law, in which the accused persons abjured their guilt and entered into defence. The learned trial Court framed charges under Sections 147, 148 & 302/149 of the IPC against the appellants which were denied by them and they prayed for trial. Co-accused Shivkumar absconded from the date of incident.
5. In order to bring home the offence, prosecution examined 18 witnesses and brought on record 18 documents. Statements of the appellants/accused were recorded under Section 313 of the CrPC wherein they abjured their guilt, they did not examine any witness, however, exhibited 04 documents i.e. Exibit.-D/1 to Ex.-D/4.
6. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellants for the offence punishable under Sections 147, 148 & 302/149 of the IPC and sentenced them as mentioned in the opening paragraph of this judgment.
7. During the pendency of this appeal, appellant No.5 Khel Kumar @ Khelu died and the appeal so far as it relates to appellant Khel Kumar @ Khelu stands abated vide order of this Court dated 02.12.2022. Therefore, the present appeal on behalf of remaining appellants No. 1 to 4 are being considered.
8. Learned counsel for the appellants submits that the appellants have been convicted with the aid of Section 149 of the IPC, but from the 5 Cr.A. No. 904 of 2013 evidence of Ramnath (PW-10), it is apparent that the appellants were not the members of unlawful assembly, the common object of unlawful assembly was not to commit murder of the deceased. He further submits that the deceased was killed by co-accused Shivkumar, the absconded accused, and the appellants have not caused any injury to the deceased nor have participated in the incident. He also submits that conviction is not well founded and the prosecution has utterly failed to collect evidence against the appellants to connect them with the crime in question. Therefore, conviction of the appellants for offence punishable under Sections 147, 148 & 302/149 of the IPC is liable to be set aside.
9. Per contra, learned counsel for the State opposing the submission made by learned counsel for the appellants submits that conviction is well founded and is strictly in accordance with law. Therefore, the trial Court has rightly convicted the accused/appellants for the offence mentioned herein above, thus, the present criminal appeal filed by the appellants deserves to be dismissed.
10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
11. The first question is as to whether the death of the deceased was homicidal in nature, which has been answered by the learned trial Court in affirmative by relying upon the postmortem report (Ex.-P/5) duly proved by Dr. M.K. Manhar (PW-4). In our considered opinion it is correct finding of fact based on evidence available on record 6 Cr.A. No. 904 of 2013 and same is neither perverse nor contrary to the record. We hereby affirm that finding.
12. Now, the next question would be, whether the accused/appellants herein are the perpetrators/authors of the crime in question?
13. It is the case of the prosecution that a dance program was organized at village Taulidih, during continuance of program, dispute arose between the appellants and one Ramnath (PW-10) and in that quarrel Santosh Kumar Sahu (deceased) came to intervene and tried to settle the dispute between them. Further case of the prosecution is that all the appellants/accused persons assaulted the deceased by hands & fists. In that dispute appellant No. 1 Tejram Kewat abused Ramnath (PW-10) and Tejram and other accused persons assaulted him and at that time deceased Santosh Kumar Sahu came there and intervened, then co-accused Shivkumar caused stab injury by means of gupti to the deceased as a result of which the deceased suffered grievous injury and thereafter, the deceased was taken to Sarangarh Hospital where he has been declared dead by the Doctor.
14. Prosecution case is based on the testimony of sole eyewitness Ramnath (PW10) and relying upon him, the trial Court held that the appellants constituted unlawful assembly and in furtherance of their common object, they caused murder of deceased Santosh Kumar Sahu. The incident is of 24.10.2012. Ramnath has been examined as prosecution witness and he has stated before the court that after attending the dance program, he was returning home finding difficult 7 Cr.A. No. 904 of 2013 to stay there as it was late night. While he was returning to home, he reached to gali and asked Tejram (A-1) to give him way to go to home by which Tejram abused him and other accused persons came there and started abusing him. At that time deceased Santosh Kumar Sahu came on the spot and tried to intervene/settle the dispute and immediately thereafter co-accused Shivkumar came there and caused stab injury to the deceased by means of knife (gupti). The deceased suffered injury and died in the hospital. Thereafter, Ramnath (PW-10) and one Ishwar were suspected to have committed the offence, both were detained in hospital on 24.10.2012. Further also on 25.10.2012, they were detained along with Keshram, Firat, Jhumuk and Thandaram, but Ramnath (PW-
10) did not tell the police about the incident and he did not tell that he is eyewitness to the incident. Thereafter, meeting of Sahu Samaj was held on 26.10.2012 and after 4-5 days, a meeting was also held in the School, but he did not tell the names of assailants of deceased Santosh Kumar Sahu.
15. Antram (PW-14) has stated before the Court that on 26.10.2012 meeting was held in the house of Pilaram Sahu and on 27.10.2012 meeting was also held in the village school in which Ramnath (PW-
10) was present, but Ramnath (PW-10) did not inform the name of assailants to anyone and in custody of police on 24-25.10.2012, he did not inform anything about the incident to the police and his (PW-
10) statement came to be recorded on 27.10.2012 by Investigating Officer M.L. Tiwari (PW-18). As such the fact of not informing by 8 Cr.A. No. 904 of 2013 Ramnath (PW-10) to the police and including in two meetings have been held in the village is unnatural. If Ramnath (PW10) had seen the incident and knew the name of assailants, natural conduct would be to disclose incident and name of the assailants in the meetings and non-disclosure of the said fact, name of assailants in the meetings, apart from his unnatural conduct, it creates doubt on the testimony of Ramnath (PW-10).
16. Apart from the said fact, M.L. Tiwari (PW-18), I.O., has taken the statement under Section 161 of the Cr.P.C. of Ramnath (PW-10) on 27.10.2012 and I.O. M.L. Tiwari (PW-18) has stated that he has taken the statement on 27.12.2012, but further stated in Para-14 that he took the statement of Ramnath on 27.12.2012 because he could not meet Ramnath (PW-10) prior to 27.12.2012. However, Ramnath (PW-10) has clearly admitted in his statement before the Court in Para-16 that he and one Ishwar were suspected for commission of offence and they were called by police for interrogation on 24.10.2012 and further he also admitted that he was also called for interrogation by police on 25.10.2012 alongwith Keshram, Firat, Jhumuk and Thandaram. Even I.O. (PW-18) in Para-7 has also admitted that on 25.10.2012, he visited village Taulidih and Ramnath (PW-10) was present and he was cooperating in the investigation, but nobody informed about the said blind murder. As such the statement of I.O. M.L. Tiwari (PW-18) that till 26.10.2012, he did not have an opportunity to reach Ramnath (PW-10) to record the statement is totally incorrect and contrary to 9 Cr.A. No. 904 of 2013 the records, as according to his own version, Ramnath (PW-10) was available on 25.10.2012 and was cooperating with the investigation, even on the own showing of Ramnath (PW-10) that he was in custody of police on 24.10.2012 and 25.10.2012 and, therefore, in recording the statement after three days makes the version of PW 10 Ramnath untrustworthy, particularly when conviction is based on the sole testimony of eyewitness Ramanth (PW-10).
17. The Supreme Court in the matter of Amar Singh vs. State (NCT of Delhi1 has held that there is no legal impediment in convicting a person on the sole testimony of single witness, as per logic of Section 134 of Indian Evidence Act, but if there are doubt about the testimony, the courts will insist on corroboration and held as under :-
"16. Thus, the finding of guilt of the two appellant- accused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi, (2003) 11 SCC 367]."
18. Reverting to the facts of the case, it is quite vivid that the sole testimony of eyewitness Ramnath (PW-10) is not free from blemish, his conduct is unnatural in not reporting the matter to the police for 1 (2020) 19 SCC 165 10 Cr.A. No. 904 of 2013 three days, though he remained in custody of police on 24.10.2012 and 25.10.2012. Further, in the meetings held in the village on 26.10.2012 and 27.10.2012, he was present and he had an opportunity to tell the incident to villagers/panchas and also to tell the names of the assailants to the villagers/panchas, but he did not avail the opportunity to inform the incident and to disclose the names of the assailants to the panchas which creates a doubt in our mind as to whether he is actual eyewitness to the incident. Therefore, it would be unsafe to rest conviction of the appellants on the basis of sole testimony of Ramnath (PW-10).
19. Even assuming that the appellants were the members of unlawful assembly it has not been shown by the prosecution that they have caused any overt act for commission of offence of murder of deceased Santosh Kumar Sahu as it is apparent that stab injury was caused to the deceased by co-accused Shivkumar (absconded co-accused), and the appellants have not caused injury to the deceased or participated in the incident. Where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, their Lordships of Supreme Court have applied rule of caution taking into consideration particular fact-situation and convicted those accused persons whose presence was clearly established and overt acts were proved.
20. In the matter of Baladin vs. State of U.P.2, the Supreme Court has 2 AIR 1956 SC 181 11 Cr.A. No. 904 of 2013 held that mere presence in an assembly does not make such a person a member of unlawful assembly unless it is shown that he had something or omitted to do something which would make him a member of unlawful assembly or unless case falls under Section 142 of the IPC. Merely because some persons assembled, all of them cannot be condemned ipso-facto as being members of that unlawful assembly. It was incumbent upon prosecution to prove that commission of such offence must have been committed in prosecution of common object of unlawful assembly or such that members of the assembly knew that it was likely to be committed.
21. In the matter of Sherey vs. State of U.P.3 their Lordship of Supreme Court has been held in Para-04 as under :-
"4. ..... But 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. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt act are attributed......"
22. Similarly, in the matter of Musa Khan vs. State of Maharashtra4 it has been held by their Lordships that 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 these stages and held in Para-05 as under :-
"5. ...... Thus a court is not entitled to presume that 3 1991 Supp (2) SCC 437 4 (1971) 1 SCC 733 12 Cr.A. No. 904 of 2013 any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, 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 these stages....."
23. Furthermore, in the matter of Nagarjit Ahir vs. State of Bihar5 their Lordships applied the rule of caution and in the facts and circumstance of the case held that "it may be safe to convict only those persons against whom overt act is alleged with the aid to Section 149 IPC lest some innocent spectators may get involved". Thereafter, all these judgments in the matters of Masalti vs. State of U.P.,6, Sherey (supra), Musa Khan (supra) and Nagarjit Ahir (supra) have been followed by their Lordships of Supreme Court in the matter of Pandurang Chandrakant Mhatre and others vs. State of Maharashtra7 and the accused persons therein against whom overt act was not there, applied the rule of caution held in Para-74 as under :-
"74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3, and A-12 under Section 302 read with Section 149 I.P.C. whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are 5 (2005) 10 SCC 369 6 AIR 1965 SC 202 7 (2009) 10 SCC 773 13 Cr.A. No. 904 of 2013 clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149 I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so."
24. Lastly, in the matter of Vijay Pandurang Thakre and others vs. State of Maharashtra8 it has been further held that three elements contained in Section 149 IPC i.e. (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed, are satisfied, then only a conviction under Section 149 of I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly and further held in Para-20 & 21 as under :-
"20. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. Had there been any common objective to cause 8 (2017) 4 SCC 377 14 Cr.A. No. 904 of 2013 murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc.
21. We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case."
25. The principles of law laid down in Musa Khan (supra) has been followed by the Supreme Court in the matter of Usmangani alias Bhura Abdul Gaffar vs. State of Gujarat9 with approval. Thereafter, very recently in the matter of Arvind Kumar @ Nemichand vs. State of Rajasthan10 wherein the scope of Section 149 of IPC was considered by the Supreme Court and held as under :-
"Scope of section 149"
50. Section 149 of the Code deals with a common object. To attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members. Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one 9 (2020) 12 SCC 503 10 2021 SCC Online SC 1099 15 Cr.A. No. 904 of 2013 when the assembly is unlawful. It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offense. Thus, it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member. Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction. Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offense committed by the others under section 149 IPC. The principle governing the aforesaid aspect is taken note of by this court in Ranjit Singh v. State of Punjab, (2013) 16 SCC 752:
"35. Baladin v. State of U.P. [AIR 1956 SC 181 :
1956 Cri LJ 345] was one of the early cases in which this Court dealt with Section 149 IPC. This Court held that mere presence in an assembly does not make a person a member of the unlawful assembly, unless it is shown that he had done or omitted to do something which would show that he was a member of the unlawful assembly or unless the case fell under Section 142 IPC. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. The prosecution in all such cases shall have to lead evidence to show that a particular accused had done some overt act to establish that he was a member of the unlawful assembly. This would require the case of each individual to be examined so that mere spectators who had just joined the assembly and who ware unaware of its motive may not be branded as members of the unlawful assembly.
36. The observations made in Baladin case [AIR 1956 SC 181 : 1956 Cri LJ 345] were considered in Masalti v. State of U.P. [AIR 1965 SC 202 :
(1965) 1 Cri LJ 226] where this Court explained that cases in which persons who are merely passive witnesses and had joined the assembly 16 Cr.A. No. 904 of 2013 out of curiosity, without sharing the common object of the assembly stood on a different footing; otherwise it was not necessary to prove that the person had committed some illegal act or was guilty of some omission in pursuance of the common object of the assembly before he could be fastened with the consequences of an act committed by any other member of the assembly with the help of Section 149 IPC. The following passage is apposite in this regard: (Masalti case [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], AIR p.
211, para 17) "17. ... The crucial question to determine 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 as 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. It is in that context that the observations made by this Court in Baladin [AIR 1956 SC 181 : 1956 Cri LJ 345] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
(emphasis supplied)
37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] this Court held that while in a faction- ridden society there is always a tendency to implicate even the innocent with the guilty, the 17 Cr.A. No. 904 of 2013 only safeguard against the risk of condemning the innocent with the guilty lies in insisting upon acceptable evidence which in some measure implicates the accused and satisfies the conscience of the court.
39. That in a faction-ridden village community, there is a tendency to implicate innocents also along with the guilty, especially when a large number of assailants are involved in the commission of an offence is a matter of common knowledge. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scruitinise the evidence more closely to avoid any miscarriage of justice."
26. Reverting to the facts of the present case in light of the aforesaid principles of law laid down by the Supreme Court, it is quite vivid that none of the appellants were armed with deadly weapon except their presence has been recorded on the basis of sole testimony of alleged eyewitness Ramnath (PW-10) to which we have already held to be untrustworthy and not reliable in forgoing paragraphs, as such neither the appellants have assaulted deceased Santosh Kumar Sahu nor any specific overt act has been alleged against them and it has not been established that four accused persons/appellants herein namely Tejram Kewat @ Teju, Naresh Kumar, Radhelal @ Bhaggu and Brijlal have shared common object/intention and particularly it is not proved that these appellants knew that offence of murder is likely to be committed by co-accused Shivkumar who was armed with knife (gupti) and assaulted deceased Santosh Kumar Sahu. By applying the rule of caution as has been held by their Lordships of the Supreme Court in the 18 Cr.A. No. 904 of 2013 matters of Masalti (supra), Sherey (supra), Musa Khan (supra), Nagarjit Ahir (supra), Pandurang Chandrakant Mhatre (supra) and Vijay Pandurang Thakre (supra) it would be unsafe to convict these 04 accused-appellants in the present appeal, namely, Tejram Kewat @ Teju (A-1), Naresh Kumar (A-2), Radhelal @ Bhaggu (A-
3) and Brijlal (A-4) for offence under Sections 147, 148 & 302 of the IPC with the aid of Section 149 of the IPC and their conviction for aforesaid offences is liable to be set aside.
27. In view of the aforesaid analysis, we are of the considered opinion that prosecution has miserably failed to bring home the offences punishable under Sections 147, 148 & 302 of the IPC read with the aid of Section 149 of the IPC against the appellants and the trial Court is absolutely unjustified in convicting them for the said offences. Therefore, the appellants are entitled to benefit of doubt and we hereby set aside the impugned judgment of conviction and order of sentence passed by the trial Court and acquit the appellants from the charges levelled against them. The appellants are reported to be on bail, therefore, their bail bonds shall remain in force of a period of six months from today in view of the provisions of Section 437-A of Cr.P.C.
28. Accordingly, this criminal appeal stands allowed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
vatti