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Judgment
339 paragraphs · 7,811 wordsH.C. Mishra, J
As all these five appeals arise out of the same case, they were heard together and are being disposed of by this common Judgment.
Heard learned counsels for the appellants and the learned counsel for the State.    Â
The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 15.09.2006, passed by the learned 4th
Additional Sessions Judge, Fast Track Court, Garhwa, in S.T. No. 43 of 2005, and the impugned Judgment of conviction dated 29.04.2009 and Order
of sentence dated 02.05.2009, passed by the learned 1st Additional Sessions Judge, Garhwa, in S.T. No. 43(A) of 2005, whereby, all these appellants
have been found guilty and convicted for the offences under Sections 147, 148 and 302 / 149 of the Indian Penal Code. Upon hearing on the point of
sentence, the appellants have been sentenced to undergo R.I. for life with a fine of Rs.5000/- each for the offence under Sections 302 / 149 of the
Indian Penal Code. All the appellants except the appellant Ram Karesh Chandravanshi @ Karesh Ram have been further sentenced to undergo R.I
for three months each for the offence under Section 147 of the Indian Penal Code and R.I for six months each for the offence under Section 148 of
the Indian Penal Code, whereas the appellant Ram Karesh Chandravanshi @ Karesh Ram has been sentenced to undergo R.I for one year for the
offence under Section 147 of the Indian Penal Code and R.I for two years for the offence under Section 148 of the Indian Penal Code. All the
sentences were directed to run concurrently. Â
It may be stated that one appellant Shiv Chandravanshi (in Cr. App. No.1547 / 2006) died during the pendency of the appeal and as such, the
appeal abated qua him, and his name was deleted from the array of appellants.
The case relates to double murder, and the prosecution case was instituted on the basis of the fardbeyan of one Jagdish Prasad Singh, the father of
one of the deceased, Girish Kumar Singh @ Chhotu Singh, and the friend of the other deceased, Nageshwar Prasad @ Langeshwar Sao, recorded on
04.02.2004, at about 07:00 A.M. at his village Pendali, P.S. Meral, in the District of Garhwa. In the fardbeyan, it is stated that on the previous day, i.e.,
on 03.02.2004 at about 7:00 P.M., the informant Jagdish Prasad Singh was in his house along-with his elder son Harish Kumar Singh, wife Saroj Singh,
Manoj Kumar Gupta, the son of the deceased Nageshwar Prasad @ Langeshwar Sao, Ajit Kumar Singh, the brother-in-law of his elder son, and
Binod Sao and Ram Lal Sao of village Peska, with whom, some talks were going on for the sale and purchase of a land. In the meantime, he heard
the screams of his younger son, Girish Kumar Singh @ Chhotu Singh, who was shouting to save him, whereupon, all of them came out of the house
with torch and lantern and saw that 17 named accused persons, including these appellants, who were variously armed with lathi, danda, bhala, sword
etc., were chasing his son, Girish Kumar Singh @Â Chhotu Singh and his friend Nageshwar Prasad @ Langeshwar Sao. All the accused persons
surrounded both of them and started assaulting them by lathi and danda, whereupon the informant tried to save them, requesting the accused persons
to spare both of them. It is alleged that all the accused persons threatened them of the same consequences, abusing them in filthy languages and asked
them to go inside the house. It is also alleged that the accused Ram Karesh Chandravanshi @ Karesh Ram, threatened them with sword, whereupon
all of them went inside their house and closed the main door. The accused persons were telling to kill both the deceased. After about an hour, when
the noise subsided, they came out of the house and saw the dead body of Nageshwar Prasad @ Langeshwar Sao near the shop of Chandradeo Sao
with several bleeding injuries on the whole body, and they also found the dead body of his son Girish Kumar Singh @Â Chhotu Singh at a distance of
about 15 steps, with several bleeding injuries on the whole of his body. Lot of bloods were scattered here and there on the earth between the house of
the informant and the place where the dead bodies were found. The informant was informed by the nearby people, that at about 7 P.M., both the
deceased, had gone to the shop of Chandradeo Sao for purchasing Tiranga Gutka and Chhotu Singh had given a currency note of Rs.100/- to Â
Chandradeo Sao, but Chandradeo said that he had no change and he shall return the rest amount on the next day. Upon this there was a quarrel
between both of them and 7-8 persons, who were also present there, also took the side of Chandradeo Sao. Upon hearing the noise, other persons also
came there and all of them started assaulting Chhotu Singh and Nageshwar Sao. The informant has stated that all the accused persons, forming
common object had assaulted both the deceased by lathi, danda, bhala and sword, and brutally murdered both of them. On the basis of the fardbeyan
of the informant, Meral P.S. Case No. 10Â of 2004, corresponding to G.R No.100 of 2004, was instituted for the offence under Sections 302 / 34 of
the Indian penal Code, against 17 named accused persons and investigation was taken up. After investigation, the police submitted the charge-sheet
against 14 persons, including these appellants.Â
After commitment of the case to the Court of Session, charges were framed against 14 charge-sheeted accused persons, including these appellants,
for the offences under Sections 147, 148 and 302 / 149 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be
tried, they were put to trial. In course of trial, nine witnesses were examined on behalf of the prosecution, including the I.Os and the Doctor, who had
conducted the post-mortem examinations on the dead bodies of both the deceased. The defence has also examined two witnesses in the case and has
proved certain documents.Â
The records show that after the examinations of the witnesses, at the stage of arguments, one accused Ram Karesh Chandravanshi @ Karesh
Ram absconded. Accordingly, his trial was separated, and after his apprehension he was convicted and sentenced by the learned 1st Additional
Sessions Judge, Garhwa, in S.T. No. 43(A) of 2005, on the basis of the same evidence.   Â
P.W.-4 Jagdish Prasad Singh is the informant of the case. This witness has stated that the occurrence had taken place on 03.02.2004 at about 7:00
P.M. He was in his house, along-with his wife Saroj Singh, his elder son Harish Kumar Singh, Ajit Kumar Singh, the brother-in-law of his son,
  Manoj Kumar Gupta, Vinod Sao and Ram Lal Sao. They were talking about the sale and purchase of a land. In the meantime, they heard the
alarm raised by his younger son, Girish Kumar Singh @ Chhotu Singh and his friend  Nageshwar Sao for saving them, whereupon, he along-with
other persons who were present there, came out of the house with torch and lantern. He has named all the accused persons, including these
appellants, who were chasing both of them. Some of the appellants were armed with sword, some of them were armed with bhala and the others
were armed with lathi. All the accused persons surrounded both of them and started assaulting them. The informant tried to intervene, asking the
accused persons not to assault them, but the accused persons starting abusing the informant and threatened them to return to their house, otherwise
they would also face the same consequence. The accused, Ram Karesh Chandravanshi @ Karesh Ram also threatened them with sword, whereupon
they entered their house and closed the door. Thereafter, they saw the occurrence through a window. All the accused persons were shouting to kill
both the deceased and they saw that the accused persons were assaulting his son Girish Kumar Singh and his friend Nagehwar Sao and they took
them towards the shop of Chandradeo Sao assaulting both of them by lathi, danda, bhala and sword, stating that they would kill them. This witness had
stated that the shop of Chandradeo Sao is at a distance of about 100 feet from his house. They heard the noise for about one hour and when the noise
subsided, all of them came out of their house with torch and lantern in search of his son and his friend. When they reached near the shop of
Chandradeo Sao, they saw the dead body of Nageshwar Sao in the pool of blood and at a distance of about 15 steps, they saw the dead body of
Chhotu Singh also, in the pool of blood. This witness has stated that marks of injuries and the bleeding injuries were present almost on the entire body
of both the deceased. This witness has again stated that due to fear, they returned to their house as the road towards Garhwa and Meral was through
the house of the accused persons and the accused persons would have murdered them also. As such, due to fear, they concealed themselves in a
room. In the morning, at about 6:30 A.M, the police arrived there and they opened the door and came out. They came to the place of occurrence, i.e.,
near the shop of Chandradeo Sao along-with the police where the dead bodies were lying and he gave his fardbeyan to the police. He has identified
his signature on the fardbeyan, which was marked Exhibit- 3. The dead bodies were brought for the postmortem examination and the police had also
seized the bloodstained soil. This witness has stated that the occurrence had taken place due to the land dispute between them as the accused persons
were trying to forcibly dispossess the informant from his land. He has stated that civil suit was going on for the said land and the documents of the
land were in the Court. He has identified the accused persons, present in the Court. This witness was put to extensive and a very lengthy cross-
examination, in which, he has stated that the shop of Chandradeo Sao is at a distance of 100 feet from his house. He has denied the suggestion that
the distance is about 500 to 600 feet, which he was concealing. This witness had also stated that there are houses nearby the place of occurrence. He
has stated that there is no electricity in his village and there was no generator in his house. They were witnessing the occurrence from the window of
their house. He has stated that he had not informed the police. The police prepared the inquest report of the dead bodies, and the seizure list, but they
do not bear the signature of this witness or of his son or of Manoj. This witness had also stated that the fardbeyan and the seizure list also do not bear
the signature of any villager residing nearby the place of occurrence or near the house of this witness. This witness had also stated that only the family
members of both the deceased are the witnesses to the occurrence and no other villager is a witness in the case. This witness has also stated that he
had been the Mukhiya of the village and the people of almost all the castes live in the village and he has good relationship with his villagers. He is living
in the village for about           40-45 years and he has denied the suggestion that for the last 10-15 years, he was not residing in
the village due to the fear of the extremists, and they were living at Garhwa. This witness has again stated that one Title Suit No.46 Â of 2003 is
pending in the Court of Munsif, Garhwa, in which, he is the plaintiff. He has clearly stated that none of the accused persons are the parties to this title
suit, and has admitted that the occurrence had taken place for the same land dispute. This witness has also admitted that there is no other case with
the accused persons, except the present case. This witness has also stated that the talk for sale of land was going on, which was to be sold by his wife
and the proposed purchasers were Vinod and Ram Lal Sao. This witness has also admitted that his son, Chhotu Singh @ Girish was an accused in a
murder case. There were two criminal cases upon his son and he had gone to jail twice. He has also stated that from 9:00 P.M of 03.02.2004 till 6.30
A.M of 4.2.2004, this witness and other persons were confined in their house and in the meantime, they had no talk with any other person of the
village. He has also stated that he did not remember whether the police had prepared the seizure list in his presence and he also did not remember that
which of the villagers were present near the dead bodies of the deceased. This witness has also stated that the distance between his village and the
Meral Police Station is about 15 KM and it takes about one and half hours time to reach there. He has denied the suggestion that the deceased were
killed by the extremists. This witness has stated that there was no revolver near the dead bodies. He has again stated that he does not remember
whether they had put their signatures on the inquest report or the seizure list and he also does not remember whether the seizure list of bloodstained
soil was prepared or not. This witness has again stated that he had not put his signature on seizure list. This witness has also stated in his cross-
examination that he does not remember whether there was any enmity with the accused persons prior to the occurrence or not. He has denied the
suggestion that he is not the eyewitness to the occurrence, and the deceased were murdered by the extremists as they were of criminal nature.Â
P.W.-1 Harish Kumar Singh is the son of the informant and the P.W.-2 Manoj Kumar Gupta is the son of the deceased Nageshwar Prasad. Both
these witnesses have also supported the prosecution case as stated by the informant and both of them have stated that the occurrence had taken place
due to the land dispute. P.W.-2 Manoj Kumar Gupta has also identified his signature on the fardbeyan which was marked Exhibit-1. In his cross-
examination, P.W.-1 Harish Kumar Singh has admitted that there is no case between them for the land dispute. He has also stated that he had seen
the occurrence from the window of his house and they had not gone to the Police Station in the night due to fear. This witness has denied the
knowledge about the criminal cases upon his brother and he has also denied the knowledge that his brother had ever been jailed in those criminal
cases. This witness has also stated that the place where the dead bodies were found was at a distance of 100 feet from his house. Again, he has
stated in his cross examination that the said distance was about thousand feet. He has also stated that there was no electricity in his village. He has
also admitted that there was no case between the family of the accused persons and his family and prior to the occurrence, there was no enmity with
them. This witness has stated that there are about 500 houses in his village and people of almost all castes live in the village and his father was earlier
the Mukhiya of the said village. He has further stated that the deceased persons were assaulted near the shop of Chandradeo Sao and that
occurrence had taken place for about one hour, which he had seen from the window of the house. Similarly, P.W.-2 Manoj Kumar Gupta, the son of
the other deceased, has stated in his cross-examination that at the time of the occurrence, he was present in the house of the informant but his father
was not there. He has also stated that no one of the village had given the statement before the police in his presence. This witness has also denied the
suggestion that there was recovery of pistol from the accused persons. Both these witnesses have denied the suggestion that the deceased had been
murdered by the extremists.Â
P.W.-6 Ajeet Narayan Singh, who is the brother-in-law of P.W.-1Â Harish Kumar Singh, has supported the prosecution case to the extent that
both the deceased were murdered by the several people by means of lathi, danda, bhala and garasa, but he has stated that he had not identified them
and as such, this witness has turned hostile on the point of identification.Â
P.W.-5 Raghu Raj Singh had only seen the dead bodies of both the deceased and he is a witness to the inquest report of the dead body of
Nagheswar Prasad @ Langeshwar, on which, he had proved his signature, which was marked Exhibit-4. It may be stated that this witness belongs to
a different village. Similarly, P.W.-9 Arbind Kumar Sahu is a witness to the inquest report of the dead body of Girish Kumar Singh @ Chhotu Singh,
on which he has proved his signature, which was marked Ext.-8. He is also the resident of a different village. In his cross-examination, this witness
had stated that he had put his signature on the inquest report at the Police Station.Â
P.W.-3 is Dr. Ajay Kumar Jha, who had conducted the postmortem examinations on the dead bodies of both the deceased on 4th February 2004.
On the dead body of Girish Kumar Singh @ Chhotu Singh, he had found the following ante-mortem injuries:-
Incised wound 2†x ½†x bone deep over vertex of scalp.
Incised wound 2 ½†x ½†x bone deep vertex of scalp 3†below the Injury No.1.Â
Incised wound 1 ½†x ½†x bone deep left partial region of scalp.Â
Burise 4†x 3†left occipital region of scalp.Â
Abrasion 1 ½â€x ½†left side of cheek
Abrasion ½†x ½†right side of nose.Â
Abrasion 2†x 1†right side of neck.Â
Bruise 6†x 2†left shoulder joint.Â
Bruise whole of back covering an area of 12†x 10â€.Â
Bruise 8†x 4†left upper arms.Â
Swelling 4†x 3†right hand with fracture of right metacarpal bone of thumb.Â
Lacerated wound 1†x ½†left leg.Â
Abrasion 1†x ½†left knee joint.Â
Abrasion 1†x ½†left ankle joint.Â
Abrasion 1†x ½†back leg.Â
Abrasion 1 ½†x 1†right clavicular region of chest.Â
 On dissection of scalp - subcutaneous tissues echymosed. Blood and blood clots were present in the cranial cavity.
 He has stated that injury Nos. 1 to 3 were caused by sharp cutting weapon and rest of the injuries were caused by hard and blunt substance. He
has stated that death was caused due to shock and hemorrhage, as a result of above injuries. He has identified the postmortem report to be in his pen
and signature, which was marked Exhibit-2.  Â
 On the same day, he had conducted the postmortem examination on the dead body of Nageshwar Prasad Sah @ Langeshwar Prasad and had
found the following ante-mortem injuries on the dead body:-
Incised wound 1 ½†x ¼†x bone deep occipital region of scalp.Â
Incised wound 1†x ¼†x bone deep forehead region.Â
Incised wound 2 ½†x 1†x bone deep with fracture of Mandibular bone right side of cheek.Â
Incised wound 1†x ½†x muscle deep inter digital cleft right middle and ring finger.Â
Incised wound 1†x ½†x bone deep right leg.Â
Incised wound 1â€x ½†x bone deep left leg.Â
Incised wound 3/4†x 1/4†x 1/4†just below right knee joint.Â
Bruise 1 ½†x ½†left parietal bone of scalp.
Bruise 2†x 1†left cheek.Â
Bruise 8†x 4†left wrist and hand with fracture adjoining bones.Â
11.Bruise 6†x 4†right wrist joint with fracture of right ulna bone.
  On dissection of scalp - subcutaneous tissues echymosed. Blood and blood  clots were present in the cranial cavity.
 He has stated that the injury Nos. 1 to 7 were caused by sharp cutting weapon and rest of the injuries were caused by hard and blunt substance.
Death was caused due to shock and hemorrhage due to above injuries. He has identified the postmortem report to be in his pen and signature, which
was marked Exhibit- 2/1.Â
P.W.7 is Shyam Kishore Ranjan, who is the main I.O of the case. This witness has stated that on 03.02.2004, he was posted at Meral Police
Station as Officer-Incharge. He got the rumor at about 11:00 P.M., that in village Pendali, two persons had been murdered. He made the sanha entry
about the information. On 04.02.2004 at about 4:00 A.M, he along-with the police party proceeded towards the said village, where he reached at about
6.30 A.M. He found that there was a complete silence in the village and he did not find any one. With the help of Chowkidar, he came to the house of
the informant  Jagdish Prasad Singh, but Jagdish Prasad Singh was not opening the door of the house, and when he disclosed his identity, the door
was opened. He recorded the fardbeyan of Jagdish Prasad Singh, in which, he leveled the allegation against 17 persons for committing the murder of
his son, Girish Kumar Singh @ Chhotu Singh and Nageshwar Prasad by lathi, danda, sword and bhala. Witness Manoj Kumar Gupta also put his
signature on the fardbeyan. He prepared the inquest report of the dead bodies and sent the dead bodies for postmortem examination to Garhwa Sadar
Hospital. He also prepared the seizure list at the place of occurrence, seizing the bloodstained slippers and muffler from near the dead bodies. He had
also seized a country-made pistol near the dead bodies. He had also seized the bloodstained soil. He came to the Police Station and instituted the case.
Thereafter, he returned back to the place of occurrence and he recorded the statements of the witnesses. He received the postmortem reports. Some
of the accused persons had surrendered in the Court and he had also arrested one accused. Thereafter, he was transferred and he handed over the
charge of investigation. He has proved the FIR and the fardbeyan, which were marked as Exhibits-5 and 6 respectively. In his cross-examination, this
witness has admitted that Garhwa District is badly affected by the extremists. He has stated that he could not say as to from whom, he had got the
information about the occurrence. He has stated that in the village, he first met Jagdish Prasad Singh, who had opened the door of his house after he
had disclosed his identification, but these facts are not stated in the case diary. He has not recorded in the case diary that
Jagdish Prasad Singh was confined in his house. He has denied the suggestion that Jagdish Prasad Singh and Manoj Kumar Gupta had gone to the
village along with the police party. He has admitted that the witnesses of inquest report were not of the same village and he has denied the suggestion
that since Jagdish Prasad Singh, Harish Kumar Singh and Manoj Kumar Gupta were not present there, their signatures were not taken in the
inquest report. This witness has admitted that except the informant and his son, he had not recorded the statement of any other witness of that village.
He has also admitted that he had not prepared the sketch map of the place of occurrence. This witness has stated that the distance between the shop
of Chandradeo Sao and the house of the deceased was about 300 meters. He has admitted that the accused persons had no criminal antecedent and
he has also admitted that the informant had informed him that the occurrence had taken place due to the quarrel for purchase of Gutka. He has also
stated that during investigation he was not informed that there was land dispute between the parties, which still continued. The fact about land dispute
came in supervision note. He has also admitted that he had not made any investigation about the land dispute between the parties, in spite of the
direction of the superior authorities. Informant had given him the document about the land dispute between the parties, but he had not recorded the
same in the case diary. The witnesses had stated about land dispute, but that was also not mentioned in the case diary by him. He has also stated that
he had no knowledge about the criminal antecedents of the deceased persons. He had not recorded the statement of Chowkidar. He has denied the
suggestion that he had knowledge about the criminal antecedents of the deceased persons, but he was knowingly concealing the same. Some
contradictions have been taken from the statements of the witnesses, but they are not of much importance. He has also denied the suggestion that the
villagers had informed him that the deceased were killed by the extremists, but he had not recorded their statements. He has also denied the
suggestion that there was no eye witness to the occurrence, but he has created the eye witnesses to help the informant. He has denied the suggestion
of making faulty investigation.Â
P.W.8 is Ramjee Prasad, who is the other I.O of the case and he had only submitted the charge-sheet in the case. Â
The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused persons have denied the evidence
against them. The defence has also examined two witnesses, who are D.W.-1 Nasim Ansari and D.W.-2 Karar Hussain, who have stated that the
deceased persons were murdered by the extremists. The defence has also brought on record certain documents to show that the area is affected by
the extremists. On the basis of the evidence on record, the accused persons have been convicted and sentenced by the Trial Court below as
aforesaid.Â
Learned counsels for the appellants have submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court
below cannot be sustained in the eyes of law, as the prosecution has not been able to bring home the charges against the accused persons beyond all
reasonable doubts. It is submitted by the learned counsels that the entire prosecution story is full of doubts, the benefit of which ought to have been
given to the accused persons. Learned counsel has pointed out that as regards the motive of occurrence, it is stated in the FIR that the informant was
informed that the occurrence had taken place due to the fact that there was a quarrel between the deceased and the accused Chandradeo Sao at the
time of purchase of Gutka and the persons present there took side of Chandradeo Sao and the other persons also came at the side of Chandradeo Sao
and they ultimately assaulted and committed the murder of both the deceased. But this motive has been concealed by the witnesses in their evidence,
and all the witnesses, namely, P.W.-1 Harish Kumar Singh, P.W.-2 Manoj Kumar Gupta and P.W.-4 Jagdish Prasad Singh,
have stated that the occurrence had taken place due to the land dispute between the parties. Learned counsel submitted that not only that the
prosecution has changed the motive of the occurrence, but has not even been able to prove any these motives. It is pointed out by the learned counsel
that P.W.-1 Harish Kumar Singh has admitted that there was no case relating to the land dispute between them, whereas P.W.-4 Jagdish Prasad
Singh has stated that Title Suit No.46 of 2003 was pending in the Court and for this land dispute, the occurrence had taken place, but he has clearly
admitted in his evidence that none of the accused persons are the parties to this Title Suit. Learned counsels accordingly, submitted that even though,
the motive has been changed by the prosecution from the quarrel for Gutka, to land dispute, but the prosecution has not been able to prove even the
changed motive for committing the offence. Learned counsels further submitted that admittedly, except the informant, his son and the son of the other
deceased, there is no other witness to the occurrence and even the I.O., P.W.-7 Shayam Kishore Ranjan has admitted in his cross-examination that
except the family members of both the deceased, he had not recorded the statements of any independent witness. Learned counsel submittedÂ
that admittedly, according to the evidence of P.W.-1   Harish Kumar Singh, there were about 500 houses in the village and even
according to the evidence of the informant, P.W.-4 Jagdish Prasad Singh, the people of almost all the castes resided in the village. He was also the
Mukhiya of the said village and he claimed to be residing in the village for the last 40-50 years and also stated that he had good relationship with all the
villagers. But none of the independent persons of the village had come out to support the prosecution case. Learned counsel submitted that as the
deceased persons were of criminal nature, they were murdered by the extremists and this is the evidence given by two independent villagers, who
were examined as the defence witnesses. Learned counsel also submitted that in fact, even the informant P.W.-4 Jagdish Prasad Singh, his son P.W.-
1 Harish Kumar Singh and P.W.-2 Manoj Kumar Gupta were not present in the village and they were not the eyewitnesses to the occurrence, and
that is the reason, why the police was not informed by them in the night of the occurrence. The Police Station was only at a distance which could be
covered in about one and half hours, as admitted by P.W.-4 Jagdish Prasad Singh, but still the police was not informed in the night by any of these
witnesses and their conduct is absolutely doubtful. It is only a lame excuse that they did not go to the Police Station due to fear of the accused
persons, rather it appears that they were not present in the village. Had they been present in the village, it was against their conduct as the father, son
and the brother of the deceased to keep themselves confined in the house without informing the police.Â
Learned counsels for the appellants further pointed out that there were other independent persons also present in the house itself, i.e., two
purchasers of the land, who were Vinod Sao and Ram Lal Sao, but even these witnesses have not been examined by the prosecution. Even the wife
of the informant, who is said to be present in the house, has not been examined by the prosecution and this fact clearly makes the presence of the
prosecution witnesses, absolutely doubtful. Learned counsel submitted that the recovery of pistol from the place of occurrence clearly shows that the
deceased was of criminal nature and it cannot be ruled out that he had threatened the villagers with firearm, due to which, he might have been
assaulted to death by the villagers or unknown persons, but the very genesis that the quarrel had started for purchase of Gutka, as stated in the FIR,
has been suppressed by the prosecution.Â
Learned counsels futher submitted that P.W.-4 Jagdish Prasad Singh, has admitted that his son was an accused in the murder case. There were
two criminal cases against him and he had gone to jail twice, but this fact is clearly suppressed by the Investigating Officer, P.W.-7 Shyam Kishore
Ranjan and he has stated that he had no knowledge about the criminal antecedents of the deceased. Learned counsels also submitted that the
occurrence had taken place in the month of February and admittedly, the time of occurrence is about 7:00 P.M., when it was complete dark. It is an
admitted position that the witnesses have stated that they had identified the accused persons in the light of torch and lantern, but the witnesses have
again stated that when they confined themselves in the room, they witnessed the occurrence from the window of the house and they have also stated
that they had seen the accused persons, assaulting both the deceased near the shop of Chandradeo Sao, which was quite impossible. Even according
to the evidence of P.W.-1 Harish Kumar Singh and P.W.-4Â Â Â Â Â Â Â Â Â Â Â Â Â Jagdish Prasad Singh, the distance between the shop and
his house was 100 ft and P.W.4, Jagdish Prasad Singh has denied the suggestion that the distance was about 500 ft., but the I.O P.W.-7 has clearly
stated that this distance is about 300 meters and as such, it was not possible for the witnesses to see the occurrence in the night from the window of
the house.Â
Learned counsels have also submitted that there is no specific allegation of assault against any of the accused, rather there is only omnibus
allegation of chasing and assaulting both the deceased persons against all the accused persons and in that view of the matter, the prosecution has
failed to prove the fact that the accused persons were having the common object to commit the murder of the deceased. In this connection learned
counsels have placed reliance upon the decision of the Hon'ble Supreme Court of India in Najabhai Desurbhai Wagh Vs. Valerabhai Deganbhai Vagh
& Ors. reported in (2017) 3 SCC, 261, as also in State of Punjab Vs. Sanjiv Kumar and Ors, reported in AIR 2007 SC 2430, in support of their
contention that where the common object of unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 of
the Indian Penal Code. Learned counsel accordingly, submitted that in the facts of this case, the prosecution has failed to bring home the charges
against the accused persons beyond all reasonable doubts and even though, the witnesses have supported the prosecution case, it is a fit case in which
all the accused persons ought to have been given the benefits of doubt.Â
Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by the
eyewitnesses P.W.-1 Harish Kumar Singh, P.W.-2 Manoj Kumar Gupta and P.W.-4 Jagdish Prasad Singh, and they have clearly stated that all of
these accused persons were chasing the deceased. They were variously armed by lathi, danda, bhala and sword and they had assaulted the deceased
to death. Both the dead bodies were found with several injuries on almost all parts of the body, which proved fatal. This clearly shows that all the
accused persons, who were variously armed with deadly weapons, forming an unlawful assembly, had committed the murder of both the deceased
persons in a gruesome manner in prosecution of the common object of the unlawful assembly. Learned counsel submitted that the ocular evidence of
these witnesses is fully corroborated by the medical evidence of P.W.-3 Dr. Ajay Kr. Jha and the postmortem reports proved by him as Exhibits -2 &
2/1. Learned counsel for the State further submitted that simply because of the fact that the witnesses are related to the deceased, their evidences
cannot be discarded on that ground only, and in this connection, learned counsel has placed reliance upon the decisions of the Hon'ble Supreme Court
of India in Harbans kaur and Anr. Vs. State of Haryana, reported in 2005 Cr.L.J. 2199, Sucha Singh and Anr. Vs. State of Punjab, reported in
(2003) 7 SCC 643, and in R. Prakash Vs. State of Karnataka, reported in (2004) 9 SCC 27. Learned counsel accordingly, submitted that the
prosecution has been able to bring home the charges against the accused appellants beyond all reasonable doubts and there is no illegality in the
impugned Judgment of conviction and Order of sentence passed by the Trial Court below.Â
Having heard the learned counsels for both sides and upon going through the record, we find that in the FIR, the prosecution has given a specific
genesis of the occurrence. It is stated in the FIR that the informant was informed by the persons nearby that at about 7:00 P.M, both the deceased
had gone to purchase Gutka at the shop of Chandradeo Sao and there was a quarrel for the change of money. The informant was also informed that
the persons present there, took side of Chandradeo Sao and later, other persons also took the side of Chandradeo Sao and they ultimately assaulted
both the deceased to death. However, this genesis has been given a complete go-bye by the prosecution witnesses for the reason best known to them,
and they have tried to give another motive for committing the offence. They have stated that the occurrence had taken place due to the land dispute
between the parties, but the prosecution has failed to prove this motive also for committing the offence. Even though it is stated by the informant
P.W.-4 Jagdish Prasad Singh, that one Title Suit being Title Suit No.46 of 2003 was pending, and for the same dispute the occurrence had taken place,
but it is also admitted by him that none of the accused persons were the parties to the Title Suit. It is also accepted that except the present case, there
was no other case between the parties. Thus, the prosecution has failed to prove the fact that there was any land dispute between the parties due to
which the occurrence had taken place. Even P.W.-1Â Â Â Â Â Â Â Harish Kumar Singh has also stated that the occurrence had taken place due
to the land dispute, but he has admitted that prior to this occurrence, there was no dispute between the parties and there is no case for any land dispute
between them. Though it is a well settled law that when the occurrence is supported by the eyewitnesses, the motive becomes immaterial, but in the
present case, the prosecution has alleged one motive in the FIR and has alleged another specific motive in the evidence of the witnesses, but has failed
to prove both these motives and this makes the prosecution case absolutely doubtful. This apart, the fact remains that except the father, son and
brother of both the deceased, none of the independent witnesses have come forward to support the prosecution case. Even P.W.-2 Manoj Kumar
Gupta has admitted in his cross-examination that no witness of the village had given any statement before the police, and even P.W.-7 Shyam Kishore
Ranjan, the I.O of the case has clearly stated in his cross-examination that except the family members of both the deceased, he had not recorded the
statements of any witnesses of the village. This also clearly makes the entire prosecution case absolutely doubtful, when admittedly, according to
P.W.-1 Harish Kumar Singh, there were about 500 houses in the village, in which, the people of almost all castes were residing, and even according to
the evidence of P.W.-4 Jagdish Prasad Singh, people of almost all castes were residing in the village, he was residing in the village for the last 45-50
years and he was also the Mukhiya of the village and he had good relationship with all of them, but in spite of these facts, no one of the village came
forward to support the prosecution case, even though the gruesome murder of two persons had taken place in the early evening in the village, must be
in the presence of several persons, which makes the prosecution case absolutely doubtful. This apart, all these three prosecution witnesses, who have
fully supported the case as eyewitnesses to the occurrence, have stated in detail, as to which the accused was armed with what weapon. None of
them have stated that any accused was armed with firearm. P.W.-2 Manoj Kumar Gupta and P.W.-4 Jagdish Prasad Singh had gone to the extent of
concealing the fact that no firearm was recovered by the police from the place of occurrence, but the evidence of the I.O., P.W.-7 Shyam Kishore
Ranjan, clearly shows that from near the dead bodies, one country made pistol was recovered. P.W.-4 Jagdish Prasad Singh has also admitted that his
deceased son was an accused in the murder case and there were two criminal cases upon him and he had also been jailed twice. Thus, taking into
consideration this criminal background of the deceased and recovery of firearm near the dead bodies, the genesis of the occurrence is changed
altogether, which genesis has been completely concealed by the prosecution witnesses. The fact that P.W.-7 Shyam Kishore Ranjan, the I.O of the
case has tried to conceal the criminal antecedents of the accused, even though it is admitted by the father of the deceased, also makes the prosecution
case very doubtful. Looking into the criminal background of the deceased, and also the recovery of fire arm from near the dead bodies, as also the
original genesis of the occurrence given in the FIR, the fact that the deceased had themselves taken up the quarrel being armed with pistol, and they
were chased and killed by the villagers, or some enemies, cannot be ruled out. Even the killing of the deceased by the extremists cannot be ruled out,
in view of the evidence of the I.O., P.W.-7 Shyam Kishore Ranjan, that when he reached the village, there was complete silence in the village and he
did not find any person in the village.Â
Not only that the independent witnesses have not been examined in the case, even the persons present in the house of the informant, i.e., the wife
of the informant and two proposed purchasers of land, namely, Binod Sao and Ram Lal Sao, who were admittedly present in the house, and had
witnessed the entire occurrence, have not been examined by the prosecution for the reason best known to the prosecution. The story that after the
occurrence the informant and other persons had concealed themselves in the house and they opened the house only after the police came and
disclosed the identity, is again very doubtful, firstly because these facts are not stated in the FIR, rather these facts have come for the first time during
the evidence of the prosecution witnesses, and it is also admitted by the I.O., P.W.-7 Shyam Kishore Ranjan, that these facts are not mentioned in the
case diary. Secondly, the conduct of these witnesses is also very doubtful, inasmuch as no father, son or brother whose father, son, and brother shall
be murdered in his presence in such a manner, shall keep themselves confined in the house and not take steps to inform the police, even though the
Police Station was only at a distance of about 15 Km. The excuse given by the witnesses for the first time during trial, that they did not inform the
police due to fear, appears to be only a lame excuse.Â
We find force in the submission of the learned counsels for the appellants that these witnesses may not even be present at the place of
occurrence, also from the fact that none of these witnesses are the signatories either to the inquest reports of the dead bodies or to the seizure list.
The fact that the signatories to these documents are not even the villagers, and only the persons of other villages are the witnesses to these
documents, also casts considerable doubt on the prosecution case.Â
We also find that there is no specific allegation of assault against any of the accused, rather there is only omnibus allegation of chasing and
assaulting both the deceased persons against all the accused persons. The prosecution has failed to prove the fact that the offence had been
committed in a pre-planned manner and accused persons were having the common object to commit the murder of both the deceased. In that view of
the matter the conviction of the appellants with the help of Section 149 of the Indian Penal Code, cannot be sustained in the eyes of law.
For the foregoing reasons we are of considered view that the entire prosecution case is full of doubts and even though, three witnesses have
supported the prosecution case as eyewitness, it is not at all safe to base the conviction of the accused persons on the evidence of only the highly
interested witnesses, particularly when their conducts become very doubtful. In the facts of this case, we find that the appellants are entitled to the
benefits of doubt and the impugned Judgments of conviction and Orders of sentence passed by the Trial Courts below cannot be sustained in the eyes
of law.Â
Accordingly, the impugned Judgment of conviction and Order of sentence dated 15.09.2006, passed by the learned 4th Additional Sessions Judge,
Fast Track Court, Garhwa, in Sessions Trial No. 43 of 2005, and the impugned Judgment of conviction dated 29.04.2009 and Order of sentence dated
02.05.2009, passed by the learned 1st Additional Sessions Judge, Garhwa, in S.T. No. 43(A) of 2005, convicting and sentencing the accused
appellants, Pramod Chandravanshi, Sujit Chandravanshi @ Dara, Â Shyam Sunder Chandravanshi, Akalu Ansari, Sakur Ansari, Shyam Sunder Pal,Â
Ram Krishna Pal @ Ram Kishun Pal, Kadam Ansari @ Kadam Rasul Ansari,  Chandradeo Sao, Rustam  Ansari, Shalim Ansari and
Ram Karesh Chandravanshi @ Karesh Ram, for the offences under Sections 147, 148 & 302 / 149 of the Indian Penal Code, are hereby, set aside.
Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charges. The appellants, Shyam Sunder Pal and Kadam
Ansari @ Kadam Rasul Ansari are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention
is not required in any other case. All the other appellants are on bail and they are discharged from the liabilities of their respective bail bonds.Â
27.   In the result, all these five appeals, are hereby, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith,
along-with the copy of this Judgment.
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