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As noted supra, accused persons pleaded innocence and false implication due to animosity persisting between the parties. Three of the accused persons pleaded alibi to improbabilise their physical presence at the site of occurrence. Out of the prosecution witnesses, seven i.e. PWs 2 to 5, 6, 10, 14 were stated to be eyewitnesses. On consideration of the evidence on record, learned 3rd Additional Sessions Judge, Sitamarhi as afore-noted convicted 13 accused persons, acquitted two. In respect of three who died during the pendency of the appeal before the High Court the appeals abated. The convicted accused preferred three separate appeals before the High Court which by the impugned judgment disposed of them.

In support of the appeals, learned senior counsel submitted that the appellants have been convicted by application of Section 149 IPC. The ingredients necessary to bring in application of the said provision have not been established. The plea of alibi has been accepted in respect of two accused persons. Though, appellant Mahendra Rai stood at a better footing, his plea of alibi has been rejected on erroneous premises. Evidence was produced and a witness was examined to substantiate his plea of alibi which has been discarded without any basis. Though there were large number of injuries, no particular one has been attributed to any particular accused, except accused Deo Sharan Rai (A-1), Kamal Rai (A-7) and Satya Narain Rai (A-9). Accused Kamal Rai has died and the rest two are appellants 3 and 5 respectively in these appeals. The motive which was sought to be indicated as the foundation of the crime is too scarce and in fact Deo Narain Rai(PW-11) who is not an eyewitness and spoke about the motive of Kamal Rai has been disbelieved by both the trial Court and the High Court. The witnesses are closely related and in fact PW-11 has been discarded as unreliable. The investigation was more than perfunctory and the Courts below should have taken note of that. Identification in a mob is highly improbable. When plea of alibi has been accepted it clearly indicates the extent of false implication and the design therefor. One of the accused Rabindra Pandey was a child at the time of occurrence. Though he should have been separately dealt with under the Children's Act and that having not been done his conviction is vitiated. The genesis as described by the prosecution is highly improbable. It is not believable that the deceased was going to offer puja in a temple which prima facie appears to be without a deity. The place of occurrence has been chosen in a manner as would give some credence to the evidence of some persons like Pujari Dukha Sah (PW-6). The evidence of prosecution is to the effect that all the accused persons came from the house of accused Kamal Rai. The visibility from the place where PW-6 claims to have seen them is well nigh impossible. There is no evidence to show that Kamal Rai has disclosed to others what he proposed to do, or there was sharing of common object. On the other hand, even if it was a case of similar or common intention, at the most, the prosecution could press into service Section 34 IPC for which there was no charge and for bringing in application of Section 34 IPC participation is a must. The allegations of a very general and repetitive nature have been made against all the accused persons. There is no evidence that Satya Narain Rai was carrying a country made gun and therefore the conviction under Section 27 of the Arms Act is not maintainable.

In response, Mr. B.B. Singh, learned counsel for the State submitted that the common object which sine qua non have application under Section 149 IPC has been clearly brought out. The unimpeachable evidence is that all the accused persons armed with deadly weapons came from outside the village in a group. The deceased was dragged first and given lathi blow by accused Kamal Rai which was a fatal one and when his son (PW-14) wanted to protect gun was fired to dissuade others from coming to his rescue. The evidence was more than sufficient to attract Section 149. So far as the alleged interestedness of the witnesses is concerned, it is trite law that if after careful analysis and scrutiny, the evidence is found credible, the conviction can be maintained. Additionally, there were witnesses who were not in any manner related. So far as the question of alibi is concerned, when presence of the concerned accused is satisfactorily established, the Court would be slow to believe the counter evidence unless it is of such quality as would create a reasonable doubt on the minds of the Court that the prosecution version was not cogent. The trial Court and the High Court have analysed in detail the plea of alibi and have discarded it in view of the evidence on record. So far as the claim of accused Rabindra Pandey to be a minor is concerned, the order dated 27.7.1984 passed by the trial Court clearly shows that it had discarded the plea. In fact the school records clearly indicated that he was more than 18 years of age on the date of occurrence. The father filed an affidavit with oblique motive to say that there was a wrong recording in the school register. Apparently, such a plea is not acceptable and the order dated 27.7.1984 was passed much before the completion of trial and the same having not been assailed has become final. Therefore, neither the trial Court nor the High Court has dealt with this plea which even does not appear to have been raised before the said Courts.

Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. [See Chikkarange Gowda and others v. State of Mysore (AIR 1956 SC 731)] Therefore, Section 149 has been rightly applied when the factual position as highlighted by the eyewitnesses is considered. Even if the absence of motive as alleged is accepted that is of no consequence and pales into insignificance when direct evidence establishes the crime. The first information report was lodged almost immediately and whatever elaboration has been done is really very minor in nature. Mere seemingly inconsistencies which are not contradictions or omissions or are of trivial nature do not affect substratum of the prosecution version. That is the situation in the case at hand. The number of injuries even if not co-related to the number of assailants is not material. [See Leela Ram (dead) through Duli Chand v. State of Haryana and Anr. (AIR 1999 SC 3717)] Similarly, even if there are irregularities or illegalities in the conduct of investigation that is of no consequence. [See State of Rajasthan v. Kishore (AIR 1996 SC 3035) and State of Karnataka v. K Yarappa Reddy (AIR 2000 SC 185)] For discarding the plea of alibi the trial Court and the High Court have given cogent reasons. Merely because the plea was accepted in respect of two accused, that cannot be a ground for acceptance of the plea of alibi so far as accused Mahendra Rai is concerned. It is interesting to note that the date of occurrence is 17.8.1983 and the accused Mahendra Rai is supposed to have served from 10.8.1983 onwards till the date of occurrence. The trial Court noticed that there was no material to show that on the date of occurrence he was present in the school throughout and even no appointment letter showing appointment was produced. This is also evident from the certificate exhibited. The certificate was to the effect that he was on duty as a guard for a period from 10.8.1983 to 17.8.1983 on a regular basis. It is inconceivable that a person was appointed for one week on a regular basis. That is an additional ground to reject the plea of alibi. The signatures of the appellant on the attendance register were also found to be not acceptable.