# Gorelal Alias Shyam Narain & Ors v. State of U.P

- **Citation:** (2024) 9 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-04
- **Case number:** Criminal Appeal No. 1059 of 1986
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gorelal-alias-shyam-narain-ors-v-state-of-u-p-52577
- **Pages:** 9

## Headnote

(A) Criminal Law - appeal against conviction
- Indian Penal Code, 1860 - Section 302 -
murder, Section 147, 148, 149 - Common
Object - Dying Declaration - Contradictions
- Reliability - "Nemo Moriturus Praesumitur
Mentiri" - "No one on the point of death is
presumed to lie." - when a conviction is to
be done under Section 149 of I.P.C. the
identification of common object is essential
and when the common object is not
identified, the accused cannot be, in any
manner, be convicted under the substantive
offence with the assistance of Section 149
of I.P.C. . (Para -15)

Deceased son (first informant) filed a First
Information Report - accusing seven others -
9 All. Gorelal Alias Shyam Narain & Ors. Vs. State of U.P.
175
investigation led to charges under Sections 148,
302 and 149 IPC - trial court convicted all seven
and sentenced them to life imprisonment, with
the appellants - challenging the conviction under
appeal. (Para - 1 to 6)

HELD: - Prosecution's case was weakened by
dying declaration. Other accused were falsely
implicated by P.W. -1(First Informant) due to
enmity. First Informant's statements were
inconsistent and unreliable. Post-mortem reports
showed firearm injuries of only one size,
contradicting multiple shooters. Contradictions
in prosecution witnesses' statements made them
unreliable. Conviction under Section 149 of the
Indian Penal Code (IPC) requires establishing a
common object among accused persons, and
mere presence at the crime scene is insufficient.
Judgment and order quashed and set aside for
appellants 2, 6 & 7, who are acquitted of the
charges. (Para -17,18)

Criminal appeal allowed. ( E-7)

List of Cases cited:

Vinubhai Ranchhodbhai Patel Vs Rajivbhai
Dudabhai Patel & ors., AIR 2018 SC 2472

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES
Risiya, District Bahraich, to the extent that
it holds the appellant guilty of committing
offences under Sections 302, 201 I.P.C. and
sentences
him
to
undergo
simple
imprisonment for life and pay Rs.50,000/-
as fine and on failure to pay fine, to
undergo simple imprisonment for a further
period of 3 years for the offence under
Section 302 I.P.C. and to undergo simple
imprisonment for and 5 years and pay
Rs.10,000/- fine and in case of failure to
pay fine, to undergo simple imprisonment
for a further period of one year for the
offence under Section 201 I.P.C., is set
aside. The appellant is acquitted of all the
charges.

62. The appellant is languishing in jail
and he is directed to be released forthwith
unless he is wanted in any other case,
subject to the condition that he shall file a
personal bond and two sureties within a
period of three weeks from the date of his
release from custody, to the satisfaction of
the trial Court under Section 437-A Cr.P.C.

63. The appellant was taken into
custody soon after lodging of the F.I.R. on
15.01.2017 and he continues to remain in
custody till date. Now that this Court has
found that there was absolutely no evidence
against him, it is a fit case for awarding
costs of litigation as also to order payment
of compensation for the confinement of the
appellant for a period exceeding 71⁄2 years
without any evidence to prove his guilt
cannot be fully compensated in terms of
money but as a token of compensation for
the injustice done to the appellant, we order
that the State shall pay Rs.1,00,000/- to the
appellant towards compensation for the
period spent by him in custody.

64. Let a copy of this judgment and
order and the original record of the trial
court be transmitted to the trial court
concerned
forthwith
for
necessary
information and compliance as also to Sri
Nand Pratap Ojha, the Presiding Officer
who had passed the impugned judgment.
The office is further directed to enter the
judgment
in
compliance
register
maintained by the Court.
----------
(2024) 9 ILRA 174
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1059 of 1986

Gorelal Alias Shyam Narain & Ors.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
R.C. Singh, Balendra Kumar Singh

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - appeal against conviction
- Indian Penal Code, 1860 - Section 302 -
murder, Section 147, 148, 149 - Common
Object - Dying Declaration - Contradictions
- Reliability - "Nemo Moriturus Praesumitur
Mentiri" - "No one on the point of death is
presumed to lie." - when a conviction is to
be done under Section 149 of I.P.C. the
identification of common object is essential
and when the common object is not
identified, the accused cannot be, in any
manner, be convicted under the substantive
offence with the assistance of Section 149
of I.P.C. . (Para -15)

Deceased son (first informant) filed a First
Information Report - accusing seven others -
9 All. Gorelal Alias Shyam Narain & Ors. Vs. State of U.P.
175
investigation led to charges under Sections 148,
302 and 149 IPC - trial court convicted all seven
and sentenced them to life imprisonment, with
the appellants - challenging the conviction under
appeal. (Para - 1 to 6)

HELD: - Prosecution's case was weakened by
dying declaration. Other accused were falsely
implicated by P.W. -1(First Informant) due to
enmity. First Informant's statements were
inconsistent and unreliable. Post-mortem reports
showed firearm injuries of only one size,
contradicting multiple shooters. Contradictions
in prosecution witnesses' statements made them
unreliable. Conviction under Section 149 of the
Indian Penal Code (IPC) requires establishing a
common object among accused persons, and
mere presence at the crime scene is insufficient.
Judgment and order quashed and set aside for
appellants 2, 6 & 7, who are acquitted of the
charges. (Para -17,18)

Criminal appeal allowed. ( E-7)

List of Cases cited:

Vinubhai Ranchhodbhai Patel Vs Rajivbhai
Dudabhai Patel & ors., AIR 2018 SC 2472

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Ram Manohar Narayan Mishra, J.

1. The present criminal appeal has
been filed against the judgement and order
dated
24.3.1986 passed
by
the 3rd
Additional Sessions Judge, Fatehpur, in
Session Trial No. 416 of 1983 convicting
and sentencing the appellants under Section
302 read with Section 149 IPC for life
imprisonment, under Section 148 IPC for
three years rigorous imprisonment and
under Section 147 IPC for two years with
rigorous imprisonment. All the sentences
were directed to run concurrently.

2. When the alleged incident took
place on 6.5.1983 at around 8:30am a first
information report was got lodged by the
son of the deceased Pramod Kumar Gupta
at 9:25 am on the very same day. In the
first information report, there was a specific
averment that Gorelal son of Badku, Sheo
Ram son of Bajrang, Shatrughan Singh son
of Ganga Singh, Ompal Singh, Rajendra
Singh and Narendra Singh with their guns
and Shiv Singh who was empty handed had
reached the shop where Gopi Krishan was
running his shop. Thereafter, Gorelal had
fired upon the deceased- Gopi Krishna
Gupta. The firing done by Gorelal was
followed by an indiscriminate firing by
Sheoram,
Shatrughan,
Ompal
Singh,
Rejendra Singh and Narendra Singh.

3. Upon the lodging of the first
information report, the police got into
action and investigation followed. A
panchayatnama was prepared stating that
the incident was got reported in the police
station at 9:25am on 6.5.1983 and that the
panchayatnama proceeding commenced on
6.5.1983 at 10:00am and it also stated that
on the very same day at 11:00am the
panchayatnama proceeding got concluded.
After the panchayatnama was concluded,
the dead body of the deceased was sent for
post mortem which was conducted on
6.5.1983 at 4:15PM. It may be mentioned
that the first informant at the time of
getting the F.I.R. lodged had not reported
that the deceased Gopi Krishna had died. It
had only stated that he was lying in an
injured state at his shop. The F.I.R. was
also, therefore, followed by an injury report
dated 6.5.1983 and was allegedly said to
have been prepared at 8:45am. Not only
this, from the record it can be found that
there was a dying declaration also of the
deceased numbered as exhibit - kha 6
which was recorded 8:45am again on the
same day i.e. on 6.5.1983 by Dr. S.N.
Tripathi.
This dying declaration
had
categorically stated upon a question being
asked by the Doctor that who exactly was
176 INDIAN LAW REPORTS ALLAHABAD SERIES
responsible for the firing and the injured
Gopi Krishna had stated that Gorelal was
the person who had fired on him and he had
also
stated
while
giving
the
dying
declaration that with Gorelal he had no
enmity. The Doctor in the dying declaration
itself had mentioned that the S.D.M. of
Bindki Court was called but he could not
appear and the patient had expired at
9:00am.
Dr.
S.N.
Tripathi
was not
produced by the prosecution but was
produced by the defence as D.W. - 4.

4. A recovery memo of two empty
cartridges of 12 bore which were found
from the place of incident was also
prepared and was exhibited as Exhibit -
ka23. The police had also taken the plain
soil and the soil with blood and the
recovery memo of it was marked as exhibit
ka-24. Upon investigation having got
completed, the police submitted its report
and the Court thereafter took cognizance of
the case and framed charges against six
persons, namely, Gorelal @ Shyam Narain
Singh, Sheoram Singh, Shatrughan Singh,
Rajendra Singh, Narendra Singh and
Ompal Singh for charges under Sections
148, 302 read with 149 IPC. The charges
were framed on 23.6.1984 and they were
read over to the accused persons and when
they did not plead guilty, the case was put
to trial.

5. A separate charge sheet was prepared
for the accused Shiv Singh on 23.6.1984 itself
and the charges in it were three in number.
Firstly, the charge was with regard to the death
of Gopi Krishna Gupta under Section 147 IPC
and under Section 302 IPC read with Section
149 IPC and the other set charge was with
regard to one more deceased Ram Gopal
whose dead body was recovered at a little
distance away and was under Section 302 read
with Section149 IPC.

6. The Trial Court after recording all the
evidence of the prosecution and after going
through the evidence on record, convicted
Gorelal, Sheoram Singh, Shatrughan Singh,
Rejendra Singh, Narendra Singh, Shiv Singh
and Ompal Singh under Sections 302 read
with 149 IPC. Vis-a-vis Shiv Singh, the charge
under Section 302 read with Section 149 along
with Section 147 was also held to have been
proved and he was also held guilty. All the
seven accused persons were sentenced with
rigorous imprisonment under Section 302 read
with 149 IPC. With regard to the conviction
under Section 148 IPC, the punishment of two
years with
rigorous imprisonment was
awarded. However with regard to murder of
Ram Gopal, all the accused persons were
acquitted.

7. Aggrieved by the judgement and order
of the Additional Sessions Judge, Fatehpur,
dated 24.3.1986, the instant appeal has been
filed.

8. Sri V.P. Srivastava, Senior
Advocate, assisted by Sri Jitendra Singh,
Sri Rajiv Nayan Singh and M/sNija
Srivatava was heard for the appellants,
namely, Sheoram Singh, Shiv Singh and
Ompal Singh. The appeal vis-a-vis Gorelal,
Shatrughan Singh, Rajendra Singh and
Narendra Singh had abated on account of
the fact that they had died during the
pendency of the appeal and no near
relatives of theirs had filed any application
for continuing the appeal.

9. Learned counsel for the appellants
took the Court through the statements of
the witnesses of fact i.e. the first informant
Pramod Kumar Gupta who had appeared in
the witness box as P.W. - 1 and Somdutt as
P.W. - 2. He had also drawn the attention
of the Court to the statement of P.W.-3 Dr.
S.K. Srivastava who had proved the post
9 All. Gorelal Alias Shyam Narain & Ors. Vs. State of U.P.
177
mortem report. P.W. - 4, Shiv Mohal
Singh, was the head constable of Police
Station - Bindki. He had proved the exhibit
ka-1 i.e. the chik which was prepared by
him. P.W. - 5, Madan Singh, was the
investigating officer whose statement was
also read out to the Court.

10. Learned counsel for the appellants
also had drawn the attention of the Court to
the deposition of Dr. S.N. Tripathi who was
produced by the defence as D.W.-4.

11. P.W. 1, in his statement has stated
that he had known Gorelal, Shatrughan
Singh, Shiv Ram Singh, Rajendra Singh,
Narendra Singh, Ompal Singh and Shiv
Singh from before and that he was also
recognizing them and he had stated that
they were all of the same party. He has also
stated that the accused had enmity with his
father. He has given various reasons on
account of which the accused persons were
inimical to the father of the first informant.
In his examination in chief, the first
informant had categorically stated that
when the incident had occurred, the first
shot which was fired by Gorelal- accused
had hit his father and he had fallen down in
the shop itself and, thereafter, the other
accused, excepting Shiv Singh, had with
their firearms aimed at his father and fired.
When there was a hue and cry raised by the
first informant then Somdutt, Smt. Ram
Kumari,
Om
Prakash
Goswami
and
Balbindra came on the spot. Upon reaching
of
the
various
persons
from
the
neighbourhood, the accused persons ran
away towards the Nehru Inter College. He
has stated that his father was still breathing
but he could not speak. Thereupon, he
stated that on his dictation, Ram Lakhan
Tiwari had transcribed the first information
report and he has also proved the first
information report which he had given to
the police. After the dictation was over, the
police had reached the spot and in that
Jeep, the first informant had taken the
injured father to the Bindki Hospital where
the Doctor had examined his injuries. He
has further stated that he had given the
representation to Mohan Singh Daroga in
the Jeep itself and the Daroga had given the
report to another policeman who was along
with him. He had, therefore, gone to the
police station after leaving his father at the
hospital.

12. Upon coming to know that his
father had passed away, he once again
rushed to the hospital. The panchayatnama
was done in the hospital itself. The first
informant has stated that later on when he
came to know that because of the firing
another person by the name of Ram Gopal
about 100 yards away had also died.

13. The prosecution had crossexamined the witnesses wherein the first
informant had stated that the Daroga had
come to the site in question but he had not
seen anything from the inside of the shop.
In paragraph no. 24 of his crossexamination, he has stated that he had, later
on, come to know on the basis of a rumour
in public that the father of the first
informant had died and this effect he had
got recorded his statement. He has
categorically stated that his uncle Durga
Prasad (who was a witness of the
panchayatnama) had not informed the first
informant about the dying declaration. He
has stated that he had not signed the first
information report. So far as the P.W. - 2 is
concerned, he has stated in his statementin-chief that the thrust of the bullets was to
the extent that after having hit the deceased
Gopi Krishna, the pellets had rebounded
and had also hit the Neem Tree. In his cross
examination, he had stated that he had
178 INDIAN LAW REPORTS ALLAHABAD SERIES
reached the spot because he had gone to
Bindki market to buy some clothes. He has
also stated in paragraph no. 6 of the crossexamination that he had been informed by
his wife that the police had called him and,
therefore, he had gone straight to the police
station where his statement under Section
161 Cr.P.C. was recorded.

14. In paragraph no. 10 of the crossexamination, he had stated that there were
other criminal cases pending against him.
Dr. S.K. Srivastava, the P.W.-3, in his
examination has proved the post mortem
report and he has stated that all the injuries
were of the same size i.e. 1/2-1/2 inch and
that they were three in number. P.W. - 4
has proven the chik. P.W. -5, the
Investigating Officer has stated that on
6.5.1983 at around 8:30am, he had got a
telephone call from Durga Prasad Gupta
that on the crossing of the bus stand firing
had taken place. Thereafter with all the
police force he had reached the spot, where
they found that Gopi Krishna was lying,
injured at his shop and, therefore, he had
taken the injured Gopi Krishna on his own
jeep. He has stated that in the hospital, the
son of the deceased Pramod Kumar Gupta
had
handed
over
to
him
the
first
information report and, thereafter, he had
directed the head moharrir to lodge the first
information report. He has stated that he
was there along with the injured at the
hospital and, thereafter, the injured had
died. He has stated in the examination in
chief that it was during this time that he
also received information that one more
dead body had been found in the
neighbourhood and, therefore, he went to
the place where the other dead body was
lying. He has stated that the dead body was
identified as that of one Ram Gopal. D.W. -
4, Dr. S.N. Tripathi, the Deputy Chief
Medical Officer, has stated on oath that on
6.5.1983, he was the Medical Officer at
Bindki and that the deceased Gopi Krishna
had been brought to him in an injured state
by the police and he had at 8:45am after he
had come to the hospital died at 9:00am.
The Doctor, D.W.- 4, had stated that he had
made all efforts to get the Magistrate before
recording the dying declaration of Gopi
Krishna but the Magistrate came after the
statement was recorded and after the
deceased had passed away. He has proved
the exhibit kha-6.

15. Learned counsel for the appellants
has while challenging the judgement and
order dated 24.3.1986 passed by the
Additional Sessions Judge made the
following submissions:

(i) Learned counsel for the
appellants has submitted that the dying
declaration is such a declaration which
cannot be lightly done away with. Relying
upon the famous maxim Nemo Moriturus
Praesmitur Mentiri submitted that the
prosecution, conscious of the fact that the
deceased had only mentioned that Gorelal
was present at the spot and had fired upon
the deceased and that the injured had not
mentioned that there was any enmity
between Gorelal and any of the accused,
had not relied upon that document i.e. the
dying declaration which was brought in by
the defence as Exhibit Kha-6. Learned
counsel for the appellants states that the
prosecution had not made any effort to
prove the dying declaration. This, learned
counsel for the appellants states, was done
because only Gorelal was the person who
was responsible for the death of the
deceased while the other co-accused
persons
namely
Shiv
Ram
Singh,
Shatrughan
Singh,
Rajendra
Singh,
Narendra Singh, Ompal Singh and Shiv
Singh were not even present at the spot.
9 All. Gorelal Alias Shyam Narain & Ors. Vs. State of U.P.
179
Learned counsel for the appellants relying
upon the statement of PW-1 has stated that
these persons were known to the PW-1,
Pramod Kumar Gupta, and they were also
known of having enmity with Pramod
Kumar Gupta and Gopi Krishna Gupta and,
therefore, the first informant PW-1 had
falsely implicated all of them. Learned
counsel for the appellants, therefore, states
that it was an absolute case of false
implication of all the other co-accused
persons
other
than
Gorelal.
Learned
counsel for the appellants has further
submitted that in the first information
report the first informant, Pramod Kumar
Gupta, had stated that Gorelal had fired
upon the deceased and thereafter the other
co-accused persons had also fired upon him
and that after he was injured, he was lying
at the shop where the incident had
occurred. This first information report,
learned counsel for the appellants states,
was got lodged on 06.05.1983 at 09:25 AM
whereas the PW-1 in his statement before
the Court has submitted that in fact when
the incident had occurred, the Police had
reached the spot and thereafter the injured
was put into the jeep of the Police and they
had taken the injured to the Bindki
Hospital. He has stated that he had also
accompanied his father to the hospital. He
has
thereafter
stated
that
the
first
information report was got transcribed by
Ram Lakhan Tiwari at the place of incident
and the first informant had handed over the
first information report to Madan Singh,
Daroga, who was also sitting in the jeep,
and thereafter the first informant alongwith
Madan Singh, Daroga had gone to the
Police Station to get the first information
report lodged. Learned counsel for the
appellants, therefore, states that the first
informant was in fact not there at the spot
at all and after he had got the information
about the fact that Gorelal was made an
accused by the deceased in his dying
declaration and was held responsible of
having had shot on him, he had come up
with the whole story. Learned counsel for
the appellants states that the other accused
persons were also implicated in the case as
their names were known to the first
informant and they were inimical to him
and also his father.

(ii) Learned counsel for the
appellants thereafter states that if the injury
report and the postmortem reports are seen,
it would become evident that all the injuries
with firearm injuries which were three in
number were 1⁄2 x 1⁄2 inches and he,
therefore, states that all the injuries were by
one firearm and the other co-accused
persons had not at all fired upon the
injured/deceased.

(iii) Learned counsel for the
appellants thereafter states that there were
contradictions in the statements of PW-1
with what he had stated in the first
information. He has stated that in the first
information report there was a statement of
the first informant that the father of the first
informant was lying in an injured state in
the shop when the incident had occurred
whereas in the statement-in-chief he had
stated that after the incident had occurred a
Police jeep had come and the first
informant alongwith the Police had headed
towards the hospital and while going to the
hospital the first information report was
handed over to Madan Singh, Daroga.
Definitely, therefore, he states that the story
which had been reported in the first
information report and was got lodged as a
definite first information, was a concocted
story. Learned counsel for the appellants
further states that if the statement of PW-1
is compared with the statement of PW-5
then it becomes evident that the case as was
being put forth by the prosecution was not
a reliable one. Learned counsel for the
180 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant states that the PW-5 had stated
that the son of the deceased, the first
informant, in the hospital got transcribed
the first information report which was
Exhibit Ka-1 and he had directed the Head
Muharrir to get the first information report
lodged. Learned counsel for the appellants,
therefore, states that there is contradiction
between the statements of the PW-5 and the
PW-1. Still further learned counsel for the
appellants states that when there was a
definite recording of statement done by
D.W.-4 and he had also proved the dying
declaration then it did not lie in the mouth
of PW-5 to say that he had taken the
injured/deceased to the hospital, where he
was throughout with the injured and after
the injured had died he had left the spot to
investigate into the other death which had
taken place i.e. the death of Ram Gopal.

(iv) Still further learned counsel
for the appellants states that PW-2,
Somdutta, whose name was not mentioned
in the first information report allegedly was
not there at the spot as had been stated by
the PW-1 in his statement-in-chief. In fact
the statement of PW-2 is absolutely
unreliable inasmuch as he himself states
that in fact his wife had told him to go to
the Police Station where he had given his
statement.
Learned
counsel
for
the
appellants, therefore, states that he was
only a chance witness who was brought in
by the prosecution to make the case of the
prosecution stronger.

(v)
Learned
counsel
for
the
appellants states that in the first information
even though the PW-1 had not stated
anything about any eye-witnesses but in the
statement before the Court he had stated that
apart from Somdutta, Smt. Ram Kumari, Om
Prakash Goswami and Balvindra Singh were
also there. He, however, states that none of
the persons mentioned in the statement of
PW-1 apart from Somdutta (whose evidence
is absolutely not believable) were not
produced before the Court.

(vi) Learned counsel for the
appellants, therefore, states that if the case as
a whole is looked into, it becomes evident
that there was a dying declaration which was
proved by the doctor who had recorded the
same and in the dying declaration there was
only one name mentioned i.e. of Gorelal and
the injured who was getting his dying
declaration recorded, had categorically stated
that he had no enmity with Gorelal. Learned
counsel for the appellants, therefore, states
that the other co-accused persons who had
been named by the first informant in the first
information report were not there on the spot
and only to implicate certain persons, who
were inimical to the first informant and the
deceased, their names were mentioned in the
first information report. Learned counsel for
the appellants, therefore, states that absolutely
there was no ingredient of section 149 of
I.P.C. present. The co-accused persons could
not be said to have had any common object
as is defined under Section 141 of I.P.C., to
be with Gorelal. Learned counsel for the
appellants relying upon the judgment of
Supreme Court in Vinubhai Ranchhodbhai
Patel vs. Rajivbhai Dudabhai Patel &
Others reported AIR 2018 SC 2472 states
that when a conviction is to be done under
Section 149 of I.P.C. the identification of
common object is essential and when the
common object is not identified, the accused
cannot be, in any manner, be convicted under
the substantive offence with the assistance of
Section 149 of I.P.C. To bolster his case,
learned counsel relied upon paragraphs 30, 31
and 32 of the judgement which are being
reproduced here as under:

30.The
common
object
of
assembly is normally to be gathered from
the circumstances of each case such as the
time and place of the gathering of the
assembly, the conduct of the gathering as
9 All. Gorelal Alias Shyam Narain & Ors. Vs. State of U.P.
181
distinguished from the conduct of the
individual members are indicative of the
common object of the gathering. Assessing
the common object of an assembly only on
the basis of the overt acts committed by
such individual members of the assembly,
in our opinion is impermissible. For
example, if more than five people gather
together and attack another person with
deadly weapons eventually resulting in the
death of the victim, it is wrong to conclude
that one or some of the members of such
assembly did not share the common object
with those who had inflicted the fatal
injuries (as proved by medical evidence);
merely on the ground that the injuries
inflicted by such members are relatively
less serious and non fatal.

31. For mulcting liability on the
members of an unlawful assembly under
Section 149, it is not necessary that every
member of the unlawful assembly should
commit the offence in prosecution of the
common object of the assembly. Mere
knowledge of the likelihood of commission
of such an offence by the members of the
assembly is sufficient. For example, if five
or more members carrying AK 47 rifles
collectively attack a victim and cause his
death by gunshot injuries, the fact that one
or two of the members of the assembly did
not in fact fire their weapons does not
mean that they did not have the knowledge
of the fact that the offence of murder is
likely to be committed.

32. The identification of the
common object essentially requires an
assessment of the state of mind of the
members of the unlawful assembly. Proof of
such
mental
condition
is
normally
established by inferential logic. If a large
number of people gather at a public place
at the dead of night armed with deadly
weapons like axes and fire arms and attack
another person or group of persons, any
member of the attacking group would have
to be a moron in intelligence if he did not
know
murder
would
be
a
likely
consequence.

16. Sri Amit Sinha, learned A.G.A.
assisted by Ms. Mayuri Mehrotra, however,
supported the judgment. Learned AGA
submitted that eye-witness account could
not be brushed aside lightly. He further
submitted
that
when
even
if dying
declaration had mentioned just one name it
mattered little as there were definite
evidence of the fact that the other accused
persons were involved in the crime.
Learned AGA still further submitted that if
there were some minor contradictions in
the statement of the prosecution witnesses
then also they ought to be ignored, looking
to the other evidence which was led in the
case.

17. Having heard the learned counsel
for the appellants Sri V.P. Srivastava,
Senior Advocate, assisted by Sri Jitendra
Singh, Sri Rajiv Nayan Singh and M/s Nija
Srivastava and the learned AGA Sri Amit
Sinha assisted by Ms. Mayuri Mehrotra
counsel for the State, this Court is of the
view that definitely the prosecution case
becomes weak when one looks into the
dying declaration. In the dying declaration,
the deceased had mentioned that Gorelal
alone was present at the place and he had
fired upon the injured deceased. However,
even in the dying declaration, the injured
deceased had mentioned that there was no
enmity
between
Gorelal
and
the
injured/deceased.
We
find
that
the
prosecution realizing fully well that its case
would become weak had not tried to prove
the dying declaration. It was also not
exhibited in the trial and in fact the defence
brought it as exhibit kha-6. We are also
convinced that the names of the other co-
182 INDIAN LAW REPORTS ALLAHABAD SERIES
accused which never found place in the
dying declaration were mentioned by the
P.W.-1, the first informant only to settle
scores with them. It appears that the P.W. -
1 was inimical to the other co-accused
persons and, therefore, while he was
lodging the first information report with
regard to the murder of his father, he had
mentioned those names as well. Also, we
are of the view that P.W. - 1 Pramod
Kumar Gupta was not sure as to how the
incident had occurred and he gives stories
which are at variance with each other. This
convinced the Court that the petitioner no.
1 was, in fact, not at the spot. Also, from
the post-mortem report, we find that
firearm injuries were only of one size and if
the other co-accused also fired then there
would have been injuries of different sizes
and, therefore, this also falsifies the case of
the prosecution. Needless to mention that
the contradictions were such that the
statements of the various prosecution
witnesses become highly unreliable. Also,
we find that Somdutt, the P.W. - 2, was not
at the spot as he, in fact, has mentioned in
his statement that the had gone to the police
station when his wife had sent him and the
P.W. - 1 in his statement in chief had
definitely stated that P.W. - 2 was not there
at the spot. Also, we find that P.W. - 1 had
tried to improve the case which he had
taken in the first information report at the
time of getting his statement recorded in
the Court. He had stated that Smt. Ram
Kumari,
Om
Prakash
Goswami
and
Balbindra were also there on the spot. The
Court finds that they were never produced
as prosecution witnesses in the Court. Also,
we find that when the other co-accused
were not there at the spot and when there
was no meeting of mind with regard to any
common object then the various co-accused
persons could not be implicated under
Section 149 IPC.

18. Under such circumstances, the
instant criminal appeal is allowed and the
judgement and order dated 24.3.1986
passed by the 3rd Additional Sessions
Judge, Fatehpur, in Session Trial No. 416
of 1983 is quashed and set aside vis-a-vis
appellant no. 2 Sheoram Singh, appellant
no.6 Shiv Singh and the appellant no. 7
Ompal Singh. The appellants No. 2, 6 and 7
are acquitted of the charges on the basis of
which the trial had proceeded. Since the
appellants no. 2, 6 and 7 are on bail, the
bail bonds and sureties are discharged.
With regard to the appellants no. 1, 3, 4 and
5, the appeal had already abated.
----------
(2024) 9 ILRA 182
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 1397 of 2020
With
Criminal Appeal No. 388 of 2020
With
Criminal Appeal No. 2001 of 2020

Babli & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Ayank Mishra, Shatrughan Yadav, Vinod
Singh

Counsel for the Respondent:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section 374(2)-Indian Penal
Code,1860-Sections 302/34, 498A, & 3/4
D.P. Act-the deceased was set ablaze by
her in-laws due to dowry demands-the