Allahabad High Court
Amar Singh And Others vs State Of U.P. on 26 February, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No. - 2024:AHC:33045-DB RESERVED ON 19.1.2024
DELIVERED ON 26.2.2024
Case :- CRIMINAL APPEAL No. - 4677 of 2002
Appellant :- Amar Singh And Others
Respondent :- State of U.P.
Counsel for Appellant :- V.S. Singh,Amrendra Pratap Singh,Lavesh Sharma,Narendra Kumar Singh,Rabindra Bahadur Singh,Ravindra Sharma
Counsel for Respondent :- Govt. Advocate,Anand Pratap Singh,Aryan Srivastava,Prakash Chandra Srivastava
Hon'ble Siddharth,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Shri Ravindra Sharma, Shri N.K. Singh and Shri R.B. Singh, learned counsel for the surviving appellant nos.3,5,and 6; Shri Rishab Srivastava, learned counsel for the informant and Shri Sushil Kumar Pandey, learned A.G.A.-Ist.
2. This criminal appeal has been preferred against the judgement and order dated 17.10.2002, passed by Additional Sessions Judge(Fast Track Court No.3), Agra in Sessions Trial No. 471 of 1996, convicting and sentencing the appellants under section 302 read with section 149 I.P.C. to undergo life imprisonment and a fine of Rs. 5,000/- against each accused-appellant and in case of non-payment of fine, to undergo one year's R.I.
3. This appeal has already been dismissed as abated against appellant no.1, Amar Singh, appellant no.2, Raghuraj Singh and appellant no.4, Ram Saran by the order of this court dated 12.1.2024.The appeal has been pressed only regarding surviving appellant nos. 3,5 and 6,namely, Devendra Singh, Kehari Singh and Rakesh Kumar.
4 The prosecution case as per First Information Report is that in the night of about 19/20.12.1995, uncle of the informant, Gyan Singh and his aunt, Smt. Urmila were sleeping in their baithak (drawing room) when at about 2.30-3.00 A.M., Gyan Singh heard some noise regarding presence of some persons outside his Baithak. He called from inside, who is there? On this his wife, Urmila, also awoked. An earthen lamp was burning inside the Baithak. Gyan Singh, opened the door to see who is outside when co-villagers, Amar Singh, Raghuraj Singh, Devendra Singh, sons of Ajab Singh; Ram Saran son of Mukut Singh; Kehri Singh son of Mantoo Singh and Rakesh Kumar son of Ramesh Singh Thakur, forced their way inside the Baithak and caught hold of Gyan Singh with common object and started assaulting him. On alarm being raised by the first informant and Gyan Singh, the villagers, Hari Om son of Vishambhar, Rajendra Singh son of Sobha Ram and many others came running,who saw the incident. In the meantime accused persons, after causing murder of Gyan Singh, ran towards the northern side. Informant and other witnesses saw the accused persons well in the light of earthen lamp and torches. Yesterday on 19.12.1995, the Bahu (daughter-in-law) of accused, Raghuraj Singh, was making cow dung cakes, when the deceased, Gyan Singh, was coming from his agricultural field. Daughter-in-law of Raghuraj Singh made complaint at her house that Gyan Singh was abusing her. On account of aforesaid incident all the accused persons caused the murder of Gyan Singh.
5. The case was committed by the C.J.M., Agra to the Sessions Court on 17.6.1996 for trial. The trial court charged the accused persons for committing the offence under section 302 I.P.C. They denied the charges and prayed for trial.
6. Before the trial court informant, Raj Kumar, was examined as P.W.1; eyewitness of the incident, Rajendra Singh was examined as P.W.2; Dr. Anoop Kumar, who conducted the postmortem of the deceased was examined as P.W.3,Head constable Harish Chandra, who proved the Chik First Information Report and entries in General Diary(G.D.) was examined as P.W.4; investigating officer of the case, M.P. Singh, was examined as P.W.5, Inspector Incharge, Hari Nath Sharma, who filed the charge sheet against accused and proved the same was examined as P.W.6.
7. P.W.1, Rajkumar deposed before the court that in the night of 19/20-12.1995 his uncle Gyan Singh and aunt, Urmila Devi, were lying in their baithak and an earthen lamp was burning on the window in the side of the baithak. At about 2:30-3:00 A.M. in the night presence of some persons outside the door was felt by his uncle, Gyan Singh, who waked up and called who is there?On his call his aunt, Urmila, also awoke. His uncle opened the latches of door of the baithak to see the persons outside and he found co-villagers, Raghuraj, Devendra Singh sons of Ajab Singh ; Ram Sharan son of Mukut, Rakesh son of Rajesh Singh standing near the door. All of them with surrounded his uncle Gyan Singh with common object and started beating him. Raghuraj had Ballam ; Ram Saran caught hold of Gyan Singh; Amar Singh and Devendra Singh caught hold of his right and left hands, respectively. Raghuraj attacked Gyan Singh by Ballam and Rakesh was exhorting him to kill Gyan Singh.Kehari was also exhorting alongwith Rakesh. He raised alarm and then neighbours, Hari Om Singh and Rajendra Singh, etc., came. Except accused, Rakesh, other accused belong to his village and he knows them. After causing murder of his uncle, Gyan Singh, they ran away towards northern side. He saw the accused persons in the light of earthen lamp and torch.He knew them well and identified them. Torches were in possession of P.W.1, Hariom and P.W.2, Rajendra Singh. On the same day at about 4 P.M. when Gyan Singh was returning to his house from agricultural field,bahu( daughter-in-law) of accused Raghuraj was making cakes of cow dung. She went to her house and icomplained that Gyan Singh was abusing her, resultantly accused persons developed enmity against Gyan Singh. Due to fear he did not went to the police station in the night to lodge First Information Report, when villagers were willing to accompany him to the police station.
8. In his cross examination, P.W.1 admitted that earthen lamp was burning on the window. In the baithak wherein they were sleeping ,there were two windows and inside main door earthen lamp was burning in the room on window of northern side.He reached the police station at 5-6 A.M. but inspector was not there and had given report at 8 A.M. in the police station when inspector came. He admitted that windows in the baithak were open and there was no door in the windows. In his cross examination, P.W.1 further admitted that his house is situated at about 100 meters from the house of deceased Gyan Singh. His wife had gone to her parents house at the time of alleged incident. At that time Gyan Singh was aged about 35 years and his wife,Urmila was aged 32-33 years. In the room where there was also a 1/1/2 years old child of his aunt , Urmila who was also sleeping. Gyan Singh was occasional drinker but at the time of incident he had not consumed liquor. In the suggestion he stated that he used to sleep in the same room with his uncle and aunt. He used to ply tractor of Gyan Singh and his cultivation. He denied his illicit relationship with his aunt, Urmila and causing murder of his uncle, Gyan Singh, because of such relationship with Urmila. P.W.2, Rajendra, was stated to be grandfather of Gyan Singh, who used to reside in different room. Before the incident accused persons had never abused or beaten Gyan Singh.He could not mention ballam in the First Information Report due to nervousness. He admitted that his aunt, Urmila and P.W2 raised alarm but he could not mention the same in First Information Report. Apart from Rajendra and Hariom number of other villagers came at the time of incident. As soon as his uncle opened the latches of the door accused persons caught hold him and had beaten him. Then he raised alarm and witnesses came within 1-2 minutes and saw the incident. He admitted that he has not mentioned this fact in the First Information Report that witnesses had come inside the room.His uncle was wearing Kurta and Payjama wherein blood stains was there. The accused person had made him naked after beating. Prior to the incident Gyan Singh was implicated in a case but what was that case he could not state before the court.He admitted that there was no enmity with accused person earlier but after incident enmity has cropped up.He finally stated that he gave his torch to the inspector.
9. P.W.2, Rajendra Singh,deposed before the court that at the of incident he was in his house .After hearing the noise his wife who was sleeping with him, said that there noise is coming. He took his torch and went to house of Gyan Singh, where he saw Amar Singh catching hold of one hand of Gyan Singh and other hand of Gyan Singh was caught hold by Devendra. Ram Saran was catching hold of Gyan Singh. He was asking Raghuraj to assault Gyan Singh by ballam. Kehari was standing. Raghuraj caused injury to Gyan Singh by Ballam on his head which hit his neck.This incident took place inside the house of Gyan Singh and Hariom also came at the scene of occurrence. Both raised alarm and then accused persons ran away.Gyan Singh died on the spot. Accused persons belong to his village. He knows them well since before the time of incident. He had seen accused persons in the light of earthen lamp and torch. He had provided torch to the inspector. After preparing memo historch was returned but his signature was not taken on the memo prepared by the investigating officer.
10. In his cross examination P.W.2 admitted that he is residing with Raj Kumar, P.W.1, in the same house. Gyan Singh used to reside in different house. Gyan Singh was his nephew. There are two windows on eastern and southern side of the house of the Gyan Singh. There is no door in the eastern wall in the house of Gyan Singh. There are no doors and windows of his house.The door shown in the eastern wall by the investigating officer in the site plan is wrong.He reached the place of incident first and thereafter Hariom reached there. His wife got him awake after hearing the noise. He recognized voice of wife of the deceased , Urmila and P.W.1, Raj Kumar and hence he went there .There is no wall between the room of Gyan Singh and Khadanja road in front of his house. At the time of alleged incident Gyan Singh was wearing Kurta and underwear. He denied suggestion that he was not there at the time of incident.
11. P.W.3, Dr. Anoop Kumar, stated that deceased suffered one incised wound 3 cm x 1 cm x Cavity deep front of middle neck and two abrasions of 2cmx 2 cm and 4 cm. X 3cm on back of neck and left shoulder respectively. Mud was found on the dead body of the deceased. In internal examination windpipe of the deceased was found ruptured and left artery of the deceased was also found ruptured. Cause of death of deceased was found to be shock and haemorrhage as a result of antemortem injuries.
12. P.W.4, H.C., Harish Chandra, proved the lodging of First Information Report by the informant at 8.10 A.M. on 20.12.1995 and making entry in the general diary.
13. P.W.5, , investigating officer, proved record of his investigation and evidence collected by him during investigation. He denied that at the time of inquest, First Information Report was not lodged. During cross examination he admitted that he had shown the door in the house of the deceased and two windows without doors. He admitted that statement of the wife of the deceased, Urmila, was recorded by subsequent investigating officer after his transfer.He admitted making memo of recovery of torch but not taking the same in possession. He further stated that P.W.2 informed him that when he raised alarm Rajendra and Hariom came there.Rajendra was not eye witness of the incident.
14. P.W.6, Hari Nath Sharma, proved recording of the statement of the wife of deceased, Urmila and statements of other accused persons.
15. Learned counsel for the appellants has advanced following arguments:
(i) That there is unexplained delay in lodging the First Information Report. The incident is alleged to have taken place in the intervening night of 19/20.12.1995 between 2.30-3.00 A.M. but the First Information Report was registered on 20.12.1995 at 8.10 A.M. when the distance of the police station from the place of incident was only six kilometres. He has submitted that the delay in lodging the First Information Report assumed significance when P.W.1 explained that on account of fear, he did not lodged the First Information Report earlier but he admitted in his statement that villagers were ready to accompany him to the police station but on account of fear he did not went to police station at night;
(ii) that in the chik report the distance of police station is 6 kilometres, when according to the inquest report it is 8 kilometres. There is no mention of names of the accused in the inquest report nor there is mention of crime number on the photograph of dead body. P.W.5, investigating officer was cross examined on these points but he could not give satisfactorily reply to the questions put up before him in this regard. All the discrepancies in the police papers indicate that the First Information Report was ante- timed and was not in existence at the time of preparation of these papers. Nobody has seen the incident and First Information Report was lodged only on guess work;
(iii) that as per allegations in the First Information Report deceased heard some noise regarding presence of some people outside and when he opened the door, accused persons forced their way inside and caused his murder;
(iv) that the site plan prepared by the investigating officer, shows that deceased was sleeping in room situated in eastern side of his house which did not had any doors nor windows. P.W.1, Raj Kumar and P.W.2, Rajendra Singh , have admitted this fact in their cross examination that there was no wall between the Khadanja road and the room of deceased, Gyan Singh. Prosecution story is belied by the fact that there was no wall, not to say doors and windows, in the room where the deceased was sleeping with his wife in the night. Therefore prosecution case regarding opening of door by the deceased which allowed the entry of the accused inside the house was absolutely false;
(v) that there is single injury on the neck of the deceased as per doctor, P.W.3. The trachea of the deceased was found lacerated and carotid artery was found ruptured;
(vi) that First Information Report version and eyewitness account of the incident that the incident took place inside the room is doubtful. The autopsy doctor, P.W.3, has stated in his evidence that the dead body of the deceased was stained in mud but this fact was not disclosed in the inquest report. Deceased may have gone out in the field to urinate in the night and was murdered there by some one and thereafter his dead body was brought inside and the case with eyewitness account was set up. The urinary bladder of the deceased was found to be empty by the doctor, which proves that he had gone out to urinate;
(vii) that trial court charged the accused persons under section 302 I.P.C. simpliciter but has convicted them with aid of section 149 I.P.C. without altering or amending the charge under section 216 Cr.P.C. and recalling and re-examining the witnesses as per section 217 Cr.P.c., hence conviction of the appellants under section 302/149 I.P.C. cannot be sustained. The common object of six accused was not proved before the trial court;
(viii) that conviction of the appellant under section 302/149 I.P.C. is erroneous on another count also. None of them were assigned any specific role or overt act and were not alleged to be carrying any weapon. Subsequently P.W. 1, improved the prosecution case in his examination in-chief and stated that it was accused Raghuraj, who pierced Ballam in the neck of the deceased. Co-accused, Rakesh and Kehari Singh, were exhorting him. Co-accused, Amar Singh and Devendra Singh, were assigned the role of catching hold of hands of the deceased. The role of exhortation assigned to Khehari Singh and Rakesh is not convincing since if they had gone in the night to commit alleged offence with common object in planned manner, there was no need of exhortation of other co-accused which was sufficient for enabling the witnesses to wake up and see the incident;
(ix) that P.W.1, Raj Kumar, who was nephew of the deceased, Gyan Singh, has his own Pakka house at the distance of 100 meters from the house of deceased which he admitted in his statement before the trial court. The deceased, Gyan Singh, was 35 years of age and his wife, Urmila, was aged 32 years at the time of incident and why P.W.1, who was nephew of Gyan Singh, was sleeping in their house has not been explained. It has been submitted that presence of P.W.1, in the house of the deceased is not explained;
(x) that wife of the deceased, Urmila, who was admittedly present with the deceased and as per First Information Report version got awake at the time of incident, was not produced as witness before the trial court. P.W.1, Raj Kumar is real nephew of the deceased and P.W.2, Rajendra Singh is grand father of the deceased. P.W.5, M.P. Singh, has stated in his statement that P.W.2, Rajendra Singh, was not an eyewitness of the case. The conviction of the appellants on the basis of testimony of P.W.1, who was an interested and partisan witness, is highly unsafe and not sustainable. Wife of the deceased, Smt. Urmila was examined by the P.W.6, Inspector,Hari Nath Sharma during the investigation and her statement under section 161 Cr.P.C. was recorded but her non-examination before the trial court creates doubt about the prosecution case. Smt. Urmila was the best witness of the case, whose testimony was never got recorded before the trial court;
(xi) that the prosecution has failed to prove that there was sufficient light in night to identify the accused persons in the light of earthen lamp. Prosecution story does not inspires confidence. The earthen lamp was stated to be kept on window (Jangala) when it was proved that there is no window or door in the room. The story of seeing the accused persons in the torch light was subsequently cooked up but no torch was recovered by the investigating officer;
(xii) that the time of incident alleged in the First Information Report makes the case doubtful. The autopsy doctor, P.W.3, found watery fluid with small food particles in the stomach of the deceased and his bladder was empty, which proved that incident had taken place at about 11-12 P.M.. In villages people take dinner by 6-7 P.M. The doctor admitted that food takes six hours time to get fully digested but food was not found fully digested in the stomach of the deceased since his stomach was not empty between 2.30-3.00 A.M. ;
(xiii) that accused, Raghuraj, had allegedly pierced Ballam in the neck of the deceased, but the injury found was incised in nature which the doctor admitted cannot be caused by Ballam which causes punctured wound.
(xiv) that P.W.1 stated that deceased was wearing Kurta and Pajama at the time of alleged incident, when as per inquest report, he was found to be wearing only shirt and underwear. P.W. 3, doctor, found that the deceased was found wearing Kurta and Underwear. P.W. 1 stated in his statement that the accused persons disrobed the deceased after beating him but he did not explained why dead body of deceased was not found to be naked and found wearing Kurta and underwear. He has submitted that prosecution story is doubtful;
(xv) that motive of the crime alleged that the daughter-in-law (Bahu) of the co-accused, Raghuraj, had complained that while she was making cakes of cow dung, deceased had abused her and therefore six persons committed murder of the deceased does not sounds credible. There is no evidence that any altercation took place after deceased abused the alleged women. Directly murder of the deceased was caused by six persons. He has further submitted that P.W.1 was aged about 24 years and admitted that his wife had gone to her parental house on the night of the incident, therefore, he was sleeping in the house of deceased and his wife Urmila;
(xvi) that there was illicit relationship of P.W.1, aged about 29 years, with wife of the deceased, who was only aged about 32 years and P.W.1 with the help of wife of deceased may have caused murder of the deceased in the night. This was the reason why the wife of deceased never appeared in the witness box. This was also the reason why First Information Report was not promptly lodged. Number of co-villagers were alleged to have seen the incident but none of them were named and examined before the trial court. Prosecution case has not been proved beyond reasonable doubt. The defence has pointed out sufficient discrepancies in the prosecution case, which is sufficient for acquitting the surviving appellants of all the charges.
16. Learned counsel for the informant and learned A.G.A have vehemently opposed the submissions made by the learned counsel for the appellants. They have submitted that hyper-technical arguments have been made. The torch was recovered and exhibited by the investigating officer as exhibit-12. It has further been submitted that all the accused persons had formed unlawful assembly and committed alleged offence with common object.
17. They have further been submitted that non framing of charge under section 149 I.P.C. by the trial court will not be fatal for the prosecution case since section 149 I.P.C. does creates a separate offence but only declares vicarious liability of all the members of unlawful assembly who acted done with common object. Reliance has been placed in the judgement of Apex court in Vinubhai Ranchhodbhai Patel vs Rajivbhai Dudabhai Patel,AIR, 2018 SC. 2472.They have submitted that allegation of illicit relationship of the P.W.1 with wife of deceased, Smt. Urmila, is figment of imagination and no evidence was led to prove the same. P.W.1 has explained why he was present in the house of his uncle and aunt on the fateful night by deposing that his wife had gone to her parental house and therefore he was present in the house of the deceased. They have submitted that deceased was drunkard and has misbehaved with daughter-in-law of the appellant, Raghuraj, hence he was done to death. It has finally been submitted that prosecution has proved the case against the appellants beyond doubt and hence the judgement and order of conviction and sentence deserves to be upheld by this court.
18. After hearing rival contentions this court finds that six persons have been implicated in this case for committing the offence under section 302/149 I.P.C. Even if it is accepted that section 149 I.P.C. does not creates separate offence but only declares vicarious liability of all the accused of unlawful assembly for the act done with common object, implication would not be justified unless the ingredients for constituting the offence under section 149 I.P.C. are established before the court.
19. Section 149 I.P.C provides for constructive liability to every person of an unlawful assembly. If an offence is committed by any member thereof in prosecution of 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. Formation of unlawful assembly having its common object and knowledge of common object are matters of fact which are required to be proved by the prosecution beyond all reasonable doubt for securing conviction of an accused under Section 149 I.P.C. There cannot be any straight jacket formula to arrive at a finding as to who was the member of unlawful assembly and for which object the same was formed. It can be inferred and proved by the cogent evidence only.
20. Section 149 I.P.C has following three essentials (i) there must be unlawful assembly; (ii) commission of offence may be by any member of unlawful assembly; (iii) such offence must have been committed in prosecution of the common object of the assembly, or must be such as member of the assembly knew to be likely to be committed.
21. The concept of constructive liability must not be so stretched as to lead to false implication of innocent person or if general allegations are made against large number of accused, the Court has to be cautious unless reasonable direct and indirect circumstances lend assurance to the prosecution case that all the accused shared common object of unlawful assembly and hence their implication / conviction not be justified, as held by the Apex Court in the case of Subal Ghorai and others Vs. State of West Bengal, 2013(4) SCC 607. Ready reference to paragraph 53 would be relevant :-
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, 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 of the 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 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."
(13) Apex Court has also cautioned that when there is sudden action by one member in the assembly, all are not liable. In the case of Roy Fernandes Vs. State of Goa, 2012(3) SCC 221, it was held that a group attack on the victim is not the only decisive factor to infer common object of the unlawful assembly. It would be useful to refer to paragraph 27 to 33 in this context :-
27. This Court has in a long line of decisions examined the scope of Section 149 of the Indian Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149 of the IPC.
28. In Chikkarange Gowda & Ors. Vs. State of Mysore [AIR 1956 SC 731] this Court was dealing with a case where the common object of the unlawful assembly simply was to chastise the deceased. The deceased was, however, killed by a fatal injury caused by certain member of the unlawful assembly. The court below convicted the other member of the unlawful assembly under Section 302 read with Section 149 IPC. Reversing the conviction, this Court held:
"9. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object.
In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149 Indian Penal Code was not justified in law."
29. In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai Vs. Emperor [AIR 1946 Pat 242]:
"Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise".
30. This Court then reiterated the legal position as under:
"9........The question is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 IPC. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, much less that they would be used in order to cause death."
31. In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572] this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of IPC was, therefore, attracted and the conviction of the members of the assembly for murder legally justified.
32. This Court analysed Section 149 in the following words:
"6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. 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. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 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 when in a village a body of heavily armed men set out to take a woman by force, 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. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all."
33. In Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR 1960 SC 725], this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object.
As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar - Behera and Others Vs. State of Orissa [2002 (8) SCC 381] and Bishna Alias Bhiswadeb Mahato and Others Vs. State of West Bengal [2005 (12) SCC 657] similarly explain and reiterate the legal position on the subject.
22. Common object has to be ascertained from the member-ship, weapon used and the nature of injuries as well as other circumstances as held by the Apex Court in the case of Haramant Laxmappa Kukkadi Vs. State of Karnataka, 1994(1) SCC 736..
23. This court finds from the above discussion that there is allegation that deceased misbehaved with wife/daughter-in-law of Raghuraj Singh, appellant no.2. No evidence was led to prove that other five appellants constituted unlawful assembly with Raghuraj Singh and they also shared common object with Raghuraj Singh.It was required to be proved by the prosecution that the alleged offence was committed by all the members of unlawful assembly in prosecution of common object. Mere presence in an assembly without proof of common object cannot be stretched to such an extent so as to implicate the innocent person as held by the Apex Court in the case of Subal Ghorai and others (Supra).Trial court has not recorded any such finding that all the accused having shared common object with co-accused Raghuraj Singh and had formed unlawful assembly for executing the same.The Apex Court has also held in the case of Haramant Laxmappa Kukkadi (Supra) that common object has to be ascertained from the membership, weapon used and the nature of injuries as well as other circumstances. In the present case only weapon allegedly used was Ballam but injuries on the person of the deceased did not corroborated the use of the aforesaid weapon. The injury on neck of the deceased which proved fatal for his life was incised in nature, when the Ballam can only cause piercing injury. Hence implication of all the appellants for committing offence of murder with aid of section 149 I.P.C. cannot be sustained. The role of catching hold of the deceased was assigned to appellants, Amar Singh and Devendra Singh; role of exhortation was assigned to appellant Rakesh Kumar and Kehari and Raghuraj Singh was assigned the role of causing fatal injury on the neck of the deceased by Ballam by P.W.2. P.W.1 has also assigned them similar roles which may have found favour with the trial court to convict them under section 302/149 I.P.C.Apex court in the case of Balwantbhai B. Patel Vs. State of Gujrat and others reported in 2009-0-Supreme Court (SC)1557, has held that allegation of catching hold or exhortation are invariably made when number of injuries on injured party do not co-relate with number of co-accused or in the alternative in an attempt to rope in as many persons as possible from other side. Apex court acquitted, the accused who was implicated for committing offence under section 302 I.P.C. with the help of section 34 I.P.C.
24. This court further finds that most of the arguments raised by the learned counsel for the appellants have not been replied by the other side such as the weakness of motive, delay in lodging of First Information Report, falacity of arguments regarding the opening of door, when no door was found in the house of the deceased, semi -digested food in the stomach of the deceased , his bladder being empty, non production of wife of the deceased as witness by the trial court; discrepancy in the injury and weapon allegedly used in the crime;difference of cloths founds on the body of the deceased.
25. The Apex court in the case of The State of U.P. and another Vs. Jaggo alias Jagdish and others, AIR 1971, SC 1586 has held that witness whose evidence is essential for unfolding the narrative must be produced in evidence. Non-production of Urmila, the wife of deceased, before the court proves that prosecution case was doubtful. She was the best witness to have proved the manner of incident and the roles of accused therein.
26. In view of the above consideration, the judgement and order of the trial court cannot be sustained and is hereby set aside. The surviving appellant nos. 3, 5, and 6, namely, Devendra Singh, Kehri Singh and Rakesh Kumar, are acquitted of charges under section 302/149 I.P.C. They are on bail. Their bail bonds are cancelled and sureties are discharged. The amount of fine, if deposited by the surviving appellants, shall be refunded to them.
27 Certify the judgement to the lower court within a week for compliance and making entry of decision in the register. The record of the case be also transmitted to the court below immediately. Compliance of section 437-A shall be ensured by the court below The compliance shall be reported by the court below to this court within four weeks from the date of receipt the copy of this judgement.
28 Criminal Appeal is allowed.
Order Date :- 26.2.2024
Atul kr. Sri.
(R.M.N. Mishra,J) (Siddharth,J.)