IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.367 of 2019

Arising Out of PS. Case No.-127 Year-2012 Thana- LAUKAHI District- Madhubani

======================================================

Rajkumar Yadav @ Raja Yadav, Son of Badelal Yadav, Resident of Village-

Chichodhwa, P.S-Laukahi, District-Madhubani.

... ... Appellant

Versus

The State of Bihar

... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 264 of 2019

Arising Out of PS. Case No.-127 Year-2012 Thana- LAUKAHI District- Madhubani

======================================================

Bare Lal Yadav, Son of late Achelal Yadav, Resident of Village - Chichodwa,

Police Station - Laukahi, District – Madhubani.

... ... Appellant

Versus

The State of Bihar

... ... Respondent

======================================================

with

CRIMINAL APPEAL (DB) No. 313 of 2019

Arising Out of PS. Case No.-127 Year-2012 Thana- LAUKAHI District- Madhubani

======================================================

Bishun Deo Paswan @ Vishnu Paswan, Son of Gunjan Paswan, Resident of

Village - Chichodhva, P.S.- Laukhi, District- Madhubani.

... ... Appellant

Versus

1.The State of Bihar

2.Rohit Yadav Son of Dhanik Lal Yadav

3.Nirmal Yadav Son of Dhanik Lal Yadav

4.Ram Bilas Yadav Son of Rameshwar Yadav

5.Ramdeo yadav Son of Luchai Yadav

6.Devendra Yadav @ Bhaijee Yadav Son of Ramful Yadav

7.Dhanik Lal Yadav Son of Late Achche Lal Yadav

8.Birbal Yadav Son of Ramful Yadav

Patna High Court CR. APP (DB) No.367 of 2019 dt.19-09-2023

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9.Chandradeo Yadav Son of Late Jeetan yadav

10.Raj Narayan Yadav Son of Late Dhanbeer Yadav, All resident of Village -

Kachnarwa, P.S.- Laukhi, District- Madhubani.

... ... Respondents

======================================================

with

CRIMINAL APPEAL (DB) No. 392 of 2019

Arising Out of PS. Case No.-127 Year-2012 Thana- LAUKAHI District- Madhubani

======================================================

Budhan Yadav Son of Late Asharfi Yadav, Resident of Village- Kachnarwa,

Police Station- Laukahi, District- Madhubani.

... ... Appellant

Versus

The State of Bihar

... ... Respondent

======================================================

Appearance :

(In CRIMINAL APPEAL (DB) No. 367 of 2019)

For the Appellant: Mr. Ramakant Sharma, Sr. Advocate

Mr. Lakshmi Kant Sharma, Advocate

Mr. Akshay Ashish, Advocate

For the Informant: Mr. Ravi Prakash, Advocate

For the State : Mr. Abhimanyu Sharma, A.P.P.

Mr. Bipin Kumar, A.P.P.

Mr. Binay Krishna, Spl. P.P.

(In CRIMINAL APPEAL (DB) No. 264 of 2019)

For the Appellant: Mr. Ramakant Sharma, Sr. Advocate

Mr. Lakshmi Kant Sharma, Advocate

Mr. Akshay Ashish, Advocate

For the Informant: Mr. Ravi Prakash, Advocate

For the State : Mr. Binay Krishna, Spl. P.P.

(In CRIMINAL APPEAL (DB) No. 313 of 2019)

For the Appellant: Mr.Ravi Prakash, Advocate

For the Respondent: Mr. Binay Krishna, Spl. P.P.

(In CRIMINAL APPEAL (DB) No. 392 of 2019)

For the Appellant: Mr. Saroj Kumar, Advocate

For the Informant: Mr. Ravi Prakash, Advocate

For the Respondent: Mr. Binay Krishna, Spl. P.P.

======================================================

CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH

and

HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH

C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 19-09-2023

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These Criminal appeals arise out of the common judgment

dated 24.01.2019, passed in G.R. case No.1687/2012,

corresponding Trial No.368/2017 by the learned 1

st

Additional

Sessions Judge-cum-Special Judge, Madhubani, therefore, having

been heard together, and accordingly, being disposed of by this

common order.

2. Criminal Appeal (DB) No.367 of 2019, Criminal Appeal

(DB) No.264 of 2019 and Criminal Appeal (DB) No.392 of 2019

have been filed by the respective appellants above named against

the judgment of conviction recorded vide order dated 24.01.2019

and order of sentence dated 29.01.2019, and the Criminal Appeal

(DB) No.313 of 2019 has been filed by the informant, namely,

Bishun Deo Paswan @ Vishnu Paswan against the judgment of

acquittal recorded in respect of 10 named accused persons by the

learned trial court vide the same order dated 24.01.2019.

3. The informant of the case, who is the appellant in

Criminal Appeal (DB) No.313 of 2019, has also entered his

appearance through his advocate in Criminal Appeal (DB) No.264

of 2019 (appeal against conviction) and in view of the analogous

hearing of all the appeals, no fresh notice is required to be served

upon the informant.

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4. Criminal Appeal (DB) No.313 of 2019 (appeal against

acquittal) as referred above is also being disposed of at the stage of

admission itself by this common order.

Criminal Appeal (DB) No.367 of 2019

and

Criminal Appeal (DB) No.264 of 2019

and

Criminal Appeal (DB) No.392 of 2019

All the three appeals mentioned above have been filed by

the respective appellants convicted by the trial court vide judgment

dated 24.01.2019 and the order of sentence dated 29.01.2019,

passed by the Additional Sessions Judge 1st-cum-Special Judge,

Madhubani in G.R. case No.1687 of 2012, corresponding Trial

No.368 of 2017, arising out of Laukahi P.S. case No.127 of 2012,

whereby and whereunder appellant Rajkumar Yadav @ Raja

Yadav of Criminal Appeal (DB) No.367 of 2019 has been

convicted under Sections 302/34 of the Indian Penal Code

(referred to ‘I.P.C.’), and has been sentenced to undergo life

imprisonment with fine of Rs.10,000/- and in case of default of

payment of fine, additional imprisonment for six months. He has

also been convicted under Section 27 of the Arms Act and has

been sentenced to undergo rigorous imprisonment for three years

with fine of Rs.5,000/- and in case of default of payment of fine,

Patna High Court CR. APP (DB) No.367 of 2019 dt.19-09-2023

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additional imprisonment for six months. He has further been

convicted under Sections 3(1)(X) of the SC/ST (Prevention of

Atrocities) Act and has been sentenced to undergo rigorous

imprisonment for one year with fine of Rs.10,000/- and in case of

default of payment of fine, additional imprisonment for six

months. The sentences of the appellant have been directed to run

concurrently. Appellant Bare Lal Yadav of Criminal Appeal (DB)

No.264 of 2019 has been convicted under Sections 302/34 of the

I.P.C. and has been sentenced to undergo life imprisonment with

fine of Rs.10,000/- and in case of default of payment of fine,

additional imprisonment for six months. He has further been

convicted under Sections 3(1)(X) of the SC/ST (Prevention of

Atrocities) Act and has been sentenced to undergo rigorous

imprisonment for one year with fine of Rs.10,000/- and in case of

default of payment of fine, additional imprisonment for six

months. The sentences of the appellant have been directed to run

concurrently. Appellant Budhan Yadav of Criminal Appeal (DB)

No.392 of 2019 has been convicted under Sections 307/34 of the

I.P.C. and has been sentenced to undergo rigorous imprisonment

for ten years with fine of Rs.10,000/- and in case of default of

payment of fine, additional imprisonment for six months. He has

further been convicted under Sections 3(1)(X) of the SC/ST

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(Prevention of Atrocities) Act and has been sentenced to undergo

rigorous imprisonment for one year with fine of Rs.10,000/- and in

case of default of payment of fine, additional imprisonment for six

months. The sentences of the appellant have been directed to run

concurrently.

5. The prosecution case, as per the fardbeyan of informant

Bishundeo Paswan (PW8) recorded by S.I. of Laukahi P.S. at

Primary Health Centre, Emergency Ward, Laukahi on 14.12.2012

at 13:00 hours, is that on the same day at about 9-10 O’ clock in

the day time the informant was harvesting paddy in his Bataidari

field and his nephew Shivendra Paswan and Dilip Paswan were

easing themselves near the Boring. Suddenly from north-east

about 15-20 persons forming unlawful assembly came variously

armed with desi katta, bhala, teer-dhanush and lathi, farsa started

surrounding Dharamlal Paswan, who was sowing wheat, seeing

them he fled away towards his nephew Dilip, then the leader of

unlawful assembly Bare Lal Yadav ordered Raja and said that

“dekhte kya ho sale kamla ka beta hai jo kafi netagiri karta hai

usko goli mar do”. Thereupon, Raj Kumar Yadav @ Raja Yadav

fired upon the chest of informant’s nephew with countrymade gun

from the close range, due to which he sustained grievous injury on

his chest and he fell down 50 feet west in the field of Ishwar

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Paswan. In the meantime Budhan Yadav, Nirmal Yadav also

resorted firing from their desi katta. On the firing made by Budhan

Yadav, informant’s cousin nephew Dilip Paswan sustained

grievous injury on his left side of rib cage (panjra) and other parts

of body. Other members of unlawful assembly Rohit Yadav,

Ramdeo Yadav, Chandradeo Yadav, Bhaijee Yadav @ Devendra

Yadav, Rambilas Yadav, Birbal Yadav, Dhanik Lal Yadav, Raj

Narayan Yadav, all resorted firing from their respective weapons

and fled away. The informant and others were trying to save their

life, in the meantime, from the village side Sri Narayan Paswan,

Surendra Paswan, Yogendra Paswan, Ami Paswan, Madan Paswan

and other villagers came there and raised alarm, then all the

accused persons fled away by resorting fire, which were identified

by the aforesaid persons. His nephew was brought by them at

Primary Health Centre, Laukahi, where his nephew Shivendra

Paswan was declared dead, whereas the treatment of Dilip Paswan

was going on. The motive behind the alleged occurrence was that

the disputed Bataidari land was purchased by Raj Kumar Yadav @

Raja Yadav and was restraining him not to plough the same,

whereas the said land was previously in cultivating possession of

Dharam Narayan Paswan and Sri Narayan Paswan. The informant

claimed that the accused persons named with their associates by

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forming unlawful assembly killed his nephew Shivendra Paswan

by Raj Kumar Yadav and inflicted injury to Dilip Paswan, whose

treatment was going on.

6. On the basis of aforesaid fardbeyan of the informant,

formal F.I.R. was drawn up and Laukahi P.S. case No.127 of 2012

dated 14.12.2012 was registered under Sections 147, 148, 149,

323, 324, 326, 307, 302 of the I.P.C., Section 27 of the Arms Act

and Sections 3(x) of the SC/ST (Prevention of Atrocities) Act.

The police after investigation submitted charge sheet and

thereafter cognizance was taken by the Jurisdictional Magistrate

and then the case was committed to the court of Sessions.

Charges were framed against the appellants, to which the

appellants pleaded not guilty and claimed to be tried.

7. During trial, the prosecution examined altogether fifteen

witnesses, namely, Surendra Paswan (PW1), Yogendra Paswan

(PW2), Madan Paswan (PW3), Shyam Devi Paswan (PW4),

Dharma Lal Paswan (PW5), Bhami Paswan (PW6), Dilip Paswan

(PW7), Bishun Deo Paswan-informant (PW8), Ravindra Kumar

Singh (PW9), Dr. Avindra Kumar Jha (PW10), Dr. Vinod Kumar

(PW11), Raj Kishore Baitha (PW12), Kamal Narayan Paswan

(PW13), Chandraveer Singh (PW14) and Dr. S. Kazmi (PW15).

In support of its case, the prosecution has also produced exhibits as

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Ext.1 (signature on statement under Section 164 Cr.P.C.), Ext.1/1

(signature on statement under Section 164 Cr.P.C.), Ext.1/3

(signature on statement under Section 164 Cr.P.C.), Ext.2 (inquest

report of the deceased), Ext.3 (writing in F.I.R. and signature),

Ext.4 (charge sheet No.17/13 dated 11.08.13), Ext.4/a (Charge

sheet No.62/13 dated 11.08.13), Ext.4/b (Charge sheet No.11/14

dated 28.02.14), Ext.5 (injury report of Dilip Paswan given by Dr.

Arvind Kumar Jha), Ext.5/a (postmortem report of Sibendra

Paswan by Dr. Binod Kumar), Ext.6 (writing and signature of dead

body challan slip by Raj Kishore Baitha), Ext.7 (an application

was given to obtain injury report of Dilip Paswan dated 14.12.12),

Ext.8 (seizure list), Ext.9 (arresting memo accused Nirmal Yadav),

Ext.9/a (arresting memo of accused Dhanik Lal Yadav), Ext.9/b

(arresting memo of accused Ramdeo Yadav), Ext.9/c (arresting

memo of accused Devendra Yadav @ Bhaijee Yadav), Ext.10

(writing and signature of Sri Chandraveer Singh, J.M. 1

st

class,

Jhanjharpur and itself signature), Ext.11 (statement under Section

164 Cr.P.C. and signature identified by Sri Chandraveer Singh,

J.M. 1

st

class, Jhanjharpur to Dilip Paswan), Ext.11/1 (statement

under Section 164 Cr.P.C. and signature identified by Sri

Chandraveer Singh, J.M. 1

st

class, Jhanjharpur to Sri Narayan

Paswan), Ext.11/2 (statement under Section 164 Cr.P.C. and

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signature identified by Sri Chandraveer Singh, J.M. 1

st

class,

Jhanjharpur to Surendra Paswan), Ext.11/3 (statement under

Section 164 Cr.P.C. and signature identified by Sri Chandraveer

Singh, J.M. 1

st

class, Jhanjharpur to Yogendra Paswan), Ext.11/4

(statement under Section 164 Cr.P.C. and signature identified by

Sri Chandraveer Singh, J.M. 1

st

class, Jhanjharpur to Bhami

Paswan), Ext.11/5 (statement under Section 164 Cr.P.C. and

signature identified by Sri Chandraveer Singh, J.M. 1

st

class,

Jhanjharpur to Madan Paswan), Ext.11/6 (statement under Section

164 Cr.P.C. and signature identified by Sri Chandraveer Singh,

J.M. 1

st

class, Jhanjharpur to Kamal Narayan Paswan), Ext.11/7

(statement under Section 164 Cr.P.C. and signature identified by

Sri Chandraveer Singh, J.M. 1

st

class, Jhanjharpur to Bishundeo

Paswan), Ext.12 (injury report of Dilip Paswan issued by

D.M.C.H. Laheriasarai and identification of writing and signature),

Ext.13 (certified copy of S.T. No.20/93), Ext.14 (c.c. of charge

sheet in S.T. No.20/93), Ext.15 (c.c. of charge frame in S.T.

No.20/93) and Ext.16 (c.c. of postmortem report in S.T. No.20/93).

The defence also examined five witnesses, namely, Balram

Mandal (DW1), Kirani Yadav (DW2), Surya Narayan Yadav

(DW3), Satrughan Prasad Sah (DW4) and Manoj Kumar (DW5).

In support of its case, the defence has also produced exhibits, viz.

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Ext.A (identification of application filed by Ram Prasad

Chaudhary in the examination of witness Shatrughan Prasad Sah),

Ext.B (identification made by Panch decision on application of

injured Ram Prasad Chaudhary), Ext.C (identification of release

order of Raj Kumar Yadav made by Ilaka Prahari office

Kathhauna), Ext.D (translated form of release order issued by

Ilaka Prahari office Kathhauna under the signature of Shatrughan

Prasad Sah), Ext.E (Hindi translation of the application made by

the injured Ram Prasad Choudhary in Nepali language), Ext.F

(Hindi translation of decison of Panch on the application filed by

Ram Prasad Choudhary in the writing of Shatrughan Prasad Sah),

Ext.G (typed copy of release order), Ext.H (typed copy

application) and Ext.I (typed copy panch decision). Eight court

witnesses were also examined by the trial court, namely, Dilip

Paswan (CW1), Sri Narayan Paswan (CW2), Surendra Paswan

(CW3), Yogendra Paswan (CW4), Bhami Paswan (CW5), Madan

Paswan (CW6), Kamal Narayan Paswan (CW7) and Bishun Deo

Paswan (CW8). After conclusion of the trial, the learned Trial

Court convicted and sentenced the appellants in the manner as

indicated above.

8. The learned Counsels for the appellants in Criminal

Appeal (DB) Nos. 264/2019, 367/2019 and 392/2019 along with

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the learned Counsel for the respondents in Criminal Appeal (DB)

No. 313/2019 submitted that the judgment of conviction and the

order of sentence suffered from several infirmities that had been

overlooked by the trial Court, rendering the impugned judgment

unsustainable in the eyes of the law. The learned counsels argued

that there are material inconsistencies between the testimonies of

the eyewitnesses and the medical evidence. Furthermore, they

pointed out that Investigating Officer (PW 12) himself stated in

paragraph 30 and 31 of his deposition that he did not inspect

borewell as well as the place where the deceased and PW 7

purportedly defecating. Moreover, PW 12 did not prepare a site

map of the place of occurrence, stating the khata-khesra of the

field. Therefore, based on these facts, they argued that the place of

occurrence is doubtful. The learned counsels contended that the

manner of occurrence is also doubtful, as they were not present at

the place of occurrence at the time of the incident. Additionally,

they submitted that the prosecution deliberately refrained from

examining any independent witnesses, despite the presence of

many such witnesses at the place of occurrence. Consequently, the

learned counsels submitted that the findings of the learned trial

Court were flawed in terms of both the law and the facts, bereft of

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sound legal reasoning, devoid of merit, and consequently, the

judgment of conviction should be set aside.

9. The learned A.P.P. for the State and the counsel for the

informant, on the other hand, have submitted that the common

judgment of conviction and order of sentence under challenge in

all these three appeals require no interference, as the prosecution

has been able to prove the case beyond all reasonable doubts. It is

observed that the testimony of the witnesses has been consistent

throughout, thereby strengthening the prosecution's case, and

minor inconsistencies in the witnesses' testimonies do not

undermine the entirety of their evidence. It has been submitted that

there is no doubt regarding the place of occurrence, as the

Investigating Officer recovered incriminating materials from there.

Furthermore, the counsel for the informant submitted that the

prosecution has established, through concrete evidence, that all

accused persons had the common object of killing the deceased

and his cousin (PW 7). Merely because an overt act is not

attributed to a person alleged to be a member of an unlawful

assembly, it cannot be asserted that they were not part of the

assembly if they possessed a common object. As such, the

counsels contended that the guilt of the appellants has been

satisfactorily proven by the evidence adduced during the course of

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the trial, and therefore, Criminal Appeal (DB) Nos. 264/2019,

367/2019, and 392/2019 should be dismissed, and Criminal Appeal

(DB) No. 313/2019 should be allowed by setting aside the order of

acquittal passed by the learned trial court.

10. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough examination

of the entire material available on the record, the following issues

arise for consideration :

(I) Whether the prosecution has established the place

of occurrence beyond all reasonable doubts?

(II) Whether the prosecution has proved the manner

of occurrence beyond all reasonable doubts?

(III) Whether the non-examination of independent

witnesses in the facts of the present case has

prejudiced the trial of the appellants?

11. With reference to the first issue formulated above, after

a thorough examination of the materials on record, it is found that

the entire incident is reported to have taken place between

Dharamlal Paswan's (PW 5) field and a borewell located in Shri

Narayan's field. The eyewitnesses, including PW 1, PW 2, PW 3,

PW 4, PW 5, PW 6, and PW 8 (the informant), who were actively

engaged in their work in the adjacent fields at the time of the

incident, as well as PW 7, an injured witness, have consistently

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stated in their depositions about the aforementioned place of

occurrence. These eyewitnesses have testified that when the

deceased was initially shot in the chest, he fell in the field of one

Kishor Paswan @ Ishwar Paswan. Additionally, the Investigating

Officer (PW 12), in corroboration of such testimonies, has

categorically deposed during the course of the trial that at the

scene of the incident, he discovered fired bullet fragments, pellets,

and cartridge parts in the paddy field of Shri Narayan, along with

blood-soaked soil in the potato field of Kishor Paswan @ Ishwar

Paswan, and the same have been seized therefrom vide seizure

memo (Ext. 8). In the case of Balwan v. State of Haryana,

reported in (2014) 13 SCC 560 the Hon’ble Apex Court in

paragraph 18 of the judgment has observed that :

“…The investigation officer, PW 18, Sub-Inspector

Balwan Singh has seized bloodstained earth from the

occurrence place and that clinches the situs of the

crime. The contention of the appellants that the

occurrence had not taken place in the house of Bani

Singh is devoid of merit…”

Thus, considering the facts of this case as indicated above,

we are of the considered opinion that there remains no doubt as

regards to the place of occurrence. Accordingly, the issue no. I is

decided in affirmative.

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12. With reference to the second issue at hand, the attention

of this Court was drawn towards the testimony of the PW 1, PW 2,

PW 3, PW 4, PW 5, PW 6, PW 7 and PW 8. These prosecution

witnesses, in unison, have stated in their depositions that a group

of 15-20 accused persons variously armed with lathi, bhala, bow

and arrow, gun, desi pistol, and farsa came and surrounded PW 5.

In an attempt to save his life, PW 5 ran towards the deceased and

PW 7, who were in the process of returning after a nature call. At

this point, one of the accused, Bare Lal Yadav, ordered to open fire

upon the deceased, whereupon another accused, Rajkumar Yadav,

discharged a gunshot into the chest of the deceased, causing him to

collapse in the potato-field of Kishor Paswan @ Ishwar Paswan.

Subsequently, accused Budhan Yadav fired a shot at PW 7 in his

chest, causing him to fall in the same field of Kishor Paswan @

Ishwar Paswan. Thereafter, all the accused persons, brandishing

their weapons, fled the scene of the occurrence. Upon scrutinizing

the postmortem report (Ext. 5/A) of the deceased, we find multiple

firearm injuries on chest, abdomen and right arm of the deceased.

Moreover, the doctor (PW 11) had recovered ten pellets from the

person of the deceased. On the other hand, the injury report (Ext.

5) of PW 7 shows multiple firearm injuries caused on his chest.

Apparently, the injuries documented by the doctors (P.Ws. 10, 11

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& 15) correspond precisely with the testimony of the eyewitnesses,

providing a consistent description of the manner, nature, and

extent of the assault, as well as the weapons used in the assault.

However, it is worth noting that the informant (PW 8), in his

fardbeyan, stated that the accused Rajkumar Yadav shot the

deceased from close range. On the other hand, PW 11 (the doctor)

mentioned in his deposition that he did not document the shape

and size of the injuries, nor did he include information about

whether gunpowder was found on the body or any tattooing or

singeing around the injuries. Nevertheless, upon reviewing the

inquest report (Ext. 2) and considering the testimony of the

Investigating Officer (PW 12), it becomes apparent that there was

a burnt mark present on the T-shirt of the deceased. Thus, in the

facts of the present case the evidence led by the above-stated eye-

witnesses, one of them is injured witness is consistent, clinching,

tallying with each other and clearly implicating the accused

persons, namely, Bare Lal Yadav, Rajkumar Yadav @ Raja Yadav,

and Budhan Yadav. Therefore, in our considered view, the

prosecution has effectively and convincingly established the

sequence of events involving the aforementioned appellants.

Accordingly, the issue no. II is decided in affirmative.

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13. Now adverting to the third issue in hand, the learned

counsel for the appellants has drawn attention of this Court

towards non-examination of any independent witness despite their

presence at place of occurrence. It is apparent from the records,

that eyewitnesses PW 1 to PW 8 are either related witnesses or

interested witnesses. After undertaking a thorough and meticulous

scrutiny of the depositions offered by these witnesses, it is evident

that their narrations converge towards establishing the guilt of the

accused persons. Namely. Bare Lal Yadav, Rajkumar Yadav @

Raja Yadav, and Budhan Yadav. No significant disparities or

contradictions materialize with respect to the time, place or

manner of the occurrence. The mere fact that a witness is a close

relative should not be sufficient grounds for dismissing their

testimony, provided that their testimony is otherwise deemed

credible. It's important to recognize that being related to someone

doesn't automatically imply that they would hide the true

perpetrator. Therefore, it becomes imperative to meticulously

examine the evidence in question to determine whether there's a

possibility of an innocent person being wrongly accused. Blindly

disregarding the evidence, even when it comes from a witness who

might have a bias or vested interest, has the potential to result in a

miscarriage of justice. At this juncture, we find it relevant to refer

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to the judgment of Hon’ble Supreme Court in the case of

Appabhai v. State of Gujarat, reported in 1988 Supp SCC 241,

wherein in paragraph 11 it was held as under:

“11. In the light of these principles, we may now

consider the first contention urged by the learned

counsel for the appellants. The contention relates to

the failure of the prosecution to examine independent

witnesses. The High Court has examined this

contention but did not find any infirmity in the

investigation. It is no doubt true that the prosecution

has not been able to produce any independent witness

to the incident that took place at the bus stand. There

must have been several of such witnesses. But the

prosecution case cannot be thrown out or doubted on

that ground alone. Experience reminds us that

civilized people are generally insensitive when a

crime is committed even in their presence. They

withdraw both from the victim and the vigilante. They

keep themselves away from the court unless it is

inevitable. They think that crime like civil dispute is

between two individuals or parties and they should

not involve themselves. This kind of apathy of the

general public is indeed unfortunate, but it is there

everywhere whether in village life, towns or cities.

One cannot ignore this handicap with which the

investigating agency has to discharge its duties. The

court, therefore, instead of doubting the prosecution

case for want of independent witness must consider

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the broad spectrum of the prosecution version and

then search for the nugget of truth with due regard to

probability if any, suggested by the accused…”

We also put reliance on the decision rendered by Hon'ble

Supreme Court in the case of Meharaj Singh (L/NK) v. State of

U.P. reported in (1994) 5 SCC 188, wherein the Hon'ble Apex

Court has been held that “Testimony of eye witnesses cannot be

rejected on the sole ground of interestedness but should be

subjected to close scrutiny.”

In light of the aforementioned discussion and the legal

precedents referred to, this Court firmly believes that the

prosecution's case remains sound and unaffected despite the

absence of any independent witness. Therefore, the non-

examination of an independent witness does not cast any aspersion

on the credibility or strength of the prosecution's case.

Accordingly, the issue under consideration is decided in

negative.

14. In view of the findings arrived at on the issues

formulated hereinabove, we are of the considered opinion that the

prosecution has successfully proved the charges beyond reasonable

doubt against the appellants, namely, Rajkumar Yadav @ Raja

Yadav, Bare Lal Yadav and Budhan Yadav. Hence, Criminal

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Appeal (DB) No.367 of 2019, Criminal Appeal (DB) No.264 of

2019 and Criminal Appeal (DB) No.392 of 2019 stand dismissed

and the judgment of conviction dated 24.01.2019 and the order of

sentence dated 29.01.2019 passed by Shri Ishrat Ullah, Additional

Sessions Judge 1st-cum-Special Judge, Madhubani in G.R. case

No.1687 of 2012/ T.R. No.368 of 2017 arising out of Laukahi P.S.

case No.127 of 2012 are affirmed.

15. The appellant namely Raj Kumar Yadav @ Raja Yadav

in Criminal Appeal (DB) No.367 of 2019, and Budhan Yadav in

Criminal Appeal (DB) No.392 of 2019, are in custody to serve the

sentence, therefore, no further direction is required after dismissal

of the appeals. The appellant, namely, Bare Lal Yadav in Criminal

Appeal (DB) No.264 of 2019 has been released on bail suspending

the sentence, therefore, trial court is directed to cancel his bail

bond and send him to jail for serving the sentence.

Criminal Appeal (DB) No.313 of 2019

16. As discussed above, this appeal has been filed by the

appellant against the judgment of acquittal recorded by the trial

court vide order dated 24.01.2019, in respect of as many as 10

(ten) named accused persons, who have been made respondent

Nos.2 to 10 in this appeal.

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17. Against all these respondents, charges were framed

under different heads with the aid of Section 149 of I.P.C.

18. We have already heard the arguments advanced by the

learned counsels appearing for the appellant i.e. informant and the

State.

19. I.A. No.1 of 2019 is allowed.

20. In view of the charges framed against the Respondent

Nos.2 to 10 of this appeal, the issue arises for consideration as

under:

Whether the accused persons, who are respondents

herein and have been acquitted by the learned trial

court shared a ‘common object’ in causing the death

of the deceased and attempting to cause death of PW

7, namely, Dilip Paswan?

21. Now, to consider the issue as formulated above, we

have carefully examined the testimonies of the eyewitnesses,

namely, PW 1 to PW 8. Upon thorough scrutiny of these

testimonies, it becomes evident that these eyewitnesses have

consistently stated that they identified the accused individuals,

who were acquitted by the trial court, as being present in an

assembly armed with deadly weapons such as lathis, bhalas, bows

and arrows, gadasas, and farsas. However, it is crucial to

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emphasize that mere presence in an assembly does not

automatically classify a person as a member of an unlawful

assembly. The determination of membership in such an assembly

hinges on whether it can be proven that there was a shared

common object, and whether the individual was actuated by that

common object. This common object must be shown to be shared

by all the members. In cases where the common object of an

unlawful assembly is not proven, Section 149 cannot be invoked to

convict the accused persons. In the present case, the prosecution

has not presented any evidence to demonstrate that the acquitted

accused individuals shared a common objective to assault the

deceased or PW 7. The existence of the common object of

unlawful assembly must be ascertained in light of the facts and

circumstances of each case. There must be a nexus between the

common object and the offense committed, and it must be

established that the offense was committed to accomplish the

common object. In the facts of this case, the accused persons did

not share a common object at all stages. It is apparent from the

evidence of eyewitnesses as well as the fardbeyan that the accused

persons, forming an unlawful assembly, had come to the field of

PW 5 with the intent to encircle and assault him. That was the

common object of the assembly. However, PW 5, in an attempt to

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save his life, fled towards the deceased. It was at this moment that

accused persons, namely Bare Lal Yadav, ordered Rakumar Yadav

to fire upon the deceased. This sequence of events illustrates a

shift in the intent and actions of the assembly. For accomplishing

their common object, it was not necessary to shoot at the deceased

and PW 7 with the intent to take their lives, as they were not

hindrances to the accused persons in accomplishing their common

object. Thus, it cannot be said that all the accused persons had the

common object to murder the deceased and PW 7 (injured). At this

juncture, it would be relevant to take note of the decision of the

Hon’ble Supreme Court passed in the case of Allauddin Mian v.

State of Bihar, reported in (1989) 3 SCC 5 wherein in para 8, it

was held as follows:

“8…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

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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. In the

present case, the common object of the unlawful

assembly as alleged in the charge was to kill PW 6

Baharan Mian. To accomplish that objective accused

1 and 2 went after PW 6. Sensing danger PW 6 ran

into the adjoining room to fetch a spear to defend

himself. His wife PW 5, however, blocked his way and

did not permit him to go out. When accused 1 and 2

realised that PW 6 was beyond their reach, they,

frustrated at their failure to accomplish their mission,

wielded their weapons on the innocent girls who were

playing in the “dalan”. The common object having

thus been frustrated, accused 1 and 2 took out their

wrath on the innocent girls which was no part of the

common object of the unlawful assembly. It was not

necessary to kill these girls to accomplish their object

of killing PW 6 as these two girls had not prevented

them from reaching PW 6. The learned counsel for the

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accused, therefore, rightly submitted that while

accused 1 and 2 can be punished for their individual

acts committed after the common object stood

frustrated and abandoned on PW 6 placing himself

beyond their reach, the other members of the unlawful

assembly could not be punished for the acts of

accused 1 and 2 as the killing of the girls was no part

of the common object of the assembly. Once PW 6

was beyond the reach of his two tormentors, the

common object to kill him stood frustrated and

whatever the individual members did thereafter could

not be said to have been done in prosecution of the

common object of the assembly. It is not the intention

of the legislature in enacting Section 149 to render

every member of an unlawful assembly liable to

punishment for every offence committed by one or

more of its members. In order to invoke Section 149 it

must be shown that the incriminating act was done to

accomplish the common object of the unlawful

assembly. Even if an act incidental to the common

object is committed to accomplish the common object

of the unlawful assembly it must be within the

knowledge of other members as one likely to be

committed in 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. In the

instant case, however, the members constituting the

unlawful assembly had gone to the house of PW 6 to

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kill him. That was the common object of the unlawful

assembly. For accomplishing that common object it

was not necessary to kill the two girls who were not

an hinderance to accused 1 and 2 accomplishing their

common object. We are, therefore, of the opinion that

accused 3 to 6 cannot be convicted for the injuries

caused to the two minor girls by accused 1 and 2 with

the aid of Section 149, IPC. We, therefore, set aside

the conviction under Section 326/149, IPC, and also

the sentence imposed on accused 3 to 6 on that

count...”

Furthermore, it is apparent from the testimonies of the

eyewitnesses that none of them alleged any specific overt acts on

the part of the acquitted accused persons, nor did they specify

which accused individuals were holding which weapons, except

for the account provided by PW 5, who deposes for the first time

during the trial. Importantly, PW 7, who was an injured witness,

did not mention anything about the use of such weapons in his

evidence. Additionally, neither the postmortem report nor the

injury report of PW 7 indicated any injuries caused by sharp-

cutting or hard and blunt weapons which they allegedly wielded.

There is no evidence whatsoever to suggest that the acquitted

accused individuals acted in concert or pursued a common

objective.

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Thus, in light of the factual matrix of this case and

considering the established legal position as discussed above, this

Court is of the view that the prosecution has utterly failed to

establish that the acquitted accused individuals shared a ‘common

object’ in causing the death of the deceased and attempting to

cause death of PW 7.

Accordingly, the issue is decided in negative.

22. In view of the discussions made above, we are of the

firmed opinion that no case of interference is made out in the

judgment of acquittal recorded in respect of Respondent Nos.2 to

10 vide order dated 24.01.2019.

23. Therefore, Criminal Appeal (DB) No.313 of 2019 is,

accordingly, dismissed.

Narendra/-

(Sudhir Singh, J)

( Chandra Prakash Singh, J)

AFR/NAFR AFR

CAV DATE 01.09.2023

Uploading Date 19.09.2023

Transmission Date 19.09.2023