Jharkhand High Court
Panchal Oraon vs The State Of Jharkhand on 17 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No.463 of 2002
(Against the Judgment of conviction dated 15.05.2002 and Order of
sentence dated 16.05.2002, passed by learned Additional Sessions
Judge, Gumla, in Sessions Trial No.92 of 1997)
....
Panchal Oraon, son of Budhram Oraon, resident of village
Atakora, Police Station-Bharno, District-Gumla.
... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.327 of 2002
....
1. Bargi Oraon, son of Birsa Oraon
2. Budhram Oraon son of Bahura Oraon
3. Paltu Tana Bhagat, son of Goya Oraon
All are residents of village Atakora, Police Station-Bharno,
District-Gumla. ... ... Appellants
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.367 of 2002
....
Anugarha Lakra @ Sunil Bara, son of Sri Balasius Lakra,
resident of village Ata Kora, Police Station-Bharno, District-
Gumla. ... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
With
Cr. Appeal (DB) No.370 of 2002
....
1. Bandhanu Bhagat son of Birsa Bhagat
2. Bhola Oraon son of Mangra Oraon
3. Gobra Oraon son of Charwa Oraon
4. Budhwa Oraon, son of Kaija Bhagat
All are residents of village Atakora, Police Station-Bharno,
District-Gumla. ... ... Appellants
-Versus-
The State of Jharkhand ... ... Respondent
.....
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Appellants : Mr. Chandan Kumar, Advocate
[in Cr.A.463/02, 327/02 & 370/02]
: Mr. Ram Pravesh Singh, Advocate
[in Cr.A.367/02]
For the State : Mrs. Nehala Sharmin, Spl.P.P.
[in Cr.A.463/02, 327/02 & 370/02
: Mrs. Vandana Bharti, Spl. P.P.
[in Cr.A.367/02]
1
....
Order No: 06/Dated: 17.01.2025
Per Sujit Narayan Prasad, J.
Cr. Appeal No.327 of 2002
1. In the reference of Criminal Appeal DB No.327 of
2002, learned counsel appearing for the appellants submits
that the appellants namely Bargi Oraon, Budhram Oraon and
Paltu Tana Bhagat have died and he has got no instruction to
pursue their appeals through their legal representative.
Therefore, he has prayed for abatement of present appeal.
2. Such submission has been made in presence of
learned State counsel.
3. Considering the submission made by Mr. Chandan
Kumar, learned counsel appearing for the appellants on record
the instant appeal being Cr. Appeal No.327 of 2002 is hereby
abated and stands disposed of.
Cr. Appeal No.370 of 2002
4. Mr. Chandan Kumar, learned counsel appearing for
the appellants has submitted that the he has got information
that Appellant No.4 namely Budhwa Oraon has died and he
got no instruction to pursue the appeal through his legal
representative. Therefore, he has submitted for abatement of
present appeal against the Appellant No.4.
5. Such submission has been made in presence of
learned State counsel.
6. Considering the submission made by Mr. Chandan
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Kumar, learned counsel on record, the instant appeal against
the Appellant No.4 namely Budhwa Oraon stands abated.
7. All these appeals excluding the Criminal Appeal (DB)
No.327 of 2002 which has been abated are against the
judgment of conviction dated 15.05.2002 and order of
sentence dated 16.05.2002, passed by learned Additional
Sessions Judge, Gumla, whereby and where under the
appellants have been convicted under Sections 307, 149 and
302/34 of Indian Penal Code and directed to go rigorous
imprisonment for life under Section 302/149 of the Indian
Penal Code and further, rigorous imprisonment for seven (7)
years under Section 307/149 of Indian Penal code. Both the
sentences have been directed to run concurrently.
8. Since these appeals arise out of the common judgment
of conviction and order of sentence, as such with the consent
of learned counsel for the parties, they are taken up together
and are being disposed of by this common order.
Factual Matrix
9. This Court, before proceeding to examine the legality
and propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background of
institution of prosecution case. The prosecution story in brief
as per the allegation made in the First Information Report
reads hereunder as :-
10. According to the fardbeyan of the informant the case
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of the prosecution is that on 12.8.1996 on Monday the
informant along with his wife and son were in his field on
Doradhar in Atamera Chhina toli. At about 1P.M. his cousin
brother Charwa Oraon(deceased) and Bablu Oraon were going
to Lohardaga by Motor cycle No. BHU-1019 and near about
Purva river, 40-50 persons having armed with Bhujali, Tangi,
and lathies, surrounded them but Charwa Oraon and Bablu
escaped from there and came to AtaKora Chhina toli.
11. The following persons were armed with deadly
weapons in their hands. Accused Panchal Oraon armed with
Bhujali, Bhola Oraon lathi, Bandhnu Oraon lathi, Bandhana
Oraon Tangi, Suni having Tangi, and all are resident of
Atakora and accused Paltu Oraon having lathi and Govind
Singh having Tangi and other 30-40 persons surrounded them
and began to assault them by Bhujali, Tangi and lathi due to
which Charwa Oraon died on the spot. When informant’s wife
and son went in rescue of them, accused Budhram assaulted
them with lathi, Bablu was also lying injured. Anyhow he, his
wife and his son escaped from there.
12. Charwa Oraon had been assaulted by Pancham
Oraon with Bhujali and Budhram Oraon had given lathi blow
and Bandhan Oraon had given tangi blow, and all of them
killed him. Govind Singh had also given tangi blow, Bablu
Oraon was assaulted by Ram Oraon and Panchal Oraon with
lathi and after assaulting them the accused persons ran away
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due to the fear, no one went to the police station. Thereafter,
he and Babloo were carried by Baso and Jatru Oraon to their
house.
13. It is alleged that the genesis of occurrence was land
dispute of 32 acres between Panchal Oraon and informant’s
Sister-in-law Most. Birso Orain.
14. On the basis of the Fardbeyan of the informant
namely Bhade Oraon, FIR being Bharno P.S. Case No.117 of
1996 was registered under Sections
147,148,149,341,324,323,302 of the Indian Penal Code
against the accused persons and after due investigation
chargesheet was submitted against the appellants.
15. After cognizance of the offence, the case was
committed to the Court of Sessions. Charge under Sections
149, 307, 302/34 I.P.C. for committing murder of one Charwa
Oraon were framed against the appellants/accused to which
the accused pleaded not guilty and claimed to be tried.
16. The prosecution has altogether examined 09
prosecution witnesses namely, P.W.1 Jagni Oraon (wife of
informant), PW-2 Shri Vishwanath Singh (oraon) son of the
informant, PW-3 Bhade Oraon (informant), PW-4 Dr. T.J.
Minz, who had conducted post-mortem of the deceased, PW-5
Beriya Oraon (seizure list witness), PW-6 Bablu Oraon, PW-7
Saryu Pandit, Investigating officer of the case, PW-8 Dr. Kanha
Prasad Lal, who had examined injured witnesses and injured
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accused Panchal Oraon, PW-9 Pradeep Singh who is the
Formal Witness and had proved the case diary.
17. The Defence has not examined a single witness in
support of their case.
18. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused persons, found the
charges levelled against the appellants proved beyond all
reasonable doubts. Accordingly, the appellants had been
found guilty and convicted for the offence punishable under
Section307,149,302/34 of the Indian Penal Code and have
been sentenced to undergo rigorous imprisonment for life for
the offence under Section 302/149 of the Indian Penal Code
and further, they have also been directed to undergo Rigorous
imprisonment for 7 years for the offence under Section
307/149 of the IPC.
19. The aforesaid order of conviction and sentence is
subject matter of instant appeals.
Submission of the learned counsel for the appellants:
20. Learned counsel appearing for the appellant in
Criminal Appeal No.463 of 2002 and Criminal Appeal DB
No.367 of 2002 has taken the following grounds in assailing
the impugned judgment: –
(i) It is a case where the prosecution has miserably failed to
establish the charge said to be proved beyond all
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reasonable doubt. The reason for such argument istestimony of PW-1, PW-2, PW-3 and PW-6.
(ii) It has been contended that the PW-1 although in the
Examination-in-Chief has supported the prosecution
version but, in the cross-examination, particularly, as
under Para-11 thereof, she has denied to have seen that
who assaulted from which weapon, since she is having
eye sight problem.
(iii) The PW-2 can also not be said to be the reliable witness if
his testimony will be taken into entirety wherein the
omnibus and general version has been disclosed that all
the appellants have assaulted the deceased. The
contention has been raised that in a matter of conviction
under Section 302 of the Indian Penal Code, the specific
overt act is to be there and only then the prosecution will
be said to establish the charge said to be proved beyond
all reasonable doubt which is lacking in the present case.
The PW-2 has further deposed that there was dispute
over the land property in between the deceased and the
informant. Therefore, there is possibility that the
appellants have falsely been implicated in the present
case, so as to grab the land.
(iv) The PW-3 who is the informant of the case had given the
contradictory statement and he had himself contradicted
the prosecution version because at Para-6 of the cross-
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examination he had stated that he had not seen the
person who had killed the deceased Charwa Oraon.
(v) The ground has been agitated that if the prosecution
version will be considered, there is no reference that the
appellants, particularly the appellants of the Criminal
Appeal (DB) No.463 of 2002 and Criminal Appeal (DB)
No. 370 of 2002 have assaulted by giving repeated
assault over the body of deceased, rather the version is
that the deceased was assaulted by Bhujali by Panchal
Oraon who was said to be having the said weapon in his
hand.
(vi) The PW-6 has also not supported the prosecution
version, since it has been deposed by him that he has not
seen who had assaulted the deceased. However, he has
said about 10-30 persons were behind the deceased. He
has deposed that he, after getting injury in his head, has
fell down and become senseless and, as such, he had not
seen who has assaulted by which weapon.
(vii) The Investigating Officer has conducted the investigation
but there is no seizure of the bloodstained earth and
therefore the same has not been sent to the FSL.
(viii) The learned counsel, particularly, representing the
appellants in Criminal Appeal (DB) No.463 of 2002 and
370 of 2002, so far as it relates to Panchal Oraon and
Bandhanu Bhagat are concerned, they have not
8
assaulted and merely on the basis of the aid of Section
149 of the Indian Penal Code showing no complicity of
common object. The conviction is based even though the
said injury is not fully corroborated by the Doctor who
has conducted the post-mortem of the body of the
deceased.
21. Mr. Ram Pravesh Singh, learned counsel representing
the appellant in Criminal Appeal 367 of 2002, has submitted
that none of the witnesses have disclosed the name of the
present appellant Anugarha Lakra @ Sunil Bara.
22. He, however, in addition to the aforesaid argument,
has adopted the other argument which has been in advance by
the learned counsel represented the appellant in Criminal
Appeal No.463 of 2002 and rest of the appellants in Criminal
Appellant No 370 of 2002 giving apart the from Bandhanu
Bhagat.
23. Learned counsel appearing for the appellant, based
upon the aforesaid ground, has submitted that it is a case
therefore wherein the prosecution has reasonably failed to
establish the charge said to be proved beyond all reasonable
doubt and hence, the impugned judgment needs interference
since the learned Trial Court has not taken into consideration
the Testimony of the witness in right prospective and merely
on the basis of the deposition as recorded in the examination-
in-chief, the order of conviction was passed.
9
24. The learned counsel for the appellants, based upon
the aforesaid ground, has submitted that the trial court has
not taken in to consideration of the aforesaid facts as such
impugned judgment requires interference, hence not
sustainable in the eyes of law
Submission of the learned counsels for the State:
25. Mrs. Nehala Sharmin and Mrs. Vandana Bharti,
learned counsel appearing for the State, have jointly submitted
by defending the impugned judgment that it is incorrect on the
part of the appellants to take the ground that the prosecution
has miserably failed to establish the charge said to be proved
beyond all reasonable doubt. Such submission has been made
on the ground by making reference of the testimony of PW-1,
PW-2, PW-3 and PW-6 supported by the Doctor who has been
examined as PW-4.
26. It has been contended by making reference of the
testimony of PW-1, PW-2, PW-3 and PW-6 who have fully
supported the prosecution version if their testimony will be
taken into consideration as recorded in the Examination-in-
Chief.
27. The submission has been made that the testimony of
the witnesses i.e. PW-1, PW-2, PW-3 and PW-6 has fully been
corroborated by the testimony of the Doctor who has been
examined as PW-4 who has found series of incised injury and
that is the prosecution version since right from the inception,
10
the case of the prosecution is that the deceased was being
followed by 20- 30 persons and everybody since had assaulted
therefore repeated injury incised in nature has been found to
be there as per the Medical Report having been found at the
time of post mortem of the dead body of the deceased.
28. Learned counsels appearing for the State, based upon
the aforesaid premise, has submitted that the impugned
judgment does not suffer from any error, hence the instant
appeals are fit to be dismissed.
Analysis
29. We have heard learned counsel for the parties,
perused the documents available on record as also the finding
recorded by the trial court in the impugned judgment.
30. We have also gone through the testimonies of the
witnesses as available in the LCR as also the exhibits.
31. Learned trial court, based upon the testimonies of
witnesses, has passed the judgment of conviction convicting
the appellants under Sections 307, 149, 302/34 of Indian
Penal Code and sentenced them to undergo rigorous
imprisonment for life for the offence under Section 302 of the
IPC.
32. This Court before considering the argument advanced
on behalf of the parties is now proceeding to consider the
deposition of witnesses, as per the testimony as recorded by
learned trial Court.
11
33. P.W.1 namely Jagni Orain is wife of the informant and
she was also working, near the place of occurrence. She has
stated that Charwa Oraon (deceased) was her Dever (brother-
in-law). She had testified that her husband her son
Bishwanath Oraon and Bijay Oraon were also working there in
the meantime Charwa Oraon and Bablu Oraon were running
towards her and all the accused persons were chasing them
with deadly weapons.
34. She had further stated that the accused Panchal
Oraon and other accused persons assaulted Charwa Oraon
with Bhujali, Tangi and Lathi shaft and when her sons
Bishwanath, Binay and her husband went to save him, they
were also badly assaulted by the accused persons. As a result,
her husband fell down there. She has further stated that there
was land dispute between Charwa Oraon and Birso Orain.
Charwa died at the spot. She, had also identified all the
accused persons in the dock. Deceased Charwa was in the
defence service and on the date of occurrence he had come to
his village after taking leave.
She had also stated in her cross-examination that the
accused Panchal Oraon and Budhram Oraon did not want to
part with the share to the deceased Charwa Oraon. She has
also stated that when Charwa was fleeing away he was
shouting “Bhabhi accused persons are chasing for killing me”.
At para-11 she had stated that her eyes were not efficient to
12
see the occurrence and she has not seen the occurrence
properly. Further at para-13 she has stated that for the first
time she has given statement in the court and prior to those
police did not enquire from her.
35. P.W.2 is the son of the informant and he was present
at the place of occurrence at the time of occurrence. He had
stated that while he was working in his field with his father
and mother in the meantime Charwa Oraon and Bablu Oraon
were fleeing away crying for help as 20-30 persons were
chasing them with deadly weapon. He had stated that the
accused Panchal Oraon assaulted Charwa with Bhujali. Other
accused persons had also assaulted him. Charwa died at the
spot. He has stated that the other accused had also assaulted
him his father and his brother. He has specifically stated that
the accused Panchal Oraon had assaulted Charwa Oraon with
Bhujali, accused Gobra with Lathi and accused Budhram with
Tangi.
At para-7 he had stated that he could not say how many
blows of lathi and Baluwa and Bhujali were inflicted on the
deceased and at para-9 he assigned the reason behind the
occurrence as to be the land dispute with Panchal.
36. P.W.3 is the informant and is the cousin brother of the
deceased Charwa Oraon. He had testified that at the time of
occurrence he was working in his field. In the meantime, all
the accused persons came there. His brother Charwa and
13
Bablu were fleeing for life and all the accused persons were
chasing them. He has further testified that out of the accused
persons Panchal had assaulted with Bhujali and other
accused persons assaulted him with lathi and Tangi. He has
stated that there was land dispute so it was accused Panchal
who after forming unlawful assembly in the field had
murdered his brother.
37. He further testified that he was also badly assaulted
by the accused persons. After occurrence he was brought to
his house by the villagers where his statement was recorded
by the police. He identified all the accused persons in the
dock.
In his cross examination he has stated that the accused
persons had assaulted him first. In the meantime, all the
accused persons who were resident of 2-3 village were chasing
Charwa. Charwa came to him and asked for help but the
informant was helpless as he was injured himself.
He has been cross-examined on behalf of the accused
Anugrah Lakra wherein at para -6 he has testified that he had
not seen anyone to kill Charwa.
38. P.W.4 is the Dr.T.J.Minj. On 14.8.96 he was posted in
Sadar Hospital Gumla and he had conducted the Autopsy on
the dead body of Charwa Oraon and had found 12 incised
wounds on his person and three bruises. All the injuries were,
on the vital part of the body and head. All the injuries were
14
ante-mortem and sufficient to cause death.
39. P.W.4 has stated that all the sharp cutting injuries
had been caused by different weapon. Ext.1 is the P.M. report.
According to the doctor injury no. 1 to 11 might be possible by
Bhujali and Tangi.
40. P.W.5 is a witness on the Inquest report, (Exts. 2 and
2/1) are the signatures of the witnesses on the inquest report.
41. P.W.6 Bablu Oraon, he is one of the injured. He was
accompanying the deceased on Motor-Cycle. When he reached
near the place of occurrence the accused persons started
chasing them. Out of fear he left the Motor Cycle there and ran
towards the river. He had stated that in the meantime all the
accused persons intercepted them and started assaulting
them. The accused, persons assaulted Charwa who died at the
spot. He did not identify any of the accused person who had
assaulted him and Charwa.
42. P.W.7 is the Investigating Officer of this case. He had
testified that on 13.8.96 at about 5.30 A.M. he heard a rumor
that a man had been killed in village Atakora. He registered a
Sanha in Bharno P.S, and left for the place of occurrence with
Choukidar and other police man. At place of occurrence, he
recorded the fardbeyan (Ext.3) of the informant Bhade Oraon
and took up the investigation. During investigation he
Investigated the place of occurrence at village Atakora namely
Bargi Tanr which is a paddy field of the Informant.
15
43. In the paddy field he found the dead body of Charwa
Oraon. He also found blood there on earth and paddy was
damaged. He had given the boundary and description of the
suit land. He prepared the Inquest report (Ext. 4) in presence
of the witnesses of the dead body. He had also seized the
blood-stained soil and prepared seizure list in presence of the
witnesses (Ext.5) He also sent the dead body for Post-Mortem
Examination. After recording the statement of the witnesses
and after receipt of the Autopsy report he submitted charge
sheet.
44. This witness had stated that neither he prepares the
sketch/map of the occurrence nor he had sent the seized soil
for opinion of scientific expert (FSL).
45. P.W.8 is another doctor Kanha Prasad Lal who had
examined the injured Bablu Oraon, Bhade oraon (Informant)
as well as the accused Panchal Oraon. Bablu Oraon had
sustained injuries on his person including shoulder and hand.
The doctor had also found four injuries on the person of the
Informant Bhade Oraon all the injuries were on the shoulder,
hand and head.
46. It is evident from perusal of testimony P.W.1 Jagni
orain wife of informant who claimed herself as an eyewitness
that the 15-16 accused persons assaulted the deceased but
she has not stated anything specific against these appellants
whether they were armed with what type weapon or assaulted
16
the deceased. Further At para-11 she had stated that her eyes
were not efficient to see the occurrence and she has not seen
the occurrence properly. Further at para-13 she has stated
that for the first time she has given statement in the court and
prior to those police did not enquire from her.
47. So far as the evidence of P.W.2 is concerned his
evidence inconsistent to the evidence of the other witnesses.
This witness has stated that the accused/ appellant Budhram
Oraon assaulted to the deceased with tangi whereas on this
point the evidence of P.W.1 is silent and the P.W.3 has stated
that the Budhram Oraon assaulted the deceased with lathi,
whereas the F.I.R. disclose that the Budhram assaulted the
deceased with lathi.
48. Further, according to the F.I.R. and the deposition of
the witnesses several persons have assaulted the deceased
despite the assault given by these appellants no specific
allegation has been attributed by the witnesses.
49. Further, it is evident that the allegation of assault by
lathi has been levelled against the several persons but only
three Injuries have been found by the doctor (P.W.4) which is
said to be caused by hard and blunt substance.
50. Further P.W.3 in his testimony had supported the
entire occurrence but at the same time in the cross-
examination on behalf of the accused Anugrah Lakra wherein
at para -6 he has testified that he had not seen anyone to kill
17
Charwa.
51. Further, it is pertinent to mention here that the
allegation of having armed with tangi has also been levelled
against one Govind Singh and others in the F.I.R but the
accused (Govind Singh) had been acquitted of the charges
levelled against him by an order and Judgment dated 31.7.99.
passed by learned Ist Additional Sessions Judge, Gumla in
S.T. No. 172/1998.
52. It is evident from the impugned judgment that the
learned Trial Court by making reference of the testimony of the
prosecution witnesses has come to the conclusion that these
witnesses has fully supported the prosecution version being
fully supported by the medical evidence and hence, has found
the sufficient material for conviction of the appellants under
Section 149/307/302/34 of the Indian Penal Code and
directed to undergo Rigorous imprisonment for life under
Section 302/149 of the Indian Penal Code and further R.I. for
seven years under Section 307/149 of the Indian Penal Code.
53. The aforesaid judgment of conviction is under
challenge in the present appeal on the ground as has been
referred at the outset hereinabove.
54. This Court, deems fit and proper to refer the judicial
pronouncements before coming to assess the legality/illegality
of the impugned judgment.
55. The law is well settled that in the case of eye witness,
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who, if supports the prosecution version, the conviction is to
be there.
56. The law is equally settled that it is the duty of the
prosecution to substantiate the charge said to be proved
without any iota of doubt and if there is any doubt, then the
benefit of such doubt is to be given to the accused person.
57. The Hon’ble Apex Court in catena of decision has
propounded the proposition that in the criminal trial, there
cannot be any conviction if the charge is not being proved
beyond all reasonable doubts, as has been held in the case of
Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in
(2000) 3 SCC 454, wherein, at paragraph-22, it has been held
as under:-
“22. The amount of doubt which the Court would
entertain regarding the complicity of the appellants in
this case is much more than the level of reasonable
doubt. We are aware that acquitting the accused in a
case of this nature is not a matter of satisfaction for all
concerned. At the same time we remind ourselves of the
time-tested rule that acquittal of a guilty person should
be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused
beyond reasonable doubt a conviction cannot be passed
on the accused. A criminal court cannot afford to
deprive liberty of the appellants, lifelong liberty, without
having at least a reasonable level of certainty that the
appellants were the real culprits. We really entertain
doubt about the involvement of the appellants in the
crime.”
58. Likewise, the Hon’ble Apex Court in the case of
Krishnegowda & Ors. Vrs. State of Karnataka, reported in
19
(2017) 13 SCC 98, has held at paragraph-26 as under:-
“26. Having gone through the evidence of the
prosecution witnesses and the findings recorded by the
High Court we feel that the High Court has failed to
understand the fact that the guilt of the accused has to
be proved beyond reasonable doubt and this is a classic
case where at each and every stage of the trial, there
were lapses on the part of the investigating agency and
the evidence of the witnesses is not trustworthy which
can never be a basis for conviction. The basic principle of
criminal jurisprudence is that the accused is presumed
to be innocent until his guilt is proved beyond reasonable
doubt.”
59. Further, it is the settled proposition of law that if the
result of cross-examination of prosecution witnesses, accused
could establish the probability of his defence and if probability
was established by accused, it would really entitle him to the
benefit of doubt, reference in this regard may be made to the
judgment rendered by the Hon’ble Apex Court in the case of
Bhikam Saran Vrs. State of U.P., reported in (1953) 2 SCC
560, wherein, at paragraph-16, it has been held as under:
“16. It is significant to observe that the appellant led no
evidence in defence but merely relied upon the evidence
of the prosecution witnesses in order to establish his
defence. He had not to affirmatively establish his defence
in the manner in which the prosecution had to establish
its case. If as the result of his cross- examination of the
prosecution witnesses he could establish the probability
of his defence it was enough for his purposes, because if
such a probability was established by him it would really
entitle him to the benefit of the doubt insofar as such
probability would prevent the prosecution case being
established beyond reasonable doubt.”
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60. Further, the principle of ‘benefit of doubt’ belongs
exclusively to criminal jurisprudence. The pristine doctrine of
‘benefit of doubt’ can be invoked when there is reasonable
doubt regarding the guilt of the accused, reference in this
regard may be made to the judgment rendered by the Hon’ble
Apex Court in the case of State of Haryana Vrs. Bhagirath &
Ors., reported in (1999) 5 SCC 96, wherein, it has been held
at paragraph-7 as under: –
“7. The High Court had failed to consider the implication
of the evidence of the two eyewitnesses on the complicity
of Bhagirath particularly when the High Court found
their evidence reliable. The benefit of doubt was given to
Bhagirath “as a matter of abundant caution”.
Unfortunately, the High Court did not point out the area
where there is such a doubt. Any restraint by way of
abundant caution need not be entangled with the
concept of the benefit of doubt. Abundant caution is
always desirable in all spheres of human activity. But the
principle of benefit of doubt belongs exclusively to
criminal jurisprudence. The pristine doctrine of benefit of
doubt can be invoked when there is reasonable doubt
regarding the guilt of the accused. It is the reasonable
doubt which a conscientious judicial mind entertains on
a conspectus of the entire evidence that the accused
might not have committed the offence, which affords the
benefit to the accused at the end of the criminal trial.
Benefit of doubt is not a legal dosage to be administered
at every segment of the evidence, but an advantage to be
afforded to the accused at the final end after
consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt
regarding the guilt of the accused.”
61. Likewise, the Hon’ble Apex Court in the case of
Krishnegowda v. State of Karnataka (Supra) at paragraph-32
21
and 33 has held as under:-
“32. — — The minor variations and contradictions in the
evidence of the eyewitnesses will not tilt the benefit of
doubt in favour of the accused but when the
contradictions in the evidence of the prosecution
witnesses proves to be fatal to the prosecution case then
those contradictions go to the root of the matter and in
such cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the
trustworthiness of evidence on record. As said by
Bentham, “witnesses are the eyes and ears of justice.- –”
62. It is also equally settled that if the minor
discrepancy/contradiction in the testimony of the witnesses is
not worth to be considered and merely on the minor
contradiction, the prosecution cannot be said to fail. However,
if the case is based upon the testimony of the eyewitness, then
as per the settled position of law, the testimony of such
witness is trustworthy and if there is no possibility of taking
two views and if such possibility is there, the view which is
going in favour of the accused is to be accepted, reference in
this regard be made to the judgment rendered by the Hon’ble
Apex Court in the case of Allarakha K. Mansuri v. State of
Gujarat reported in (2002) 3 SCC 57.
63. The Hon’ble Apex Court, in the aforesaid judgment
has laid down the principle that the golden thread which runs
through the web of administration of justice in criminal case is
that if two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to
22
his innocence, the view which is favourable to the accused
should be adopted, for reference, paragraph 6 thereof requires
to be referred herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two
views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused
should be adopted. –”
64. It needs to refer herein before laying down the
aforesaid view, the Hon’ble Apex Court in the case of Sharad
Birdhichand Sarda v. State of Maharashtra reported in
(1984) 4 SCC 116 has already laid down the same view at
paragraph 163 which is required to be referred which read
hereunder as
“163. We then pass on to another important point which
seems to have been completely missed by the High Court.
It is well settled that where on the evidence two
possibilities are available or open, one which goes in
favour of the prosecution and the other which benefits an
accused, the accused is undoubtedly entitled to the benefit
of doubt.—“
65. This Court, having referred the judicial
pronouncements in the context of the present case, is now
proceeding to examine the testimony of the witnesses in order
to reach to the conclusion as to whether PW-1, PW-2, PW-3
and P.W.6 who have been considered to be the eye witness by
the learned Trial Court, can be said to be the eye witness
warranting conviction under Section 302 of the Indian Penal
Code with the aid of Section 149 of the Indian Penal Code.
23
66. Section 302 is of the Indian Penal Code provides the
punishment in a case of commission of murder and the
murder has been defined under Section 300 of the Indian
Penal Code, for ready reference Section 300 of the Indian Penal
Code is being referred hereunder as :-
Except in the cases hereinafter excepted, culpable homicide is
murder —
1. If the act by which the death is caused is done with the
intention of causing death, or
2. If it is done with the intention of causing such bodily injury as
the offender knows to be likely to cause the death of the
person to whom the harm is caused. or
3. If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or
4. If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
67. The penal offence under Section 300 of the Indian
Penal Code, contains the word “intention to kill” and if the
intention is there irrespective of the motive, the ingredient of
Section 300 of the Indian Penal Code will be attracted and the
person concerned will be held guilty under Section 302 of the
Indian Penal Code.
68. As per the prosecution version, the dispute over the
landed property in between the informant and the deceased
24
has been referred and the same has also been substantiatedby the prosecution witnesses particularly, by the PW-1, PW-2
and PW-3.
69. PW-1, PW-2 and PW-3 have been considered to be the
eye witness.
70. This Court in order to access as to whether PW-1, PW-
2 and PW-3 can be considered to be the eyewitness has
scrutinized their testimony minutely.
71. PW-1, although, has supported the prosecution
version but her version in the Examination-in-Chief as would
appear from paragraph-2 thereof that about 15 to 16 persons
had followed the deceased among which she has named
Panchal, Budhram, Gobra, Bergi, Bhola, Bandhanu,
Budhuwa, Anu, Paltu etc. It has been deposed by her that
these persons said to have killed the deceased namely Charwa.
Charwa and Bablu sustained injury. Charwa succumbed to
injury and Bablu survived even after sustaining serious
injuries as per the prosecution.
72. PW-1 has deposed in para-3 that after sustaining the
injury at the hands of these persons, her husband fell down.
73. She had stated the fact that there was dispute over
the landed property as would appear from paragraph-7. In
Para-11, she has deposed that she is having the weak eyesight
due to which she could not see the occurrence as to who has
assaulted by which weapon by which her husband has died.
25
74. It appears from the impugned judgment that the PW-1
has been considered to be the eye witness. The basis of such
consideration is her testimony as recorded in Examination-in-
Chief but we have found no reference of consideration of the
fact what she has deposed at para-11 about the weak eyesight
and could not be able to identify the accused persons as to
who has assaulted from which weapon.
75. We have already referred that this is a case where we
are examining the punishment as inflicted against the
appellants for commission of offence under Section 302 of the
Indian Penal Code and as such, before holding the person
concern guilty of commission of offence under Section 302 of
Indian Penal Code, the specific overt act is required to be
there.
76. The PW-1 has been labelled to be an eye witness but
there is no consideration of her testimony in impugned
Judgment that she had not seen as to who had assaulted from
which weapon.
77. This Court in view thereof is of the view that
consideration of PW-1 as an eyewitness cannot be said to be
the proper consideration by the learned Trial Court.
78. The PW-2 has also been considered to be and eye
witness. We, on the examination of the testimony of PW-2 have
found that the several persons were following the deceased. He
had disclosed the name of the Panchal, Budhram, Gobra, Anu
26
etc. but he could not recall the name of rest of the persons. He
has deposed that Bablu had also sustained injury. He has
further deposed that he (PW-2) and his mother (P.W.1) and
Binay have fled away from the place of occurrence and they
returned back after sometime.
79. In the cross examination, he has deposed that about
10-20 persons had followed the deceased and the Bablu. He
has admitted about the dispute over the landed property. He
has deposed at Para-7 that he cannot say about the number of
assaults given by the accused persons, however, he had said
that 20-25 assault was from the tangi (axe) and the injury was
also by lathi.
80. We have gathered from the testimony of PW-2 that the
disclosure is about assembly of about 10-20 persons. He was
also not in a position to disclose the specific overt act said to
be committed by the appellants.
81. PW-3 has also been considered to be the eye witness
who has deposed at paragraph-3 that he has sustained injury
first thereafter Charwa (deceased) has been killed by the
accused persons. He has taken name of Panchal and Budhram
as an assailant who had assaulted deceased by Bhujali and
Lathi respectively. The reference of the name of the Govind,
Anugraha Lakra, Budhuwa, Paltu, Bergi, Bhola and
Bandhanu have also been taken by him as an assaulter.
82. PW-3, in the cross examination, at para-6 had said
27
that he had not seen anybody killing the Charwa,(the
deceased).
83. The PW-3 has also been considered to be an
eyewitness by learned trial Court and it appears merely on the
basis of consideration of Examination-in-chief where he has
supported the prosecution version, he has been considered to
be the eye witness but we have not found any consideration of
the deposition of this witness (informant) so recorded at Para-
6 wherein he specifically had deposed that he had not seen
who has killed Charwa.
84. This Court, in the view of specific statement having
been made by the PW-3, is of the view that without taking into
consideration the said testimony even though the Trial Court
has reached to be the conclusion that the PW-3 is the eye
witness and, as such, we are of the view that such
consideration treating PW-3 as an eyewitness without
considering the testimony as recorded at para-6 cannot be
said to be a testimony of the eyewitness so far as the PW-3 is
concerned.
85. The doctor has been examined PW-4 who has found
altogether 15 wounds out of which 12 are incised in nature.
The doctor, in the cross examination, has deposed that all the
incised wounds had been by different sharp cutting weapon.
86. PW-6 is Bablu Oraon, who also sustained injury. He
being the injured witness, his testimony is having bearing on
28
the prosecution version and as such, we on close scrutiny of
his testimony have found in entirety that about 10-30 persons
had followed the deceased and the Bablu Oraon i.e. PW-6.
However, he at Para-2 had deposed that immediately after
sustaining injuries over his head he fell down and become
senseless and when he regained his sense then he came to
know that Charwa Oraon has been killed by these persons.
87. The PW-6 has deposed in Para-3 that he could not
recognize who had assaulted him and Charwa Oraon.
88. This Court in view of the specific deposition as
recorded in Examination in Chief that he could not identify
that who had assaulted the Charwa Oraon and Bablu Oraon,
the PW-6 while he is the injured witness the same ought to
have been taken into extensive and deep consideration for the
purpose of coming to the concrete conclusion by the learned
Trial Court regarding commission of offence by the accused
persons, the convicts herein.
89. The PW-7 has been examined as Investigating Officer
who has admitted in Para-8 that he had not prepared the map
of place of occurrence and he had not sent the seized blood
stain earth for forensic and as such nothing has been sent to
the forensic science laboratory.
90. The PW-8 who is the doctor who has examined the
appellant namely Panchal Oraon, appellant of Criminal Appeal
DB No. 463 of 2002 and informant P.W.3 and Bablu Oraon
29
PW-6.
91. So far as the injury which has been said to be
sustained by the appellant in Criminal Appeal DB No. 463 of
2002 namely Panchal Oraon is concerned, he had sustained
injuries found to be lacerated on skull, three inches back to
front and in 3 inches left to middle line. The cause of injury
has been shown to be by hard blunt substance may be by
lathi. However, the nature of injury of has been said to be
simple.
92. The statement of the accused persons has been
recorded under Section 313 Cr.P.C wherein they have denied
the allegation.
93. This Court, having referred the testimony as above,
has found that the witness i.e., the PW-1, PW-2, PW-3 and
PW-6, the injured witness, which is basis of conviction after
having being considered to be the eyewitness.
94. So far as PW-1, PW-2 and PW-3 are concerned, we
have already expressed our view that they are not the reliable
witness and their evidences are not trustworthy. So far as, the
reliability of the injured witness that is PW-6 is concerned, it
has been deposed by him that he had not recognized that who
has assaulted him and the deceased, as such, this Court is of
the view that the testimony of PW-6, the injured witness,
since has deposed that he had not identified who has killed
the deceased, but there is no extensive and deep consideration
30
with respect to the aforesaid testimony of PW-6 by the learned
Trial Court in the impugned judgment. Rather, merely on the
basis of his presence and since he sustained injuries his
testimony has been said to be conclusive for the purpose of
proving the charge.
95. The presence of PW-6 cannot be disputed in view of
the fact that he also sustained injuries having been
corroborated by the PW-8 but he has not disclosed the
presence of either PW-1 or PW-2 or PW-3 at the place of
occurrence who can be the said to be the best person to say
that PW-1 or PW-2 or PW-3 or together PW-1, PW-2 and PW-3
were present at the place of occurrence. Further PW-1, PW-2
and PW-3 have disclosed that about 10-30 persons were
following the deceased without disclosing or without giving any
specific overt act said to be committed by these appellants.
96. We have already referred herein that the guilt under
Section 302 of the Indian Penal Code is to be based upon the
specific overt act. However, in the present case the conviction
under Section 302 of the Indian Penal Code is also with the
aid of Section 149 of the Indian Penal Code.
97. The Section 149 of the I.P.C speaks about the
common object by the unlawful assembly. The interpretation
of Section 149 attracting its applicability has been dealt with
by the Hon’ble Apex Court that merely by adding Section 149
of the Indian Penal Code without any specific attributability or
31
without any specific material showing the mindset regarding
common object in an unlawful assembly, there cannot be any
conviction under Section 302 with the aid of Section 149 of the
Indian Penal Code.
98. At this juncture it is necessary to examine the
provisions of Section 149 of the Indian Penal Code. Section
149 of the Indian Penal Code is to be found in Chapter VIII of
that Code which reads as under:-
“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.”
99. Thus, this section postulates that an offence is
committed by a member of an unlawful assembly in prosecution
of the common object of that assembly or such as a member of
the assembly knew to be likely to be committed in prosecution of
that object and declares that in such circumstances every
person, who was a member of the same assembly at the time of
the commission of the offence, was guilty of that offence. Without
the provisions of this section a member of an unlawful assembly
could not have been made liable for the offence committed not by
him but by another member of that assembly. Therefore, when
the accused are acquitted of riot and the charge for being
members of an unlawful assembly fails, there can be no
conviction of any one of them for an offence which he had not
32
himself committed.
100. Further, a plain reading of the above would show that
the provision is in two parts. The first part deals with cases in
which an offence is committed by any member of the assembly
“in prosecution of the common object” of that assembly. The
second part deals with cases where the commission of a given
offence is not by itself the common object of the unlawful
assembly but members of such assembly “knew that the same is
likely to be committed in prosecution of the common object of the
assembly”.
101. The Hon’ble Apex Court has exclusively dealt with
application of ingredients of Section 149 in the case
of Ramachandran vs. State of Kerala, reported in (2011) 9 SCC
257 and has observed at Paragraph Nos.17 to 27 as under:-
“17. Section 149 IPC has essentially two ingredients viz. (i)
offence committed by any member of an unlawful
assembly consisting of five or more members, and (ii) such
offence must be committed in prosecution of the common
object (under Section 141 IPC) of the assembly or
members of that assembly knew to be likely to be
committed in prosecution of the common object.
18. For “common object”, it is not necessary that there
should be a prior concert in the sense of a meeting of the
members of the unlawful assembly, the common object
may form on the spur of the moment; it is enough if it is
adopted by all the members and is shared by all of them.
19. In order that the case may fall under the first part, the
offence committed must be connected immediately with
the common object of the unlawful assembly of which the
accused were members. (Vide Bhanwar Singh v. State of33
M.P.) Even if the offence committed is not in direct
prosecution of the common object of the assembly, it may
yet fall under the second part of Section 149 IPC if it can
be held that the offence was such as the members knew
was likely to be committed. The expression “know” does
not mean a mere possibility, such as might or might not
happen. For instance, it is a matter of common knowledge
that if a body of persons go armed to take forcible
possession of the land, it would be right to say that
someone is likely to be killed and all the members of the
unlawful assembly must be aware of that likelihood and
would be guilty under the second part of Section 149 IPC.
There may be cases which would come within the second
part, but not within the first. The distinction between the
two parts of Section 149 IPC cannot be ignored or
obliterated.
20. However, once it is established that the unlawful
assembly had common object, it is not necessary that all
persons forming the unlawful assembly must be shown to
have committed some overt act. For the purpose of
incurring the vicarious liability under the provision, the
liability of other members of the unlawful assembly for the
offence committed during the continuance of the
occurrence, rests upon the fact whether the other
members knew beforehand that the offence actually
committed was likely to be committed in prosecution of the
common object.
21. The crucial question for determination in such a case
is whether the assembly consisted of five or more persons
and whether the said persons entertained one or more of
the common objects specified by Section 141. While
determining this question, it becomes relevant to consider
whether the assembly consisted of some persons who were
merely passive witnesses and had joined the assembly as a
matter of idle curiosity without intending to entertain the
common object of the assembly.
22. In K.M. Ravi v. State of Karnataka this Court observed
that mere presence or association with other members34
alone does not per se become sufficient to hold every one
of them criminally liable for the offences committed by the
others unless there is sufficient evidence on record to
show that each intended to or knew the likelihood of
commission of such an offending act.
23. Similarly, in State of U.P. v. Kishanpal this Court held
that once a membership of an unlawful assembly is
established it is not incumbent on the prosecution to
establish whether any specific overt act has been assigned
to any accused. Mere membership of the unlawful
assembly is sufficient and every member of an unlawful
assembly is vicariously liable for the acts done by others
either in prosecution of the common object or such as the
members of the assembly knew were likely to be
committed.
24. In Amerika Rai v. State of Bihar this Court opined that
for a member of an unlawful assembly having common
object what is liable to be seen is as to whether there was
any active participation and the presence of all the
accused persons was with an active mind in furtherance
of their common object. The law of vicarious liability
under Section 149 IPC is crystal clear that even the mere
presence in the unlawful assembly, but with an active
mind, to achieve the common object makes such a person
vicariously liable for the acts of the unlawful assembly.
25. Regarding the application of Section 149, the following
observations from Charan Singh v. State of U.P. are very
relevant: (SCC pp. 209-10, para 13) “13. … The crucial
question to determine is whether the assembly consisted
of five or more persons and whether the said persons
entertained one or more of the common objects, as
specified in Section 141. … The word ‘object’ means the
purpose or design and, in order to make it ‘common’, it
must be shared by all. In other words, the object should be
common to the persons, who compose the assembly, that
is to say, they should all be aware of it and concur in it. A
common object may be formed by express agreement after
mutual consultation, but that is by no means necessary. It35
may be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt
it. Once formed, it need not continue to be the same. It
may be modified or altered or abandoned at any stage. The
expression ‘in prosecution of common object’ as appearing
in Section 149 has to be strictly construed as equivalent to
‘in order to attain the common object’. It must be
immediately connected with the common object by virtue
of the nature of the object. There must be community of
object and the object may exist only up to a particular
stage, and not thereafter.”
26. In Bhanwar Singh v. State of M.P. this Court held:
(SCC p. 674, para 44) “44. Hence, the common object of
the unlawful assembly in question depends firstly on
whether such object can be classified as one of those
described in Section 141 IPC. Secondly, such common
object need not be the product of prior concert but, as per
established law, may form on the spur of the moment (see
also Sukha v. State of Rajasthan). Finally, the nature of
this common object is a question of fact to be determined
by considering nature of arms, nature of the assembly,
behaviour of the members, etc.
27. Thus, this Court has been very cautious in a catena of
judgments that where general allegations are made against
a large number of persons the court would categorically
scrutinise the evidence and hesitate to convict the large
number of persons if the evidence available on record is
vague. It is obligatory on the part of the court to examine
that if the offence committed is not in direct prosecution of
the common object, it yet may fall under the second part
of Section 149 IPC, if the offence was such as the members
knew was likely to be committed. Further inference has to
be drawn as to what was the number of persons; how
many of them were merely passive witnesses; what were
their arms and weapons. The number and nature of
injuries is also relevant to be considered. “Common object”
may also be developed at the time of incident.
102. In the case of Subal Ghorai Vs. State of W.B., reported
36
in (2013) 4 SCC 607, the Hon’ble Supreme Court at ParagraphNos. 42 to 47 and 50 to 53 has observed as under: –
42. We must now deal with the submission that all the
accused cannot be convicted for murder with the aid
of Section 149 IPC because the prosecution story that all
the accused were armed with weapons and they attacked
the deceased is based on omnibus statements of the
eyewitnesses. In order to deal with this submission, we
have reproduced the material portions of the evidence of
the eyewitnesses. It is now necessary to refer to the
judgments of this Court which have been relied upon by
the counsel on this point so that the evidence of the
witnesses can be examined in their light.
43. In Lalji this Court observed that Section 149 IPC
makes every person who is the member of an unlawful
assembly at the time of committing of the offence guilty of
that offence. It creates a constructive or vicarious liability
of the members of the unlawful assembly for the unlawful
acts committed pursuant to the common object by any
other member of this assembly.
However, the vicarious liability of the members of the
unlawful assembly extends only to the acts done in
pursuance of the common object of the unlawful assembly,
or to such offences as the members of the unlawful
assembly knew to be likely to be committed in prosecution
of that object. Once the case of person falls within the
ingredients of the section, the question that he did nothing
with his own hands, would be immaterial, because
everyone must be taken to have intended the probable and
natural results of the combination of the acts in which he
joined and it is not necessary that all the persons forming
an unlawful assembly must do some overt act.
44. It was further observed in Lalji case that: (SCC p. 442,
para
10) “10. … once the court holds that certain accused
persons formed an unlawful assembly and an offence is
37
committed by any member of that assembly in prosecution
of the common object of that assembly, or such as the
members of the assembly knew to be likely to be
committed in prosecution of that object, every person who
at the time of committing of that offence was a member of
the same assembly is to be held guilty of that offence.”
This Court further observed that: (Lalji case, SCC p. 442,
para
10) “10. … After such a finding it would not be open to the
court to see as to who actually did the offensive act or
require the prosecution to prove which of the members did
which of the offensive acts. The prosecution would have no
obligation to prove it.”
45. On the facts of the case before it, this Court held that
after having held that: (Lalji case, SCC p. 442, para 11)
“11. … the appellants formed an unlawful assembly
carrying dangerous weapons with the common object of
resorting to violence … it was not open to the High Court
to acquit some of the members on the ground that they
themselves did not perform any violent act, or that there
was no corroboration of their participation. In other words,
having held that they formed an unlawful assembly and
committed an offence punishable with the aid of Section
149 IPC, the High Court erred in examining which of the
members only did actively participate and in acquitting
those who, according to the court, did not so participate.
Doing so would amount to forgetting the very nature and
essence of the offence created by Section 149 IPC.”
46. In Sherey 25 appellants were tried for offences
punishable under Sections
147, 148, 302, 307, 323 and 325 all read with Section
149 IPC in respect of an incident of rioting. The rioting
occurred because of the dispute over a grove between
Hindus and Muslims. Twenty-five Muslims attacked
Hindus. Three Hindus died. Six eyewitnesses deposed
about the incident. PW 1 complainant gave a detailed
version and attributed overt acts to nine accused. In
deposition, he named five more persons who also attacked
38
the deceased. Regarding the others, he mentioned in an
omnibus way that they were armed with lathis. He did not
attribute any overt act to any one of them. This Court
observed that in the circumstances, it was difficult to
accept the prosecution case that the other appellants were
members of the unlawful assembly with the object of
committing the offences with which they were charged.
This Court expressed that it was highly unsafe to
apply Section 149 IPC and make everyone of them
constructively liable. This Court further observed that
when there is a general allegation against a large number
of persons the Court naturally hesitates to convict all of
them on such vague evidence. Some reasonable
circumstance must be found out to lend assurance. It was
further observed that from that point of view it was safe
only to convict the nine accused whose presence was not
only consistently mentioned from the stage of FIR but also
to whom overt acts were attributed. This Court concluded
that the fact that they were armed with weapons and
attacked the victims shows that they were members of an
unlawful assembly with the common object of committing
murder and other offences with which they were charged.
47. In Thakkidiram Reddy the case of the prosecution was
that the 21 accused in the dead of night formed
themselves into an unlawful assembly armed with
weapons and went to the house of the deceased. They
attacked the inmates of the house of one Gankidi Reddy in
which Gankidi Reddy lost his life. The accused, thereafter,
left the place. The trial court acquitted 10 of them and
convicted A-1 to A-11, inter alia, under Section
148 and Section 302 read with Section 149 IPC. In the
appeal, the High Court set aside the convictions of A-2 to
A-11 under Sections 148 and 302 read with Section
149 IPC and maintained all other convictions. The State
carried an appeal to this Court. This Court referred to its
previous judgments in Masalti v. State of U.P. and Lalji
and observed (Thakkidiram Reddy case, SCC p. 562, para
17) that from these judgments, “it is evident that to
ascertain whether a particular person shared the common
39
object of the unlawful assembly, it is not essential to prove
that he committed some illegal overt act or had been guilty
of some illegal omission in pursuance of the common
object. Once it is demonstrated from all the facts and
circumstances of a given case that he shared the common
object of the unlawful assembly in furtherance of which
some offence was committed–or he knew was likely to be
committed–by any other person, he would be guilty of that
offence”.
This Court further observed that undoubtedly, commission
of an overt act by such a person would be one of the tests
to prove that he shared the common object, but it is not
the sole test. This Court rejected the submission that some
of the accused had caused simple injuries and, hence,
they did not share common object to murder and observed
that the manner in which the incident took place clearly
proved that even if this Court were to assume that those
accused did not share the common object of committing
the murder, they, being members of the unlawful assembly
certainly knew that the murder was likely to be committed
by A-1 in prosecution of the common object so as to make
them liable under Section 302 read with the second part
of Section 149 IPC. In the circumstances, order of
acquittal of A-2 to A-5 and A-9 of the charges
under Sections 148 and 302 read with Section 149 IPC
recorded by the High Court was set aside and the order of
the trial court convicting them for the said offences was
restored.
50. In Pandurang Chandrakant Mhatre, after adverting to
relevant judgments, this Court observed: (SCC p. 797,
para 72) “72. … that for determination of common object of
the unlawful assembly, the conduct of each of the
members of the unlawful assembly, before and at the time
of attack is of relevant consideration. At a particular stage
of the incident, what is the object of the unlawful assembly
is a question of fact and that has to be determined keeping
in view the nature of the assembly, the arms carried by the
members and the behaviour of the members at or near the
scene of the incident.”
40
51. In Waman this Court held that: (SCC p. 307, para 40)
“40. … whenever the court convicts any person or persons
of any offence with the aid of Section 149 IPC, a clear
finding regarding the common object of the assembly must
be given and the evidence disclosed must show not only
the nature of the common object but also that the object
was unlawful. In order to attract Section 149 IPC it must
be shown that the incriminating act was done to
accomplish the common object of unlawful assembly.”
In that case, there was no recovery of weapon from A-12
therein, but weapons were recovered from other accused
and prosecution witnesses asserted that A-12 therein dealt
a blow of iron pipe on the deceased. This Court held that
this was sufficient to attract Section 149 IPC.
52. The above judgments outline the scope of Section
149 IPC. We need to sum up the principles so as to
examine the present case in their light. Section 141 IPC
defines unlawful assembly to be an assembly of five or
more persons. They must have common object to commit
an offence. Section 142 IPC postulates that whoever being
aware of facts which render any assembly an unlawful one
intentionally joins the same would be a member
thereof. Section 143 IPC provides for punishment for being
a member of unlawful assembly. Section 149 IPC provides
for constructive liability of every person of an unlawful
assembly if an offence is committed by any member
thereof in prosecution of the common object of that
assembly or such of the members of that assembly who
knew to be likely to be committed in prosecution of that
object. The most important ingredient of unlawful
assembly is common object. Common object of the persons
composing that assembly is to do any act or acts stated in
clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of
that section. Common object can be formed on the spur of
the moment. Course of conduct adopted by the members
of common assembly is a relevant factor. At what point of
time common object of unlawful assembly was formed
would depend upon the facts and circumstances of each
case. Once the case of the person falls within the
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ingredients of Section 149 IPC, the question that he did
nothing with his own hands would be immaterial. If an
offence is committed by a member of the unlawful
assembly in prosecution of the common object, any
member of the unlawful assembly who was present at the
time of commission of offence and who shared the
common object of that assembly would be liable for the
commission of that offence even if no overt act was
committed by him. If a large crowd of persons armed with
weapons assaults intended victims, all may not take part
in the actual assault. If weapons carried by some members
were not used, that would not absolve them of liability for
the offence with the aid of Section 149 IPC if they shared
common object of the unlawful assembly.
53. But this concept of constructive liability must not be
so stretched as to lead to false implication of innocent
bystanders. Quite often, people gather at the scene of
offence out of curiosity. They do not share common object
of the unlawful assembly. If a general allegation is made
against large number of people, the court has to be
cautious. It must guard against the possibility of
convicting mere passive onlookers who did not share the
common object of the unlawful assembly. Unless
reasonable direct or indirect circumstances lend
assurance to the prosecution case that they shared
common object of the unlawful assembly, they cannot be
convicted with the aid of Section 149 IPC. It must be
proved in each case that the person concerned was not
only a member of the unlawful assembly at some stage,
but at all the crucial stages and shared the common object
of the assembly at all stages. The court must have before it
some materials to form an opinion that the accused
shared common object. What the common object of the
unlawful assembly is at a particular stage has to be
determined keeping in view the course of conduct of the
members of the unlawful assembly before and at the time
of attack, their behaviour at or near the scene of offence,
the motive for the crime, the arms carried by them and
such other relevant considerations. The criminal court has
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to conduct this difficult and meticulous exercise of
assessing evidence to avoid roping innocent people in the
crime. These principles laid down by this Court do not
dilute the concept of constructive liability. They embody a
rule of caution.”
103. In the light of aforesaid settled proposition of law, it can
be safely inferred that Common object of the unlawful assembly
can be gathered from the nature of the assembly, and the
behaviour of the assembly at or before scene of occurrence. It is
an inference to be deduced from the facts and circumstances of
each case.
104. It is further settled proposition of law that in absence of
evidence of any common object being established, accused are
liable for their individual acts only. Moreover, mere presence
does not make a person member of unlawful assembly unless he
actively participates in rioting or does some overt act with
necessary criminal intention or shares common object of
unlawful assembly as has been held by Hon’ble Apex Court
in Vijay Pandurang Thakre v. State of Maharashtra, (2017) 4
SCC 377.
105. The totality of the circumstances must be taken into
consideration in order to arrive at a truthful conclusion that the
appellants had a common object to commit the offence under
which they were convicted.
106. Further it is settled connotation of law that it is
necessary to establish common object before a person can be
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convicted with aid of Section149 as has been held by Hon’ble
Apex Court in the case of Dauwalal v. State of M.P., (2019) 4
SCC 538.
107. In the background of the aforesaid settled legal
proposition of law, this Court is now adverting to the facts of the
case to decide the aforesaid issues.
108. The specific attributability has been alleged by the
prosecution against Panchal Oraon appellant of Cr. Appeal (DB)
No.463 of 2002 and Budhwa Oraon one of the appellants in Cr.
Appeal (DB) No.370 of 2002. Their conviction is based upon the
testimony of PW-1, PW-2 and PW-3 coupled with the testimony of
PW-6.
109. We have already come to the conclusion after scrutiny of
the testimony of PW-1, PW-2 and PW-3 that their testimonies are
not reliable as their evidences having contradiction and further,
they have not specifically stated any overt act by the
accused/appellants.
110. It is also settled proposition of law that for conviction of
an offence read with Section149 IPC, it is necessary that there
should be a finding as to the common object of the participants.
Although the learned trial court has sentenced the appellant
under Section 302 read with Section 149 IPC, the trial court has
not recorded any finding as to how the appellants shared the
common object to establish their constructive liability to sustain
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the conviction under Section 302 read with Section 149 Indian
Penal Code, therefore, in such situation convicting the
appellants with aid of section 149 is very much questionable.
111. So far as, the attributability said to be committed by
the Panchal Oraon appellant of Cr. Appeal (DB) No.463 of
2002 is concerned, the allegation against him is that he had
assaulted the deceased by Bhujali but there is no reference
either by PW-1 or PW-2 or PW-3 that what is the number of
blows by Bhujali by Panchal Oraon. Rather, all along the
version of PW-1, PW-2 and 3 is that the Panchal Oraon had
assaulted by Bhujali and some other accused by the lathi, but
when we have examined the testimony of the doctor, who has
been examined as PW-4, we have found that the number of
wounds were 15, out of which 12 are incised wounds. As such,
we cannot come to the conclusive finding that these witnesses
i.e. PW-1 or PW-2 or PW-3 are the reliable witness.
112. The said view is further been fortified from the
testimony of PW-6, who sustained injury has not disclosed
about the presence of PW-1 or PW-2 or PW-3 at the place of
occurrence. Further PW-3 has also deposed that he had not
seen as to who had killed the deceased, namely Charwa
Oraon.
113. So far as the other appellants are concerned, even
accepting their presence in the assembly unless the
prosecution will come with the material that such assembly
45
was the common object for the purpose of killing a person,
then only the ingredient of Section 149 of the Indian Penal
Code will be there, as has been held by the Hon’ble Apex Court
in the judgment as referred hereinabove. But we have not
found any material showing the common object being the
member of unlawful assembly so as to attract the ingredient of
Section 149 of Indian Penal Code after going through the
testimony of all the witness.
114. This Court, having discussed as above, and adverting
to the judgment passed by the learned Trial Court has found
that the judgment is primarily based upon the testimony as
recorded in the Examination in Chief and there is no reference
what has been deposed by one or the other witnesses in the
cross examination.
115. It is prime duty of the learned Trial Court to consider
for the purpose of making balance the testimony which has
been recorded in the Examine in Chief and the cross-
examination and if the testimony of one or the other witnesses
as recorded in the Examination in Chief remain consistent in
cross examination, then if the learned Trial Court comes to the
conclusion by making up its mind that the prosecution has
been able to prove the charge said to be proved beyond all
reasonable doubt. But if the part of the testimony as recorded
in the cross examination at all has not been considered even
though the same has been referred then how can such
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judgment is said to be proper and justified.
116. The cross examination of the witnesses is not only for
the sake of formality but for the purpose of its consideration
and if there is no consideration, such judgment cannot be said
to be a judgment with all fairness and transparency.
117. We have also found that the finding as recorded by the
learned Trial Court in para-12 that only one accused has cross
examined the witnesses and that has also been taken as a
ground for conviction, but we are not in agreement with such
finding, reason being that when the learned Trial Court, even
in such circumstances, is to come to the conclusive finding
after taken into consideration the testimony of all the
witnesses together and not basing upon the testimony of one
of the witnesses.
118. Herein, since we have already reached to the
conclusion as per the discussion made as above that the case
is primarily based upon the testimony of eye witnesses but we
have found that there is no consistency in the testimony of
either of the witnesses i.e. PW-1 or PW-2 or PW-3. Further PW-
6, being the injured witness, can be said to be the proper
eyewitness but he has also not identified as the who has killed
the deceased.
119. This Court, in view of the aforesaid discussion, is of
the view that the judgment passed against the appellants
cannot be said to be based upon the material available on
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record, rather, the same is without any proper consideration
without making any balance of the testimony of the witnesses.
120. Therefore, we are of the view that the impugned
judgment needs interference.
121. Accordingly, the judgment of conviction dated
15.05.2002 and order of sentence dated 16.05.2002, passed
by learned 1st Additional Sessions Judge, Gumla, is hereby
quashed and set aside.
122. Consequently, the appellant of Cr. Appeal (DB) No.463
of 2002 namely Panchal Oraon, the appellant of Cr. Appeal
(DB) No.367 of 2002 namely Anugarha Lakra @ Sunil Bara
and the appellants of Cr. Appeal (DB) No.370 of 2002 namely
Bandhanu Bhagat, Bhola Oraon and Gobra Oraon are hereby
discharged from all criminal liabilities. Since the aforesaid
appellants are on bail, they are discharged from the liability of
the bail bonds.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
Birendra/-A.F.R.
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