Suresh Chandra Yadav and Others vs The State Of Bihar

M.P. Varma, J.—The aforementioned appellants have been found guilty of the offence sic u/s 144 of the Indian Penal Code hereinafter to be referred to as "the Code") and each one of them has been sentenced to suffer rigorous imprisonment for one year under the said charge. The appellants were put on trial along with other four accused for various charges punishable under sections 436 and 452 of the Code. Appellant no. 1 Suresh Chandra Yadav was further charged for offences u/s 436 read with 109 of the Code and appellant no. 3 Genda Yadav was charged u/s 436 of the Code on the allegation that he set fire to a dwelling house belonging to the informant (p.w. 7).

Short facts of the case are these. All the aforementioned appellants in the company of other four accused, namely, Lakhan Yadav, Siyaram Yadav, Raghubir Yadav, and Shia alias Shiva Musbar (all acquitted) being variously armed came to the house of the informant (p.w. 7) Bishwanath Mandal and intended to cause hurt to him and that in prosecution of the said comn on object of that unlawful assembly, appellant no. 3 Genda Yadav on" being instigated by appellant no. 1 set fire to the dwelling house. It is the case of the prosecution that, when the mob reached the house of the informant (p.w. 7) shouting slogans for making an attack on him, the informantion inside the house and bolted the room from inside. Further prosecution-case is that sic were made by the members of the unlawful assembly to break open the door in course of which some of them, as stated above, set fire to a thatched room attached to the house belonging to the informant. According to the prosecution, this room was used as a dwelling house.

The prosecution examined 8 witnesses in all including the Investigation Officer (p.w. 8) Mumtaz Hussain who was then attached to the Singheshwar Police Station is the district of Saharsa (now Madhopura) who drew up the first information report on the statement of p.w. 7 and instituted the case. After investigation, p.w. 8 submitted chargesheet on the basis of which the Court below took cognizance of the offence, and after the preliminary inquiry under Chapter XVIII of the old Code of Criminal procedure, the appellants were committed to the Court of Session to take their trial on the charges as aforesaid. The trial Court by its judgment dated 9.6.1975 acquitted the four accused as described above and held these appellants guilty of the charges aforesaid. In view of the findings given by the trial Court in the concluding portion of the judgment at para 19, I think it not necessary to discuss in detail the evidence of the witnesses examined in this case. The findings of the Court below are as follows :--

In view of my finding that the charge u/s 144-I.P.C. has not been brought home to the accused persons namely Lakhan Yadav, Siya Ram Yadav, Raghubir Yadav and Siba alias Siban Musahar, I hold that these four accused persons are entitled to benefit of doubt. They ate accordingly given benefit of doubt and acquitted of the charge u/s 452 I.P.C. The charge u/s 436 I.P.C. has not at all been brought home to the accused Genda Yadav and as such he is given benefit of doubt and acquitted of the charge u/s 436 I.P.C. The charge u/s 436 I.P.C. read with section 109 I.P.C. has not at all been brought home to the accused Suresh Chanda Yadav. He is accordingly given benefit of doubt and acquitted of the charge u/s 436 I.P.C read with section 109 I.P.C.

In view of the findings as given by the trial Court, it is hard to sic the conviction of the rest of the accused appellants u/s 144 of the Code.

Learned counsel appearing for the appellants while making submissions has urged, and, in my opinion, rightly, that the trial Court has not discussed specifically in the impugned judgment with regard to the common object of these appellants who are said to have formed an unlawful assembly. It has also been urged that there was vague allegation made by the informant (p.w. 7) that the accused persons had come to his house to cause hurt to him and the evidence was led to show that they broke open the doors and some of them effected entries inside, whereas some other accused put thatched portion of the house on fire. On the aforesaid facts as mentioned in the first information report and as stated by some of the witnesses, the trial Court framed a charge u/s 452 of the Code against all the appellants. Needless to mention that the charge u/s 452 of the Code enumerates punishment for committing house trespass, having made preparation, for causing hurt to any person or for assaulting any person, or for wrongfully restraining the person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint. On all these facts as pointed out above, the trial Court recorded a clean finding that the prosecution failed to bring home the charges against these appellants for the offence punishable u/s 452 of the Code. To make it more clear, the learned counsel rightly urged that the prosecution could not prove that there was any attempt by any one of the members of the assembly to cause hurt either to the informant (p.w. 7) or any other member of his family. The trial Court while questioning and recording statements of the accused-appellants did not ask any specific question with regard to the common object of the assembly of which these appellants were said to be the members. To sustain a charge u/s 144 of the Code, the prosecution must prove that it was an unlawful assembly. In view of the fact that the charges having not been proved on all other counts and also in view of the fact that the prosecution has failed to prove that the composition of that assembly was with the object to commit any mischief, criminal trespass or to do any harm to the informant or any other person or in furtherance of the common object of the said unlawful assembly, any member of that assembly committed any such offence the conviction of "the appellants u/s 144 of the Code cannot be sustained. In the result, the appeal succeeds and the order of conviction and sentence imposed upon these appellants by the trial Court is let aside.