Kuldip Yadav & Ors vs State Of Bihar

Kuldip Yadav & Ors. .... Appellant(s)

Versus

State of Bihar .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 532 OF 2005

AND

CRIMINAL APPEAL NO. 534 OF 2005

J U D G M E N T

P.Sathasivam,J.

1) These appeals are directed against the common judgment

and final order dated 26.09.2003 passed by the Division

Bench of the High Court of Patna in Criminal Appeal Nos. 293,

307, 311 and 371 of 2000 whereby the High Court upheld the

judgment and order dated 26/27.06.2000 passed by the

Ist Addl. District & Sessions Judge, Nawadah in Sessions Trial

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No. 333/97/40/97 convicting the appellants herein for the

offence punishable under Section 302 of the Indian Penal

Code (in short the "IPC") read with Section 27 of the Arms Act,

1959, Section 302 read with Section 149 of the IPC and

Section 324 read with Section 149 of the IPC and maintained

the sentences imposed upon them.

2) Brief facts:

(a) The present group of appeals arises out of FIR No. 11 of

1997 registered at Police Station Govindpur, at the instance of

one Naresh Yadav (PW-9) leading to Session Trial No.

333/97/40/97 at the Court of Ist Addl. District & Sessions

Judge, Nawadah.

(b) There was a cross FIR No. 12 of 1997 registered at the

same Police Station at the instance of one Sunil Yadav

(accused No.9 in FIR No. 11 of 1997) which was lodged at the

instance of the accused in FIR No. 11 of 1997.

(c) According to Naresh Yadav (PW-9)-the informant in FIR

No. 11 of 1997, on 28.04.1997, at 9:00 a.m., all of a sudden,

Brahamdeo Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,

Kuldeep Yadav, Sudhir Yadav, Sunil Yadav s/o Bale Yadav,

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Bale Yadav, Shiv Nandan Yadav, Sunil Yadav s/o Musafir

Yadav and Suraj Yadav armed with Saif, Bhala, lathis and gun

came in a mob where Suresh Yadav- informant's elder brother,

since deceased, was getting his diesel machine repaired

through a mechanic Mohan Yadav. It was alleged that

accused Brahamdeo Yadav @ Bhonu Yadav shot a fire at

Suresh Yadav in the abdomen and when he went to help him,

Sunil Yadav gave a saif blow causing injury on his lips. It was

also alleged that on hearing alarm Munshi Yadav, Ganuari

Yadav and Bindeshwar Yadav had come and they were also

subjected to assault by the accused persons. He also told that

the victim Suresh Yadav died on the way while being taken to

the hospital.

(d) On the basis of the farde bayan of Naresh Yadav-the

informant, FIR No. 11/97 was registered with Govindpur

Police Station under Sections 147, 148, 149, 323, 324, 307

and 302 IPC against Brahamdeo Yadav, Sunil Yadav s/o Bale

Yadav, Darogi Mahto, Maho Yadav, Paro Mahto, Kuldeep

Yadav, Sudhir Yadav, Bale Yadav, Shiv Nandan Yadav and

Suraj Yadav. Sunil Yadav s/o Musafir Yadav was instituted.

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On 29.04.1997, S.I. Anil Kumar Gupta recorded the statement

of Sunil Yadav s/o Musafir Yadav at Nawadah Sadar Hospital

and on the basis of his statement FIR No. 12/97 was

registered with Govindpur Police Station under Sections 147,

148, 149, 323, 324, 307 and 447 IPC against (i) Upendra

Yadav (ii) Rambalak Yadav (iii) Basudev Yadav (iv) Anil Yadav

(v) Ganuari Yadav (vi) Damodar Yadav (vii) Suresh Yadav (viii)

Umesh Yadav (ix) Muni Yadav (x) Naresh Yadav and (xi)

Manager Yadav. The investigations in both the FIRs were

taken by S.I. Mohd. Shibli, Officer-in-charge of Govindpur

Police Station.

(e) After investigation, charge sheet No. 12/97 was

submitted in FIR No. 11/97 and charge sheet bearing No.

36/97 was submitted in FIR No. 12/97 against the accused

persons and thereafter the case was committed to the Court of

Sessions Judge and registered as Sessions Trial No.

333/97/40/97.

(f) The prosecution examined ten witnesses in support of its

claim, namely, Dr. Bipul Kumar, PW-1, Dr. R.K. Bibhuti, PW-

2, Ganuari Yadav, PW-3, Bindeshwar Prasad @ Manager

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Yadav, PW-4, Basudeo Yadav, PW-5, Kesho Yadav, PW-6,

Munshi Yadav, PW-7, Minta Devi, PW-8, Naresh Yadav, PW-9

and Md. Shibli, Officer-in-Charge, Nawadh PS. PW-10.

(g) After completion of the trial, learned Sessions Judge

convicted all the accused for the offences punishable under

Sections 302, 324 read with 149 IPC and sentenced them to

undergo rigorous imprisonment for life and further

imprisonment of two years.

(h) Aggrieved by the order passed by the trial Judge, the

accused preferred different sets of appeals, namely, Criminal

Appeal Nos. 293, 307, 311 and 371 of 2000 before the High

Court of Patna. By the impugned judgment and order, after

accepting the prosecution case, the Division Bench of the High

Court upheld the judgment of the Sessions Judge and

dismissed all the appeals.

(i) Aggrieved by the decision of the High Court, Paro Mahto

(A5), Kuldip Yadav (A6), Sudhir Yadav (A7) filed Criminal

Appeal No. 531 of 2005, Brahamdeo Yadav (A1) filed Criminal

Appeal No. 532 of 2005 and Darogi Mahto (A2), Bale Yadav

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(A8) and Suraj Yadav (A11) filed Criminal Appeal No. 534 of

2005 before this Court.

3) Heard Mr. Rajan K. Chourasia learned counsel for the

appellants in Criminal Appeal Nos. 531 & 534 of 2005, Mr.

J.P.N Gupta, learned amicus curiae for the appellant in

Criminal Appeal No. 532/2005 and Mr. Manish Kumar,

learned counsel for the respondent-State.

FIR Nos. 11/97 and 12/97 4) On the basis of the farde bayan of the informant Naresh

Yadav, F.I.R. No. 11/97 was registered with Govindpur P.S.

under Sections 147, 148, 149, 323, 324, 307 and 302 IPC

against Brahmdeo Yadav, Sunil Yadav, Darogi Mahto, Maho

Yadav, Paro Mahto, Kuldeep Yadav, Sudhir Yadav, Bale Yadav,

Shiva Nandan Yadav and Suraj Yadav. Sunil Yadav was

instituted.

5) On 29.04.1997, about 5:30 a.m., at Nawada Sadar

Hospital, SI Anil Kumar Gupta recorded the statement of Sunil

Yadav s/o Musafir Yadav and on the basis of his statement

FIR No 12/97 was registered with Govindpur P.S under

Sections 147, 148, 149, 323, 324, 307, 447 IPC against

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Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,

Manager Yadav, Ganuari Yadav, Damodar Yadav, Suresh

Yadav, Umesh Yadav, Muni Yadav and Naresh Yadav.

6) The investigation in both FIRs was taken by SI Md.

Shivli, Officer-in-charge, Govindpur Police Station. The

charge-sheet bearing no. 12/97 was submitted in FIR No.

11/97 P.S. Govindpur, on 30.06.1997 against Brahamdeo

Yadav, Sunil Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,

Kuldeep Yadav, Sudhir Yadav, Bale Yadav, Shivan Yadav and

Suraj Yadav and Sunil Yadav who was later instituted.

7) The charge sheet bearing no. 36/97 was also submitted

in FIR No. 12/97 P.S. Govindpur, on 17.12.1997 against

Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,

Manager Yadav, Ganuari Yadav, Damodar Yadav, Umesh

Yadav, Muni Yadav and Naresh Yadav except Suresh Yadav

s/o Kesho Yadav as he had died. The cognizance was taken

by the Court and charge was framed under Section 307 and

149 IPC.

8) It was highlighted that the prosecution witnesses are not

certain about the place of death of the deceased Suresh Yadav.

7 At least three eye-witnesses stated, either in their statement

under Section 164 of the Code of Criminal Procedure, 1973 (in

short the "Code") or during their examination under Section

313 that the deceased died at the spot which is contrary to the

statement of Naresh Yadav (PW-9) eye-witness who stated that

he died on the way to hospital and which is consistent with

the statement of Sunil Yadav informant in FIR No 12/97.

Sunil Yadav stated in his farde bayan that during altercation

Suresh Yadav received fire-arm injury which was shot by

Upendra Yadav and died. A perusal of the documents and

cross examination on behalf of the accused persons

probabilize the version of the accused as set up in FIR No.

12/97 which culminated into charge sheet No. 36/97 against

the informant/prosecution party.

Procedure in respect of cross cases

9) In order to understand the above issue, it is useful to

refer Section 223 (d) of the Code which reads as under:

"223. What persons may be charged jointly.--The

following persons may be charged and tried together,

namely:--

(a) xx

(b) xx

(c) xx

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(d) persons accused of different offences committed in the

course of the same transaction;

(e) xx

(f) xx

(g) xx"

10) The above provision has been interpreted by this Court in

the following decisions. In Harjinder Singh vs. State of

Punjab and Ors. (1985) 1 SCC 422, the question before the

Court was whether under Section 223 of the Code it is

permissible for the Court to club and consolidate the case on a

police challan and the case on a complaint where the

prosecution versions in the police challan case and the

complaint case are materially different, contradictory and

mutually exclusive. The question was whether the Court

should in the facts and circumstances of the case direct that

the two cases should be tried together but not consolidated i.e.

the evidence be recorded separately in both cases and they

may be disposed of simultaneously except to the extent that

the witnesses for the prosecution which are common to both

may be examined in one case and their evidence be read as

evidence in the other. After analyzing the factual details, this

Court has concluded:-

9 "8. In the facts and circumstances of this particular case

we feel that the proper course to adopt is to direct that the

two cases should be tried together by the learned

Additional Sessions Judge but not consolidated i.e. the

evidence should be recorded separately in both the cases

one after the other except to the extent that the witnesses

for the prosecution who are common to both the cases be

examined in one case and their evidence be read as

evidence in the other. The learned Additional Sessions

Judge should after recording the evidence of the

prosecution witnesses in one case, withhold his judgment

and then proceed to record the evidence of the prosecution

in the other case. Thereafter he shall proceed to

simultaneously dispose of the cases by two separate

judgments taking care that the judgment in one case is not

based on the evidence recorded in the other case....."

(underlining supplied)

11) In Balbir vs. State of Haryana & Anr. (2000) 1 SCC

285, this Court considered clauses (a) and (d) of Section 223 of

the Code and held that the primary condition is that persons

should have been accused either of the same offence or of

different offences "committed in the course of the same

transaction". The expression advisedly used is "in the course

of the same transaction". That expression is not akin to

saying "in respect of the same subject-matter". For several

offences to be part of the same transaction, the test which has

to be applied is whether they are so related to one another in

point of purpose or of cause and effect, or as principal and

10

subsidiary, so as to result in one continuous action. Thus,

where there is a commonality of purpose or design, where

there is a continuity of action, then all those persons involved

can be accused of the same or different offences "committed in

the course of the same transaction".

12) In Lalu Prasad vs. State thr. CBI (2003) 11 SCC 786,

this Court held that amalgamation of cases under Section 223

is discretionary on the part of trial Magistrate and he has to be

satisfied that persons would not be prejudicially affected and

that it is expedient to amalgamate cases.

13) Regarding the argument based on Section 210(2) of the

Code, it is useful to refer the decision of this Court reported in

Pal @ Palla vs. State of U.P. (2010) 10 SCC 123 which reads

as under:-

"27. Sub-section (2) of Section 210 provides that if a report

is made by the investigating officer under Section 173 and

on such report cognizance of any offence is taken by the

Magistrate against any person, who is an accused in a

complaint case, the Magistrate shall inquire into or try the

two cases together, as if both the cases had been instituted

on a police report. Sub-section (3) provides that if the police

report does not relate to any accused in the complaint case,

or if the Magistrate does not take cognizance of any offence

on a police report, he shall proceed with the inquiry or trial

which was stayed by him, in accordance with the provisions

of the Code.

11

28. Although it will appear from the above that under

Section 210 CrPC, the Magistrate may try the two cases

arising out of a police report and a private complaint

together, the same, in our view, contemplates a situation

where having taken cognizance of an offence in respect of an

accused in a complaint case, in a separate police

investigation such a person is again made an accused, then

the Magistrate may inquire into or try together the complaint

case and the case arising out of the police report as if both

the cases were instituted on a police report. That, however,

is not the fact situation in the instant case, since the

accused are different in the two separate proceedings and

the situation has, in fact, arisen where prejudice in all

possibility is likely to be caused in a single trial where a

person is both an accused and a witness in view of the two

separate proceedings out of which the trial arises.

30. .....As was observed in Harjinder Singh case1 clubbing

and consolidating the two cases, one on a police challan and

the other on a complaint, if the prosecution versions in the

two cases are materially different, contradictory and

mutually exclusive, should not be consolidated but should

be tried together with the evidence in the two cases being

recorded separately, so that both the cases could be

disposed of simultaneously."

14) In the case on hand, we have already noted that the

investigation was conducted by the same I.O. in respect of the

incident that took place on 28.04.1997 at Khalihan. Though

in the cross-case, that is, FIR No. 12/97, a complaint was

made on the next day i.e. on 29.04.1997 at about 5:30 A.M.,

from the materials available, both the cases relate to the

incident that took place at 9 A.M. on 28.04.1997 which is also

clear from the following information.

12 FIR No. 11/97 P.S. GOVINDPUR FIR No. 12/97 P.S.

GOVINDPUR

Informant-Naresh Yadav (PW-9) Informant-Sunil Yadav (A9 in

FIR 11/97)

Chargesheet submitted on 30.06.1997 Chargesheet submitted on

Charge was framed on 19.03.1999 17.12.1997

Date of Judgment of Trial Court: 27.06.2000

Date of Judgment of Trial

Court: 18.11.2009

Accused Persons Accused Persons

1. Brahamdeo Yadav @ Bhonu Yadav (Gun) 1. Upendra Yadav (Pistol)

2. Darogi Mahto (Gun) 2. Rambalak Yadav (Gun)

3. Maho Yadav (Gun) 3. Basudev Yadav

4. Sunil Yadav s/o Bale Yadav (Gun) (Gandassa)

5. Paro Mahto (Lathi) 4. Anil Yadav (Gandassa)

6. Kuldip Yadav (Gandassa) 5. Bindeshwar Yadav @

7. Sudhir Yadav (Bhala) Manager Yadav

8. Balle Yadav (Gandassa) (Gandassa)

9. Sunil Yadav s/o Musafir Yadav (Saif) 6. Ganori Yadav

(Informant in FIR No. 12/97) (Gandassa)

10. Shivan Yadav (Gandassa) 7. Damodar Yadav (Stick)

11. Suraj Yadav (Bhala) 8. Suresh Yadav (Stick)

9. Umesh Yadav (Stick)

10. Muni Yadav

(Gandassa)

11. Naresh Yadav

(Gandassa)

Injury to deceased Suresh Injured Person

1. An oral lacerated wound of =" diameter 1. Brahamdeo Yadav @

With inverted and charred margin, =" Bhonu Yadav (A1 in

right to umbilicus of uncertain depth i.e. FIR 11/97)

wound of entry 2. Sunil Yadav (A9 in FIR

2. Multiple bruises of size 3" x 2" to 1" x =" 11/97)

four 3. Musafir Yadav

in number over back right lower chest and

abdomen

Injured Persons

1. PW-3 Ganauri Yadav (A6 in FIR 12/97)

2. PW-4 Bindeshwar Yadav @ Manager

13

Yadav (A5 in FIR 12/97)

3. PW-7 Munshi Yadav (A10 in FIR 12/97)

4. PW-9 Naresh Yadav (A11 in FIR 12/97)

15) In view of the above factual details coupled with the

statements made by prosecution witnesses and in the light of

the principles enunciated by this Court, the Investigating

Officer ought to have brought to the notice of the trial Judge

about the two FIRs arising out of the same incident to avoid

gross injustice to the parties concerned.

Discrepancies in the prosecution witnesses

16) Among various witnesses examined by the prosecution, it

heavily relied on the evidence of Naresh Yadav (PW-9), Ganauri

Yadav (PW-3), Bindeshwar Yadav (PW-4), Kesho Yadav (PW-6),

Munshi Yadav (PW-7), Minta Yadav (PW-8) and Dr. R.K.

Bibhuti (PW-2).

17) First, let us discuss the evidence of Naresh Yadav (PW-9).

He is the informant and Suresh Yadav- the deceased was his

brother. According to him, on Monday, i.e. on 28.04.1997, he

along with Suresh, Ganauri Yadav and Bindeshwar Yadav

were busy in getting the diesel machine repaired. Brahmdeo

14

Yadav, Darogi Mahto, Sunil S/o Bale Yadav, Maho Yadav,

Kuldeep Yadav, Bale Yadav, Suraj Yadav, Shiv Nandan Yadav,

Sunil Yadav S/o Musafir Yadav, Sudhir Yadav and Paro

Mahto, total 11 persons forming a group came there and

surrounded them. Brahmdeo Yadav, Sunil Yadav, Darogi

Mahto and Maho Yadav were armed with rifle. Bale Yadav,

Kuldeep Yadav, Shiv Nandan Yadav and Suraj Yadav were

armed with Gandassa. Sunil Yadav S/o Musafir Yadav was

having saif in his hand. Sudhir Yadav was having spear with

him and Paro Mahto was having lathi in his hand. The

abovesaid persons surrounded them whereupon they started

running when Brahmdeo Yadav fired shot from rifle hitting the

abdomen of Suresh Yadav. He further deposed that when he

went to help Suresh to get up, Sunil Yadav (A-4) using his saif

hit him on his upper lip. Bale Yadav (A-8) gave a Gandassa

blow on the neck of Ganauri Yadav and while stopping the

blow with his right hand, he sustained injury on his palm.

Kuldeep Yadav also gave him a Gandassa blow on the right

hand. Shiv Nandan and Suraj Yadav too gave Gandassa blows

to Ganauri Yadav. Sudhir Yadav using Gandassa hit on the

15

forehead of Bindeshwar Yadav. Kuldeep Yadav gave gandassa

blow to Munshi Yadav. Paro Mahto also beat Ganauri Yadav

with lathi. While they were taking Suresh to Govindpur

Hospital, just after some distance, he died on the way. When

they reached Govindpur Hospital, S.I. recorded his statement.

In his statement under Section 164 of the Code, he has not

mentioned all the above details. According to him, Suresh was

alive at the spot but he died on the way to Govindpur Hospital.

Even, in respect of use of weapons by the accused, he was not

consistent with his earlier statement made under Section 164

of the Code. He also admitted that S.I. seized blood stained

earth in his presence. He also stated that even though S.I.

saw the clothes having blood spots but he did not seize them.

He also asserted that at the relevant time, he was repairing

diesel engine and Mohan-Mechanic was present at that time.

In cross-examination, he also admitted that there is another

counter case against the very same incident and he informed

the court that on that day he did not see any injury on the

person of Brahmdeo (A-1), Sunil Yadav (A-9) and Musafir

Yadav. He also answered that when Suresh was running

16

ahead of all of them, he was hit by a bullet on his abdomen. It

is not the case of any one that Suresh was running towards

the accused. On the other hand, it is their definite case that

the accused persons were chasing and Suresh and others were

running to escape from them. In such circumstances, there is

no plausible explanation how the bullet hit Suresh Yadav - the

deceased, on his abdomen. From his evidence, it is clear that

though diesel mechanic-Mohan was present, he denied his

relationship with him in the statements made later on. It was

put to him that incident did not actually take place as stated

and all accused were not present. It is also clear from his

evidence that injury on the accused was not seen by him.

18) The next witness heavily relied on by the prosecution is

Munshi Yadav (PW-7). According to him, accused persons

were armed and Brahmdeo Yadav (A1) fired a shot from gun

which hit Suresh Yadav on his abdomen and he fell on the

ground and when Ganauri Yadav (PW-3) went for his rescue,

five accused persons, namely, Bale Yadav (A8), Kuldeep Yadav

(A6), Sunil Yadav (A4), Suraj Yadav (A11) and Shiv Nandan

Yadav (A10), all armed with deadly weapons, started beating

17

him. Suresh Yadav died on the way to hospital. His evidence

also makes it clear that he did not deny the presence of

mechanic-Mohan at the place of occurrence. According to

him, the incident started when diesel engine was about to

start. A specific suggestion was put to him that Suresh Yadav

died from the bullet fired by Upendra Yadav. It is relevant to

note the conduct of (PW-7). He admitted in his evidence that

after the incident, he went to take the cow for grazing. It is

unnatural that after having seen the incident, without

associating with his fellow villagers about the crime, he coolly

went for grazing his cow which is unbelievable.

19) Another witness relied on by the prosecution is

Bindeshwar Prasad @ Manager Yadav (PW-4). In his evidence,

he mentioned 17 persons as accused who were present at the

place of occurrence and, according to him, on seeing them, he

got afraid of his life but did not run away and remained

standing. He said, when bullet hit Suresh, they started

running. He further deposed that except Suresh Yadav, no

other fell down due to beating, all continued running and

some of them reached their homes and some remained there.

18 He has not only added more names as accused persons but

also asserted that the bomb was exploded after firing of shots.

He also mentioned that Suresh Yadav died on the way to

hospital. A specific suggestion was also given to this witness

that Suresh Yadav died from the bullet fired by Upendra

Yadav. Here again, by drawing our attention to his statement

under Section 164 of the Code, it was pointed out that there

were lot of contradictions and inconsistencies in respect of

vital aspects.

20) The next witness relied on by the prosecution is Ganauri

Yadav (PW-3). Like Bindeshwar Yadav (PW-4), he also named

17 persons as accused who came at the place of occurrence

and (A1) fired from gun hitting the abdomen of Suresh Yadav

and other accused persons started beating. He said when he

fell down, he was not hit on neck with gandassa. He asserted

that Suresh Yadav died on the spot. He received one blow of

spear and two blows of gandassa. He explained that the said

blow of spear was given by poking it into his body and not like

hitting with a lathi. He further deposed that the attack with

spear caused a hole in the vest also. As stated earlier, he

19

asserted that Suresh Yadav died at the place of occurrence

itself, which is not in tune with the statement of other

prosecution witnesses. He said that blood did not fall on

diesel engine, however, it fell at the spot. He also informed the

Court that the blood oozed out from the wounds of all the

injured and its stains were present up to Govindpur hospital.

He admitted that he did not see any injury on the persons of

accused. He admitted that he was not in full sense when he

made the statement to S.I. under Section 164 of the Code. He

also referred to the use of bomb which was kept in a bag,

though, he did not say the same before the court.

21) Another witness relied on by the prosecution is Kesho

Yadav (PW-6)-father of the deceased. He admitted that he had

diesel engine in the field towards north of village. His sons,

namely, Suresh Yadav and Naresh Yadav were repairing the

said engine for irrigation purposes. At that time, all the

accused Brahmdeo Yadav (A1), Darogi Mahto (A2), Maho

Yadav (A3), Sunil Yadav (A4) armed with guns in their hands,

accused Kuldip Yadav, Shiv Nandan Yadav, Baleshwar, Suraj

with gandassas, Sunil Yadav with saif, Sudhir yadav with

20

spear and Paro Mahto with lathi came there. He further

explained that immediately on coming there, the accused

persons surrounded them and when they started running,

they were caught in the field of Aziz Mian. Accused Brahmdeo

Yadav (A1) fired from gun and the bullet hit the abdomen of

Suresh Yadav and he fell down. Naresh Yadav went to lift

Suresh from the ground when Sunil Yadav hit him with saif

causing injury to his lips. When Ganauri Yadav went to pick

him up, Kuldeep Yadav hit on his neck using gandassa. He

also asserted that his son Suresh Yadav died at the spot itself.

He further informed the court that the bullet made a hole in

the vest of his son and the cloth got cut edges and that was

handed over to the police.

22) Another witness examined on the side of the prosecution

is Dr. Basudeo Yadav (PW-5). He attested the seizure memo

which was prepared by SI before him. He also admitted that

Naresh Yadav affixed his thumb impression before him and he

was present there. He did not say anything about the

occurrence. Minta Devi (PW-8)-wife of the deceased, also did

not elaborate anything about the incident.

21 23) Dr. R.K. Bibhuti, who treated injured Naresh Yadav (PW-

9) and other injured witnesses was examined as (PW-2). He

examined Naresh Yadav, Munshi Yadav, Ganauri Yadav,

Bindeshwar Yadav and after treatment issued a certificate

about the same. Dr. Bipul Kumar, who conducted the

autopsy on the body of the deceased was examined as PW-1

and found the following ante-mortem injuries:-

"(1) An oval lacerated wound of 1/2" diameter with

inverted and charred margin, half inch right to illeg. of

uncertain depth, i.e. wound of entry.

(2) Multiple bruises of size 3"x2" to 1"x1/2", in four in

number over back, right lower chest and abdomen.

On dissection abdominal cavity filled with blood and

blood clot, multiple perforations four in number of small

intestine locum and transverse colon, linear ruptured, a

metallic foreign body like bullet of 1 =" length and 1/6"

in diameter was lodged at L/1 spine after piercing the

abdominal aorta. Rest viscera were intact and pale,

stomach contains fluids about 100 ml. Bladder empty,

heart all chambers empty.

Cause of death - hemorrhage and shock produced by

above noted injuries. Injury No. 1 caused by firearm

such as gun. Injury No. 2 caused by hard and blunt

object such as lathi."

24) The analysis of the evidence of R.K. Bibhuti (PW-2) and

the evidence of injured persons about the nature of injury

contradict each other. The analysis of witnesses examined on

22

the side of the prosecution clearly show that they were not

able to identify the actual place of occurrence, namely,

whether the incident happened near the diesel engine or in the

field of Aziz Mian. They all had a different version about the

nature of injuries and they are not consistent whether the

deceased died at the spot or on the way to hospital or in the

hospital. All these contradictions, uncertainties cannot be

ignored lightly when some of the accused also suffered bullet

injuries in the same incident, which is a cross case, namely,

FIR No. 12/97.

Conviction under Section 149 IPC

25) Apart from conviction under Section 302, all the accused

were also convicted under Section 149 IPC. Learned counsel

appearing for the appellants demonstrated that, first of all,

there was no common object, even if, it is admitted that there

was a common object, the same was not known to anybody, in

such circumstances, punishment under Section 149 IPC is not

warranted. On the other hand, learned counsel appearing for

the State submitted that when the charge is under Section

149 IPC, the presence of the accused as part of unlawful

23

assembly is sufficient for conviction, even if, no overt act is

imputed to them. In other words, according to him, mere

presence of the accused as part of unlawful assembly is

sufficient for conviction. In order to understand the rival

claim, it is useful to refer Section 149 which reads as follows:-

"149. Every member of unlawful assembly guilty of

offence committed in prosecution of common object.--If

an offence is committed by any member of an unlawful

assembly in prosecution of the common object of that

assembly, or such as the members of that assembly knew to

be likely to be committed in prosecution of that object, every

person who, at the time of the committing of that offence, is

a member of the same assembly, is guilty of that offence."

26) The above provision makes it clear that before convicting

accused with the aid of Section 149 IPC, the Court must give

clear finding regarding nature of common object and that the

object was unlawful. In the absence of such finding as also

any overt act on the part of the accused persons, mere fact

that they were armed would not be sufficient to prove common

object. Section 149 creates a specific offence and deals with

punishment of that offence. Whenever the court convicts any

person or persons of an offence with the aid of Section 149, a

clear finding regarding the common object of the assembly

must be given and the evidence discussed must show not only

24

the nature of the common object but also that the object was

unlawful. Before recording a conviction under Section 149

IPC, essential ingredients of Section 141 IPC must be

established. The above principles have been reiterated in

Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC

755.

27) In Ranbir Yadav vs. State of Bihar (1995) 4 SCC 392,

this Court highlighted that where there are party factions,

there is a tendency to include the innocent with the guilty and

it is extremely difficult for the court to guard against such a

danger. It was pointed out that the only real safeguard

against the risk of condemning the innocent with the guilty

lies in insisting on acceptable evidence which in some measure

implicates such accused and satisfies the conscience of the

court.

28) In Allauddin Mian and others Sharif Mian and

another vs. State of Bihar (1989) 3 SCC 5, this Court held:-

"....Therefore, in order to fasten vicarious responsibility on

any member of an unlawful assembly the prosecution must

prove that the act constituting an offence was done in

prosecution of the common object of that assembly or the act

done is such as the members of that assembly knew to be

likely to be committed in prosecution of the common object

25

of that assembly. Under this section, therefore, every

member of an unlawful assembly renders himself liable for

the criminal act or acts of any other member or members of

that assembly provided the same is/are done in prosecution

of the common object or is/are such as every member of that

assembly knew to be likely to be committed. This section

creates a specific offence and makes every member of the

unlawful assembly liable for the offence or offences

committed in the course of the occurrence provided the same

was/were committed in prosecution of the common object or

was/were such as the members of that assembly knew to be

likely to be committed. Since this section imposes a

constructive penal liability, it must be strictly construed as it

seeks to punish members of an unlawful assembly for the

offence or offences committed by their associate or

associates in carrying out the common object of the

assembly. What is important in each case is to find out if the

offence was committed to accomplish the common object of

the assembly or was one which the members knew to be

likely to be committed. There must be a nexus between the

common object and the offence committed and if it is found

that the same was committed to accomplish the common

object every member of the assembly will become liable for

the same. Therefore, any offence committed by a member of

an unlawful assembly in prosecution of any one or more of

the five objects mentioned in Section 141 will render his

companions constituting the unlawful assembly liable for

that offence with the aid of Section 149, IPC...."

29) It is not the intention of the legislature in enacting Section

149 to render every member of unlawful assembly liable to

punishment for every offence committed by one or more of its

members. In order to attract Section 149, it must be shown

that the incriminating act was done to accomplish the

common object of unlawful assembly and it must be within the

knowledge of other members as one likely to be committed in

26

prosecution of the common object. If the members of the

assembly knew or were aware of the likelihood of a particular

offence being committed in prosecution of the common object,

they would be liable for the same under Section 149 IPC.

30) In Rajendra Shantaram Todankar vs. State of

Maharashtra and others (2003) 2 SCC 257=2003 SCC (Crl.)

506, this Court has once again explained Section 149 and held

as under:

"14. Section 149 of the Indian Penal Code provides 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. The

two clauses of Section 149 vary in degree of certainty. The

first clause contemplates the commission of an offence by

any member of an unlawful assembly which can be held to

have been committed in prosecution of the common object of

the assembly. The second clause embraces within its fold the

commission of an act which may not necessarily be the

common object of the assembly, nevertheless, the members

of the assembly had knowledge of likelihood of the

commission of that offence in prosecution of the common

object. The common object may be commission of one

offence while there may be likelihood of the commission of

yet another offence, the knowledge whereof is capable of

being safely attributable to the members of the unlawful

assembly. In either case, every member of the assembly

would be vicariously liable for the offence actually committed

by any other member of the assembly. A mere possibility of

the commission of the offence would not necessarily enable

the court to draw an inference that the likelihood of

commission of such offence was within the knowledge of

every member of the unlawful assembly. It is difficult indeed,

though not impossible, to collect direct evidence of such

27

knowledge. An inference may be drawn from circumstances

such as the background of the incident, the motive, the

nature of the assembly, the nature of the arms carried by the

members of the assembly, their common object and the

behaviour of the members soon before, at or after the actual

commission of the crime. Unless the applicability of Section

149 -- either clause -- is attracted and the court is

convinced, on facts and in law, both, of liability capable of

being fastened vicariously by reference to either clause of

Section 149 IPC, merely because a criminal act was

committed by a member of the assembly every other member

thereof would not necessarily become liable for such criminal

act. The inference as to likelihood of the commission of the

given criminal act must be capable of being held to be within

the knowledge of another member of the assembly who is

sought to be held vicariously liable for the said criminal

act...."

The same principles have been reiterated in State of Punjab

vs. Sanjiv Kumar alias Sanju and others (2007) 9 SCC 791.

Summarization of the principles attracting S.149

31) In the earlier part of our order, we have analysed the

evidence led in by the prosecution and also pointed out several

infirmities therein. In our view, no overt act had been

attributed to any other accused persons except Brahmdeo

Yadav (A1) towards the murder of Suresh Yadav. Had the

other accused persons intended or shared the common object

to kill Suresh Yadav, they must have used the weapons

allegedly carried by them to facilitate the alleged common

object of committing murder. The Sessions Judge, on

28

analysis, held that no case under Section 307/149 against all

the 11 accused persons be made out for causing murderous

assault and hurt to Naresh Yadav, Munshi Yadav, Bindeshwar

Yadav and Ganauri Yadav. The learned Judge further

observed that it appears that at least 4 of the accused persons

were armed with gun but no gun shot injury was inflicted

against any of the aforesaid injured prosecution witnesses.

Had the accused persons intended to kill the witnesses, they

must have used the surest weapon of committing murder i.e.

gun against any of the aforesaid witnesses. In view of the fact

that common object was not known to anybody and in the

light of the principles enunciated over application of Section

149 IPC and with the available material on the side of the

prosecution, we hold that it is not safe to convict the accused

persons under Section 149 IPC.

32) Summary of all the issues:

a) Though both the FIRs (11/97 and 12/97) were investigated

by the very same IO, he had not acted in good discipline and

not drawn the attention of the trial Judge about the cross

cases arising out of the same incident.

29

b) By reading the statement of prosecution witnesses under

Section 164 of the Code and their evidence before the Court

clearly show their improvements with due deliberation and

consultation and in the absence of credible explanation,

conviction based on their testimony cannot be sustained.

c) The prosecution is not sure, especially about the actual

place of occurrence since some witnesses demonstrated that it

occurred near diesel engine and some said the occurrence had

taken place in the field of Aziz Mian. We have already noted

down the contradictions among the prosecution witnesses on

material facts and it is not safe to convict all the accused

based on the same.

d) Even, on description of injuries alleged to have been

sustained, the details furnished by the prosecution witnesses

and the medical evidence vary on material aspects.

e) Non-examination of diesel mechanic-Mohan Yadav is fatal

to the prosecution case. Though, his presence at the scene of

occurrence was mentioned by the prosecution witnesses under

Section 164, it is not clear why the prosecution did not

examine him.

30

f) Likewise, though the IO collected blood stained clothes and

other objects including earth from the site, there is no

information whether the same were examined by the forensic

science laboratory and the outcome of the same.

g) There is no material to show that all the accused shared in

common object, the object itself not being proved and their

participation in it is not made out by credible evidence.

Without a clear finding regarding common object and

participation therein by each one of the accused members,

there can be no conviction with the aid of Section 149 IPC.

h) The place of occurrence has been shifted by informant and

the investigating officer has admitted not making any site plan

of the place of occurrence and casually acted on the basis of

the statement of the informant without carrying its own

investigation to ascertain the actual place of occurrence.

i) As it was morning time, at least some villagers in their

routine work must have been present in neighbouring field

who could have deposed regarding the occurrence and manner

in which it did take place, if they were examined.

31 j) The injuries on the accused, particularly, fire arm injury on

Brahmdeo Yadav has not been explained by the prosecution

despite the fact that the informant parties were chargesheeted

for causing those injuries on the person of Brahmdeo Yadav,

Darogi Mahto, Musafir Yadav and Sunil Yadav.

k) The weapons alleged to be used in the offence were not

seized and no effort was made to recover them. Hence, there

is nothing on record to link the accused persons to the crime.

l) The blood stained clothes, blood stained earth of the place

of occurrence were not sent to forensic laboratory for chemical

examination.

m) The bullet found by the doctor who conducted the post-

mortem of the deceased was not seized and preserved for

court's observation.

n) The version given by eye-witnesses who were also

interested witnesses on account of their relationship with the

deceased and being inimically deposed against the accused

persons is highly exaggerated, contrary to each other and not

fully corroborated with medical evidence and there are

discrepancies about the number of accused persons, weapons

32

and ammunitions carried by them and they are not in tune

with what (PW-9) informant has stated in his deposition. In

other words, the prosecution has not presented true version

on most of the material parts and therefore the witnesses and

material placed on their side does not inspire confidence and

cannot be accepted on its face value.

o) The findings of the High Court and ultimate conclusion

dismissing the appeals are perverse and resulted in failure of

justice.

33) Under these circumstances, the impugned judgment of

the High Court dated 26.09.2003 in Criminal Appeal Nos. 293,

307, 311 and 371 of 2000 and the judgment and order dated

26/27.06.2000 passed by the Ist Addl. District & Sessions

Judge, in Sessions Trial No. 333/97/40/97 are set aside. All

the accused are directed to be released forthwith unless their

presence is required in some other case. Appeals are allowed.

...............................................J.

(P. SATHASIVAM)

33

...............................................J.

(H.L. GOKHALE)

NEW DELHI;

APRIL 11, 2011.

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