# Amar Singh & Ors v. State of U.P

- **Citation:** (2024) 3 ILRA 217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-26
- **Case number:** Criminal Appeal No. 4677 of 2002
- **Bench:** Siddharth, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-ors-v-state-of-u-p-51634
- **Pages:** 13

## Headnote

(A) Criminal Law - Acquittal from Murder
Charges - Indian Penal Code, 1860 -
Section 302 - murder, Section 149 -
unlawful assembly - Common object -
Unlawful assembly - Constructive liability
- Vicarious liability - Exhortation - The
Code of criminal procedure, 1973 - Section
216 - Court may alter charge , Section 217
- Recall of witnesses when charge altered
- Mere presence in an assembly without
proof
of
common
object
cannot
be
stretched to such an extent so as to
implicate the innocent person - Common
object and knowledge of that object by
the accused must be proven - witness
whose evidence is essential for unfolding
the
narrative
must
be
produced
in
evidence. (Para - 18, 19, 23,25)

(B) Criminal Law - Indian Penal Code,
1860 - Section 149 - To convict someone
under Section 149, the prosecution must
establish (i) There was an unlawful
assembly (ii) An offense was committed
by a member of the assembly (iii) The
offense was committed in prosecution of
the common object of the assembly, or the
218 INDIAN LAW REPORTS ALLAHABAD SERIES
members knew it was likely to be
committed.(Para - 20)

(C) Interpretation of Statute - Section 149
I.P.C allows constructive liability to all
members of an unlawful assembly, if an
offense is committed in the prosecution of
the common object or if the assembly
knew it was likely to be committed -
Prosecution must prove the formation and
knowledge
of
the
assembly
beyond
reasonable doubt, using cogent evidence.
(Para - 18,19)

Murder case involving six accused - Allegation of
unlawful assembly with common object -
Discrepancies
in
witness
statements
and
evidence - trial court convicted accused under
Section 302 read with Section 149 IPC - leading
to present appeal. (Para - 4 to 8 ,18,19)

HELD: - Delay in lodging FIR, discrepancies in
witness testimonies, non-examination of a
crucial witness (wife of the deceased), and lack
of direct evidence weakened the prosecution's
case. Court finds insufficient evidence to convict
all six accused under Section 149. Judgment
and order of trial court set aside. Appellants
acquitted of charges under Section 302/149 IPC.
Bail bonds cancelled and sureties discharged.
(Para - 18,24,25,26 )

Appeal allowed. (E-7)

LIST OF CASES CITED: -

## Text

_Characters 0–39,094 of 44,317. This is a partial read: ask again with offset=39094 for what follows._

3 All. Amar Singh & Ors. Vs. State of U.P.
217

I. It has come in the statement of
PW-8, Investigation Officer that during
investigation
he
has
recorded
the
statements of one Vishwajeet Singh, the
other son of informant, his wife Mayadin
and son-in-law Ajeet but none of these
witnesses
were
examined
by
the
prosecution to prove the fact of extramarital affair of Sanjoo and Saleem,
specially when PW-8 has stated that no
evidence has come on record in this regard.

49. Therefore, in the absence of
prosecution having been able to prove any
motive towards the appellant, conspiracy
between him and Sanjoo who stands
acquitted by the trial court holding that the
conspiracy is not proved between them, the
conviction of appellant is not sustainable in
view of the judgements in Laxman Prasad
vs. State of Madhya Pradesh (supra),
Pritinder Singh vs. State of Punjab
(supra) and Pradeep Kumar vs. State of
Haryana (supra)
and
the
fact
that
prosecution has failed to prove a complete
chain of evidence against the appellant.

50. Accordingly, this appeal is
allowed. Judgment of conviction and order
of sentence dated 04.06.2019 are set aside.

51. The appellant is acquitted of the
charge. He be released from the judicial
custody forthwith, if not required in any
other case.

52. The bail and surety bonds, if any,
are discharged. Any pending application is
also disposed of as infructuous. Record and
proceedings be sent back to the Trial Court
forthwith.
----------
(2024) 3 ILRA 217
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 4677 of 2002

Amar Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri V.S. Singh, Sri Amrendra Pratap Singh,
Sri Lavesh Sharma, Sri Narendra Kumar
Singh, Sri Rabindra Bahadur Singh, Sri
Ravindra Sharma

Counsel for the Respondent:
G.A., Sri Anand Pratap Singh, Sri Aryan
Srivastava, Sri Prakash Chandra Srivastava

(A) Criminal Law - Acquittal from Murder
Charges - Indian Penal Code, 1860 -
Section 302 - murder, Section 149 -
unlawful assembly - Common object -
Unlawful assembly - Constructive liability
- Vicarious liability - Exhortation - The
Code of criminal procedure, 1973 - Section
216 - Court may alter charge , Section 217
- Recall of witnesses when charge altered
- Mere presence in an assembly without
proof
of
common
object
cannot
be
stretched to such an extent so as to
implicate the innocent person - Common
object and knowledge of that object by
the accused must be proven - witness
whose evidence is essential for unfolding
the
narrative
must
be
produced
in
evidence. (Para - 18, 19, 23,25)

(B) Criminal Law - Indian Penal Code,
1860 - Section 149 - To convict someone
under Section 149, the prosecution must
establish (i) There was an unlawful
assembly (ii) An offense was committed
by a member of the assembly (iii) The
offense was committed in prosecution of
the common object of the assembly, or the
218 INDIAN LAW REPORTS ALLAHABAD SERIES
members knew it was likely to be
committed.(Para - 20)

(C) Interpretation of Statute - Section 149
I.P.C allows constructive liability to all
members of an unlawful assembly, if an
offense is committed in the prosecution of
the common object or if the assembly
knew it was likely to be committed -
Prosecution must prove the formation and
knowledge
of
the
assembly
beyond
reasonable doubt, using cogent evidence.
(Para - 18,19)

Murder case involving six accused - Allegation of
unlawful assembly with common object -
Discrepancies
in
witness
statements
and
evidence - trial court convicted accused under
Section 302 read with Section 149 IPC - leading
to present appeal. (Para - 4 to 8 ,18,19)

HELD: - Delay in lodging FIR, discrepancies in
witness testimonies, non-examination of a
crucial witness (wife of the deceased), and lack
of direct evidence weakened the prosecution's
case. Court finds insufficient evidence to convict
all six accused under Section 149. Judgment
and order of trial court set aside. Appellants
acquitted of charges under Section 302/149 IPC.
Bail bonds cancelled and sureties discharged.
(Para - 18,24,25,26 )

Appeal allowed. (E-7)

LIST OF CASES CITED: -
1. V.R. Patel Vs R.D. Patel, AIR, 2018 SC. 2472

2. Subal Ghorai & ors. Vs St. of W.B., 2013(4)
SCC 607

3. Roy Fernandes Vs St. of Goa, 2012(3) SCC
221

4. Chikkarange Gowda & Ors. Vs St. of Mysore,
AIR 1956 SC 731

5. Gajanand & Ors. Vs St. of U.P., AIR 1954 SC
695

6. Ram Charan Rai Vs Emperor, AIR 1946 Pat
242
7. Mizaji & Anr. Vs St. of U.P., AIR 1959 SC 572
8. Shambhu Nath Singh & ors. Vs St. of Bihar,
AIR 1960 SC 725

9. Gangadhar - Behera & ors. Vs St. of Orissa
,2002 (8) SCC 381

10. Bishna @ Bhiswadeb Mahato & ors. Vs St. of
W.B. ,2005 (12) SCC 657

11. Haramant Laxmappa Kukkadi Vs St. of
Karn., 1994(1) SCC 736

12. Balwantbhai B. Patel Vs St. of Guj. & ors.,
2009-0-Supreme Court (SC)1557

13. The St. of U.P. & anr. Vs Jaggo @ Jagdish &
ors., AIR 1971, SC 1586

(Delivered by Hon'ble Siddharth, J.)

1. Heard Shri Ravindra Sharma, Shri
N.K. Singh and Shri R.B. Singh, learned
counsel
for
the
surviving
appellant
nos.3,5,and 6; Shri Rishab Srivastava,
learned counsel for the informant and Shri
Sushil Kumar Pandey, learned A.G.A.-Ist.

2. This criminal appeal has been
preferred against the judgement and order
dated 17.10.2002, passed by Additional
Sessions Judge(Fast Track Court No.3),
Agra in Sessions Trial No. 471 of 1996,
convicting and sentencing the appellants
under section 302 read with section 149
I.P.C. to undergo life imprisonment and a
fine of Rs. 5,000/- against each accusedappellant and in case of non-payment of
fine, to undergo one year's R.I.

3. This appeal has already been
dismissed as abated against appellant no.1,
Amar Singh, appellant no.2, Raghuraj
Singh and appellant no.4, Ram Saran by the
order of this court dated 12.1.2024.The
appeal has been pressed only regarding
surviving appellant nos. 3,5 and 6,namely,
Devendra Singh, Kehari Singh and Rakesh
Kumar.
3 All. Amar Singh & Ors. Vs. State of U.P.
219

4. The prosecution case as per First
Information Report is that in the night of
about
19/20.12.1995,
uncle
of
the
informant, Gyan Singh and his aunt, Smt.
Urmila were sleeping in their baithak
(drawing room) when at about 2.30-3.00
A.M., Gyan Singh heard some noise
regarding presence of some persons outside
his Baithak. He called from inside, who is
there? On this his wife, Urmila, also
awoked. An earthen lamp was burning
inside the Baithak. Gyan Singh, opened the
door to see who is outside when covillagers, Amar Singh, Raghuraj Singh,
Devendra Singh, sons of Ajab Singh; Ram
Saran son of Mukut Singh; Kehri Singh son
of Mantoo Singh and Rakesh Kumar son of
Ramesh Singh Thakur, forced their way
inside the Baithak and caught hold of Gyan
Singh with common object and started
assaulting him. On alarm being raised by
the first informant and Gyan Singh, the
villagers, Hari Om son of Vishambhar,
Rajendra Singh son of Sobha Ram and
many others came running,who saw the
incident. In the meantime accused persons,
after causing murder of Gyan Singh, ran
towards the northern side. Informant and
other witnesses saw the accused persons
well in the light of earthen lamp and
torches. Yesterday on 19.12.1995, the Bahu
(daughter-in-law) of accused, Raghuraj
Singh, was making cow dung cakes, when
the deceased, Gyan Singh, was coming
from his agricultural field. Daughter-in-law
of Raghuraj Singh made complaint at her
house that Gyan Singh was abusing her. On
account of aforesaid incident all the
accused persons caused the murder of Gyan
Singh.

5. The case was committed by the
C.J.M., Agra to the Sessions Court on
17.6.1996 for trial. The trial court charged
the accused persons for committing the
offence under section 302 I.P.C. They
denied the charges and prayed for trial.

6. Before the trial court informant,
Raj Kumar, was examined as P.W.1;
eyewitness of the incident, Rajendra Singh
was examined as P.W.2; Dr. Anoop Kumar,
who conducted the postmortem of the
deceased was examined as P.W.3,Head
constable Harish Chandra, who proved the
Chik First Information Report and entries
in General Diary(G.D.) was examined as
P.W.4; investigating officer of the case,
M.P. Singh, was examined as P.W.5,
Inspector Incharge, Hari Nath Sharma, who
filed the charge sheet against accused and
proved the same was examined as P.W.6.

7. P.W.1, Rajkumar deposed before
the court that in the night of 19/20-12.1995
his uncle Gyan Singh and aunt, Urmila
Devi, were lying in their baithak and an
earthen lamp was burning on the window in
the side of the baithak. At about 2:30-3:00
A.M. in the night presence of some persons
outside the door was felt by his uncle, Gyan
Singh, who waked up and called who is
there?On his call his aunt, Urmila, also
awoke. His uncle opened the latches of
door of the baithak to see the persons
outside
and
he
found
co-villagers,
Raghuraj, Devendra Singh sons of Ajab
Singh ; Ram Sharan son of Mukut, Rakesh
son of Rajesh Singh standing near the door.
All of them with surrounded his uncle
Gyan Singh with common object and
started beating him. Raghuraj had Ballam ;
Ram Saran caught hold of Gyan Singh;
Amar Singh and Devendra Singh caught
hold
of
his
right
and
left
hands,
respectively. Raghuraj attacked Gyan Singh
by Ballam and Rakesh was exhorting him
to kill Gyan Singh.Kehari was also
exhorting alongwith Rakesh. He raised
alarm and then neighbours, Hari Om Singh
220 INDIAN LAW REPORTS ALLAHABAD SERIES
and Rajendra Singh, etc., came. Except
accused, Rakesh, other accused belong to
his village and he knows them. After
causing murder of his uncle, Gyan Singh,
they ran away towards northern side. He
saw the accused persons in the light of
earthen lamp and torch. He knew them well
and identified them. Torches were in
possession of P.W.1, Hariom and P.W.2,
Rajendra Singh. On the same day at about 4
P.M. when Gyan Singh was returning to his
house from agricultural field, bahu (
daughter-in-law) of accused Raghuraj was
making cakes of cow dung. She went to her
house and icomplained that Gyan Singh
was abusing her, resultantly accused
persons developed enmity against Gyan
Singh. Due to fear he did not went to the
police station in the night to lodge First
Information Report, when villagers were
willing to accompany him to the police
station.

8. In his cross examination, P.W.1
admitted that earthen lamp was burning on
the window. In the baithak wherein they
were sleeping ,there were two windows and
inside main door earthen lamp was burning
in the room on window of northern side.He
reached the police station at 5-6 A.M. but
inspector was not there and had given
report at 8 A.M. in the police station when
inspector came. He admitted that windows
in the baithak were open and there was no
door in the windows. In his cross
examination, P.W.1 further admitted that
his house is situated at about 100 meters
from the house of deceased Gyan Singh.
His wife had gone to her parents house at
the time of alleged incident. At that time
Gyan Singh was aged about 35 years and
his wife,Urmila was aged 32-33 years. In
the room where there was also a 1/1/2 years
old child of his aunt , Urmila who was also
sleeping. Gyan Singh was occasional
drinker but at the time of incident he had
not consumed liquor. In the suggestion he
stated that he used to sleep in the same
room with his uncle and aunt. He used to
ply tractor of Gyan Singh and his
cultivation.
He
denied
his
illicit
relationship with his aunt, Urmila and
causing murder of his uncle, Gyan Singh,
because of such relationship with Urmila.
P.W.2,
Rajendra,
was
stated
to
be
grandfather of Gyan Singh, who used to
reside in different room. Before the
incident accused persons had never abused
or beaten Gyan Singh.He could not
mention ballam in the First Information
Report due to nervousness. He admitted
that his aunt, Urmila and P.W2 raised alarm
but he could not mention the same in First
Information Report. Apart from Rajendra
and Hariom number of other villagers came
at the time of incident. As soon as his uncle
opened the latches of the door accused
persons caught hold him and had beaten
him. Then he raised alarm and witnesses
came within 1-2 minutes and saw the
incident. He admitted that he has not
mentioned this fact in the First Information
Report that witnesses had come inside the
room. His uncle was wearing Kurta and
Payjama wherein blood stains was there.
The accused person had made him naked
after beating. Prior to the incident Gyan
Singh was implicated in a case but what
was that case he could not state before the
court.He admitted that there was no enmity
with accused person earlier but after
incident enmity has cropped up.He finally
stated that he gave his torch to the
inspector.

9. P.W.2, Rajendra Singh,deposed
before the court that at the of incident he
was in his house .After hearing the noise
his wife who was sleeping with him, said
that there noise is coming. He took his
3 All. Amar Singh & Ors. Vs. State of U.P.
221
torch and went to house of Gyan Singh,
where he saw Amar Singh catching hold of
one hand of Gyan Singh and other hand of
Gyan Singh was caught hold by Devendra.
Ram Saran was catching hold of Gyan
Singh. He was asking Raghuraj to assault
Gyan Singh by ballam. Kehari was
standing. Raghuraj caused injury to Gyan
Singh by Ballam on his head which hit his
neck.This incident took place inside the
house of Gyan Singh and Hariom also
came at the scene of occurrence. Both
raised alarm and then accused persons ran
away. Gyan Singh died on the spot.
Accused persons belong to his village. He
knows them well since before the time of
incident. He had seen accused persons in
the light of earthen lamp and torch. He had
provided torch to the inspector. After
preparing memo historch was returned but
his signature was not taken on the memo
prepared by the investigating officer.

10. In his cross examination P.W.2
admitted that he is residing with Raj
Kumar, P.W.1, in the same house. Gyan
Singh used to reside in different house.
Gyan Singh was his nephew. There are two
windows on eastern and southern side of
the house of the Gyan Singh. There is no
door in the eastern wall in the house of
Gyan Singh. There are no doors and
windows of his house.The door shown in
the eastern wall by the investigating officer
in the site plan is wrong.He reached the
place of incident first and thereafter
Hariom reached there. His wife got him
awake
after
hearing
the
noise.
He
recognized voice of wife of the deceased ,
Urmila and P.W.1, Raj Kumar and hence he
went there .There is no wall between the
room of Gyan Singh and Khadanja road in
front of his house. At the time of alleged
incident Gyan Singh was wearing Kurta
and underwear. He denied suggestion that
he was not there at the time of incident.

11. P.W.3, Dr. Anoop Kumar, stated
that deceased suffered one incised wound 3
cm x 1 cm x Cavity deep front of middle
neck and two abrasions of 2cmx 2 cm and 4
cm. X 3cm on back of neck and left
shoulder respectively. Mud was found on
the dead body of the deceased. In internal
examination windpipe of the deceased was
found ruptured and left artery of the
deceased was also found ruptured. Cause of
death of deceased was found to be shock
and haemorrhage as a result of antemortem
injuries.

12. P.W.4, H.C., Harish Chandra,
proved the lodging of First Information
Report by the informant at 8.10 A.M. on
20.12.1995 and making entry in the general
diary.

13. P.W.5, , investigating officer,
proved record of his investigation and
evidence
collected
by
him
during
investigation. He denied that at the time of
inquest, First Information Report was not
lodged. During cross examination he
admitted that he had shown the door in the
house of the deceased and two windows
without doors. He admitted that statement
of the wife of the deceased, Urmila, was
recorded
by
subsequent
investigating
officer after his transfer.He admitted
making memo of recovery of torch but not
taking the same in possession. He further
stated that P.W.2 informed him that when
he raised alarm Rajendra and Hariom came
there.Rajendra was not eye witness of the
incident.

14. P.W.6, Hari Nath Sharma, proved
recording of the statement of the wife of
222 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased, Urmila and statements of other
accused persons.

15. Learned counsel for the appellants
has advanced following arguments:

(i) That there is unexplained
delay in lodging the First Information
Report. The incident is alleged to have
taken place in the intervening night of
19/20.12.1995 between 2.30-3.00 A.M. but
the First Information Report was registered
on 20.12.1995 at 8.10 A.M. when the
distance of the police station from the place
of incident was only six kilometres. He has
submitted that the delay in lodging the First
Information Report assumed significance
when P.W.1 explained that on account of
fear, he did not lodged the First Information
Report earlier but he admitted in his
statement that villagers were ready to
accompany him to the police station but on
account of fear he did not went to police
station at night;

(ii) that in the chik report the
distance of police station is 6 kilometres,
when according to the inquest report it is 8
kilometres. There is no mention of names
of the accused in the inquest report nor
there is mention of crime number on the
photograph
of
dead
body.
P.W.5,
investigating officer was cross examined on
these points but he could not give
satisfactorily reply to the questions put up
before him in this regard. All the
discrepancies in the police papers indicate
that the First Information Report was ante-
timed and was not in existence at the time
of preparation of these papers. Nobody has
seen the incident and First Information
Report was lodged only on guess work;

(iii) that as per allegations in the
First Information Report deceased heard
some noise regarding presence of some
people outside and when he opened the
door, accused persons forced their way
inside and caused his murder;

(iv) that the site plan prepared by
the
investigating
officer,
shows
that
deceased was sleeping in room situated in
eastern side of his house which did not had
any doors nor windows. P.W.1, Raj Kumar
and P.W.2, Rajendra Singh , have admitted
this fact in their cross examination that
there was no wall between the Khadanja
road and the room of deceased, Gyan
Singh. Prosecution story is belied by the
fact that there was no wall, not to say doors
and windows, in the room where the
deceased was sleeping with his wife in the
night. Therefore prosecution case regarding
opening of door by the deceased which
allowed the entry of the accused inside the
house was absolutely false;

(v) that there is single injury on
the neck of the deceased as per doctor,
P.W.3. The trachea of the deceased was
found lacerated and carotid artery was
found ruptured;

(vi) that First Information Report
version and eyewitness account of the
incident that the incident took place inside
the room is doubtful. The autopsy doctor,
P.W.3, has stated in his evidence that the
dead body of the deceased was stained in
mud but this fact was not disclosed in the
inquest report. Deceased may have gone
out in the field to urinate in the night and
was murdered there by some one and
thereafter his dead body was brought inside
and the case with eyewitness account was
set up. The urinary bladder of the deceased
was found to be empty by the doctor, which
proves that he had gone out to urinate;

(vii) that trial court charged the
accused persons under section 302 I.P.C.
simpliciter but has convicted them with aid
of section 149 I.P.C. without altering or
amending the charge under section 216
Cr.P.C. and recalling and re-examining the
3 All. Amar Singh & Ors. Vs. State of U.P.
223
witnesses as per section 217 Cr.P.c., hence
conviction of the appellants under section
302/149 I.P.C. cannot be sustained. The
common object of six accused was not
proved before the trial court;

(viii) that conviction of the
appellant under section 302/149 I.P.C. is
erroneous on another count also. None of
them were assigned any specific role or
overt act and were not alleged to be
carrying any weapon. Subsequently P.W. 1,
improved the prosecution case in his
examination in-chief and stated that it was
accused Raghuraj, who pierced Ballam in
the neck of the deceased. Co-accused,
Rakesh and Kehari Singh, were exhorting
him.
Co-accused,
Amar
Singh
and
Devendra Singh, were assigned the role of
catching hold of hands of the deceased. The
role of exhortation assigned to Khehari
Singh and Rakesh is not convincing since if
they had gone in the night to commit
alleged offence with common object in
planned manner, there was no need of
exhortation of other co-accused which was
sufficient for enabling the witnesses to
wake up and see the incident;

(ix) that P.W.1, Raj Kumar, who
was nephew of the deceased, Gyan Singh,
has his own Pakka house at the distance of
100 meters from the house of deceased
which he admitted in his statement before
the trial court. The deceased, Gyan Singh,
was 35 years of age and his wife, Urmila,
was aged 32 years at the time of incident
and why P.W.1, who was nephew of Gyan
Singh, was sleeping in their house has not
been explained. It has been submitted that
presence of P.W.1, in the house of the
deceased is not explained;

(x) that wife of the deceased,
Urmila, who was admittedly present with
the deceased and as per First Information
Report version got awake at the time of
incident, was not produced as witness
before the trial court. P.W.1, Raj Kumar is
real nephew of the deceased and P.W.2,
Rajendra Singh is grand father of the
deceased. P.W.5, M.P. Singh, has stated in
his statement that P.W.2, Rajendra Singh,
was not an eyewitness of the case. The
conviction of the appellants on the basis of
testimony of P.W.1, who was an interested
and partisan witness, is highly unsafe and
not sustainable. Wife of the deceased, Smt.
Urmila was examined by the P.W.6,
Inspector,Hari Nath Sharma during the
investigation and her statement under
section 161 Cr.P.C. was recorded but her
non-examination before the trial court
creates doubt about the prosecution case.
Smt. Urmila was the best witness of the
case, whose testimony was never got
recorded before the trial court;

(xi) that the prosecution has
failed to prove that there was sufficient
light in night to identify the accused
persons in the light of earthen lamp.
Prosecution
story
does
not
inspires
confidence. The earthen lamp was stated to
be kept on window (Jangala) when it was
proved that there is no window or door in
the room. The story of seeing the accused
persons in the torch light was subsequently
cooked up but no torch was recovered by
the investigating officer;

(xii) that the time of incident
alleged in the First Information Report
makes the case doubtful. The autopsy
doctor, P.W.3, found watery fluid with
small food particles in the stomach of the
deceased and his bladder was empty, which
proved that incident had taken place at
about 11-12 P.M.. In villages people take
dinner by 6-7 P.M. The doctor admitted that
food takes six hours time to get fully
digested but food was not found fully
digested in the stomach of the deceased
since his stomach was not empty between
2.30-3.00 A.M. ;
224 INDIAN LAW REPORTS ALLAHABAD SERIES

(xiii) that accused, Raghuraj, had
allegedly pierced Ballam in the neck of the
deceased, but the injury found was incised
in nature which the doctor admitted cannot
be caused by Ballam which causes
punctured wound.

(xiv) that P.W.1 stated that
deceased was wearing Kurta and Pajama at
the time of alleged incident, when as per
inquest report, he was found to be wearing
only shirt and underwear. P.W. 3, doctor,
found that the deceased was found wearing
Kurta and Underwear. P.W. 1 stated in his
statement that the accused persons disrobed
the deceased after beating him but he did
not explained why dead body of deceased
was not found to be naked and found
wearing Kurta and underwear. He has
submitted
that
prosecution
story
is
doubtful;

(xv) that motive of the crime
alleged that the daughter-in-law (Bahu) of
the co-accused, Raghuraj, had complained
that while she was making cakes of cow
dung, deceased had abused her and
therefore six persons committed murder of
the deceased does not sounds credible.
There is no evidence that any altercation
took place after deceased abused the
alleged women. Directly murder of the
deceased was caused by six persons. He
has further submitted that P.W.1 was aged
about 24 years and admitted that his wife
had gone to her parental house on the night
of the incident, therefore, he was sleeping
in the house of deceased and his wife
Urmila;

(xvi)
that
there
was
illicit
relationship of P.W.1, aged about 29 years,
with wife of the deceased, who was only
aged about 32 years and P.W.1 with the
help of wife of deceased may have caused
murder of the deceased in the night. This
was the reason why the wife of deceased
never appeared in the witness box. This
was also the reason why First Information
Report was not promptly lodged. Number
of co-villagers were alleged to have seen
the incident but none of them were named
and examined before the trial court.
Prosecution case has not been proved
beyond reasonable doubt. The defence has
pointed out sufficient discrepancies in the
prosecution case, which is sufficient for
acquitting the surviving appellants of all
the charges.

16. Learned counsel for the informant
and learned A.G.A have vehemently
opposed the submissions made by the
learned counsel for the appellants. They
have
submitted
that
hyper-technical
arguments have been made. The torch was
recovered
and
exhibited
by
the
investigating officer as exhibit-12. It has
further been submitted that all the accused
persons had formed unlawful assembly and
committed alleged offence with common
object.

17. They have further been submitted
that non framing of charge under section
149 I.P.C. by the trial court will not be fatal
for the prosecution case since section 149
I.P.C. does creates a separate offence but
only declares vicarious liability of all the
members of unlawful assembly who acted
done with common object. Reliance has
been placed in the judgement of Apex court
in Vinubhai Ranchhodbhai Patel vs
Rajivbhai Dudabhai Patel,AIR, 2018 SC.
2472.They have submitted that allegation
of illicit relationship of the P.W.1 with wife
of deceased, Smt. Urmila, is figment of
imagination and no evidence was led to
prove the same. P.W.1 has explained why
he was present in the house of his uncle and
aunt on the fateful night by deposing that
his wife had gone to her parental house and
therefore he was present in the house of the
3 All. Amar Singh & Ors. Vs. State of U.P.
225
deceased.
They
have
submitted
that
deceased was drunkard and has misbehaved
with daughter-in-law of the appellant,
Raghuraj, hence he was done to death. It
has finally been submitted that prosecution
has proved the case against the appellants
beyond doubt and hence the judgement and
order of conviction and sentence deserves
to be upheld by this court.

18. After hearing rival contentions
this court finds that six persons have been
implicated in this case for committing the
offence under section 302/149 I.P.C. Even
if it is accepted that section 149 I.P.C. does
not creates separate offence but only
declares vicarious liability of all the
accused of unlawful assembly for the act
done with common object, implication
would
not
be
justified
unless
the
ingredients for constituting the offence
under section 149 I.P.C. are established
before the court.

19. Section 149 I.P.C provides for
constructive liability to every person of an
unlawful assembly. If an offence is
committed by any member thereof in
prosecution of 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.
Formation of unlawful assembly having its
common object and knowledge of common
object are matters of fact which are
required to be proved by the prosecution
beyond all reasonable doubt for securing
conviction of an accused under Section 149
I.P.C. There cannot be any straight jacket
formula to arrive at a finding as to who was
the member of unlawful assembly and for
which object the same was formed. It can
be inferred and proved by the cogent
evidence only.

20. Section 149 I.P.C has following
three essentials (i) there must be unlawful
assembly; (ii) commission of offence may
be by any member of unlawful assembly;
(iii)
such
offence
must
have
been
committed in prosecution of the common
object of the assembly, or must be such as
member of the assembly knew to be likely
to be committed.

21. The concept of constructive
liability must not be so stretched as to lead
to false implication of innocent person or if
general allegations are made against large
number of accused, the Court has to be
cautious unless reasonable direct and
indirect circumstances lend assurance to the
prosecution case that all the accused shared
common object of unlawful assembly and
hence their implication / conviction not be
justified, as held by the Apex Court in the
case of Subal Ghorai and others Vs. State
of West Bengal, 2013(4) SCC 607. Ready
reference to paragraph 53 would be
relevant :-

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, 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 of the 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
226 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

(13) Apex Court has also cautioned
that when there is sudden action by one
member in the assembly, all are not liable.
In the case of Roy Fernandes Vs. State of
Goa, 2012(3) SCC 221, it was held that a
group attack on the victim is not the only
decisive factor to infer common object of
the unlawful assembly. It would be useful
to refer to paragraph 27 to 33 in this
context :-

27. This Court has in a long line
of decisions examined the scope of Section
149 of the Indian Penal Code. We remain
content by referring to some only of those
decisions to support our conclusion that the
appellant could not in the facts and
circumstances of the case at hand be
convicted under Section 302 read with
Section 149 of the IPC.

28. In Chikkarange Gowda &
Ors. Vs. State of Mysore [AIR 1956 SC
731] this Court was dealing with a case
where the common object of the unlawful
assembly simply was to chastise the
deceased. The deceased was, however,
killed by a fatal injury caused by certain
member of the unlawful assembly. The
court below convicted the other member of
the unlawful assembly under Section 302
read with Section 149 IPC. Reversing the
conviction, this Court held:

"9. It is quite clear to us that on
the finding of the High Court with regard to
the common object of the unlawful
assembly, the conviction of the appellants
for an offence under Section 302 read with
Section 149 Indian Penal Code cannot be
sustained. The first essential element of
Section 149 is the commission of an offence
by any member of an unlawful assembly;
the second essential part is that the offence
must be committed in prosecution of the
common object of the unlawful assembly, or
must be such as the members of that
assembly knew to be likely to be committed
in prosecution of the common object.

In the case before us, the learned
Judges of the High Court held that the
common object of the unlawful assembly
was merely to administer a chastisement to
Putte Gowda. The learned Judges of the
High Court did not hold that though the
common object was to chastise Putte
Gowda, the members of the unlawful
assembly knew that Putte Gowda was likely
to be killed in prosecution of that common
object. That being the position, the
conviction under Section 302 read with
Section 149 Indian Penal Code was not
justified in law."

29. In Gajanand & Ors. Vs. State
of Uttar Pradesh [AIR 1954 SC 695], this
Court approved the following passage from
the decision of the Patna High Court in
Ram Charan Rai Vs. Emperor [AIR 1946
Pat 242]:

"Under Section 149 the liability
of the other members for the offence
committed during the continuance of the
3 All. Amar Singh & Ors. Vs. State of U.P.
227
occurrence rests upon the fact whether the
other members knew before hand that the
offence actually committed was likely to be
committed in prosecution of the common
object. Such knowledge may reasonably be
collected from the nature of the assembly,
arms or behavior, at or before the scene of
action. If such knowledge may not
reasonably be attributed to the other
members of the assembly then their liability
for the offence committed during the
occurrence does not arise".

30. This Court then reiterated the
legal position as under:

"9........The question is whether
such knowledge can be attributed to the
appellants who were themselves not armed
with sharp edged weapons. The evidence
on this point is completely lacking. The
appellants had only lathis which may
possibly account for Injuries 2 and 3 on
Sukkhu's left arm and left hand but they
cannot be held liable for murder by
invoking the aid of Section 149 IPC.
According to the evidence only two persons
were armed with deadly weapons. Both of
them were acquitted and Sosa, who is
alleged to have had a spear, is absconding.
We are not prepared therefore to ascribe
any knowledge of the existence of deadly
weapons to the appellants, much less that
they would be used in order to cause
death."

31. In Mizaji and Anr. Vs. State
of U.P. [AIR 1959 SC 572] this Court was
dealing with a case where five persons
armed with lethal weapons had gone with
the common object of getting forcible
possession of the land which was in the
cultivating possession of the deceased.
Facing resistance from the person in
possession, one of the members of the
assembly at the exhortation of the other
fired and killed the deceased. This Court
held that the conduct of the members of the
unlawful assembly was such as showed that
they were determined to take forcible
possession at any cost. Section 149 of IPC
was, therefore, attracted and the conviction
of the members of the assembly for murder
legally justified.

32. This Court analysed Section
149 in the following words:

"6. This section has been the
subject matter of interpretation in the
various High Court of India, but every case
has to be decided on its own facts. The first
part of the section means that the offence
committed in prosecution of the common
object must be one which is committed with
a view to accomplish the common object. It
is not necessary that there should be a
preconcert in the sense of a meeting of the
members of the unlawful assembly as to the
common object; it is enough if it is adopted
by all the members and is shared by all of
them. 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. Even if the
offence
committed
is
not
in
direct
prosecution of the common object of the
assembly, it may yet fall under section 149
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 when in
a village a body of heavily armed men set
out to take a woman by force, 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. Similarly, if
a body of persons go armed to take forcible
possession of the land, it would be equally
right to say that they have the knowledge
that murder is likely to be committed if the
228 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances as to the weapons carried
and other conduct of the members of the
unlawful assembly clearly point to such
knowledge on the part of them all."

33. In Shambhu Nath Singh and
Ors. Vs. State of Bihar [AIR 1960 SC
725], this Court held that members of an
unlawful assembly may have a community
of object upto a certain point beyond which
they may differ in their objects and the
knowledge possessed by each member of
what is likely to be committed in
prosecution of their common object may
vary not only according to the information
at his command but also according to the
extent to which he shares the community of
object.

As a consequence, the effect of
Section 149 of the Indian Penal Code may
be different on different members of the
same unlawful assembly. Decisions of this
Court Gangadhar - Behera and Others Vs.
State of Orissa [2002 (8) SCC 381] and
Bishna Alias Bhiswadeb Mahato and
Others Vs. State of West Bengal [2005 (12)
SCC 657] similarly explain and reiterate
the legal position on the subject.

22. Common object has to be
ascertained from the member-ship, weapon
used and the nature of injuries as well as
other circumstances as held by the Apex
Court in the case of Haramant Laxmappa
Kukkadi Vs. State of Karnataka, 1994(1)
SCC 736..

23.