Kamlesh Dubey vs State Of U.P.
2012 Latest Caselaw 4803 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									      RESERVED												AFR 
 
CRIMINAL APPEAL NO. 2827 OF 2007 
 
KAMLESH DUBEY     .....................................             APPELLANT 
 
VERSUS 
 
 STATE OF U.P.        .......................................       RESPONDENT 
 

 
CONNECTED WITH 
 
CRIMINAL APPEAL NO. 2843 OF 2007 
 
ARUN KUMAR DUEBEY         .........................           APPELLANT 
 
VERSUS 
 
STATE OF U.P.       ...........................................      RESPONDENT 
 

 
CONNECTED WITH 
 
CRIMINAL APPEAL NO. 2845 OF 2007 
 
GUDDU YADAV @ BHARTENDU YADAV       ......        APPELLANT 
 
VERSUS 
 
STATE OF U.P.     ......................................            RESPONDENT 
 

 
CONNECTED WITH 
 
CRIMINAL APPEAL NO. 3040 OF 2007 
 
   RAKESH BHARTI............................................................ APPELLANT 
 
Versus 
 
    STATE OF U.P................................................................RESPONDENT 
 

 
CONNECTED WITH 
 
CRIMINAL APPEAL NO. 3396 OF 2007 
 
NEERAJ MISRA AND ANOTHER       ..............         APPELLANTS 
 
VERSUS 
 
STATE OF U.P.         ......................................         RESPONDENT
 

 
CONNECTED WITH
 
CRIMINAL REVISION NO.1387 OF 2007 
 
NAGESH KUKMAR MISRA         ..................                REVISIONIST 
 
VERSUS 
 
STATE OF U.P AND OTHERS           .............         RESPONDENTS.
 

 
Hon'ble Vinod Prasad, J.

Hon'ble Surendra Singh ,J.

(Delivered by Hon'ble Vinod Prasad J.)

In this cluster of appeals, half a dozen appellants namely Kamlesh Dubey (A-1), Arun Kumar Dubey (A-2) Guddu Yadav @ Bhartendu Yadav (A-3), Rakesh Bharti (A-4), Neeraj Misra (A-5) and Pravesh @ Bablu (A-6) have challenged legality and sustainability of their conviction U/S 148,307/149 and 302/149 I.P.C. and imposed sentence of 2 years R.I. for the first count, 10 years R.I. with fine of Rs. 10000/= and in default of payment of fine to undergo 6 months further R.I. on the second count and imprisonment for life and a fine of Rs. 10000/= and in default of payment of fine to serve 6 months additional R.I. On the last count, through impugned judgment and order dated 18.4.2007, passed by Additional Sessions Judge, Court No.1, district Sonbhadra, in two connected Sessions Trial Nos. 120 of 2000, State versus Neeraj Misra and others and S.T. No. 121 of 2000, State versus Nirbhaya Shankar Tiwari and others, (both the trials relating to crime number 43 of 98, P.S.Ghorawal, District Sonbhadra). By the same judgment learned trial judge has acquitted other six accused namely Nirbhaya Shankar Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey, and Rakesh Kumar Misra against which informant Nagesh Kumar Misra has preferred Criminal Revision No. 1387 of 2007, Nagesh Kumar Misra versus State of U.P. and others, which revision is also being disposed off by this judgment.

Complete narration of prosecution story was elaborately divulged by Nagesh Kumar Misra, (injured/ informant/PW1), in the trial, and from a perusal of his testimonies it emerges that the parties involved in the incident were closely related and were first cousins. From the stated pedigree it is discernible that Ram Nath Misra, Sankatha Prasad Misra, and Shitala Prasad Misra, all r/o village Kamharia, P.S.Ghorawal, district Sonbhadra, were uterine sibling brothers. Sankatha Prasad Misra had only a daughter and hence he partitioned his estate into two parts-one was given to his daughter, whereas rest was bequeathed to Shitala Prasad Misra, accumulating his estate to 134 bighas. Shitala Prasad Misra, aforesaid, had four sons Krishna Nand Misra, Deva Nand Misra, Atma Nand Misra, and Badri Narayan Misra (injured/ father of the informant).Since the eldest son Krishna Nand Misra had separated very early, therefore noting his successors is not very relevant for us. Deva Nand Misra had three sons Jagdish Misra, Surendra Misra and Santosh Misra, whereas Atma Nand Misra had two sons Neeraj Misra (A-5) and Pankaj Misra, from his wife Pratima Devi. Badri Narayan Misra (injured) has two sons informant/injured Nagesh Kumar Misra, PW1,and Devesh Kumar Misra (deceased). Tribhuvan is the son of Sadhu (husband of sister-in-laws) of Atma Nand Misra. It seems that by passage of time and rapacity to accumulate more wealth infused hostile feelings amongst the family members and corroded family cohesiveness as a result of which small bickering amongst them started, which are registered here under.

Five or six months prior to the present murder/incident, on the question of installing a telephone connection, both the sides developed malice and hostile intent against each. Two or three months prior to the present incident Neeraj Misra (A-5) had stopped informant's tractor from passing through his granary(khaliyan) and in retaliation thereto informant and his family members including his father Badri Narain Misra(injured) had blocked passage of appellants jeep, through their agriculture field, but appellants pushed away Badri Narayan's (injured) motor cycle and had plied away their jeep. In that incident both the sides had flexed their muscles as well. All these skirmishes further prolixed hostility between rival collaterals.

According to further prosecution version, in 134 bighas of land, which had fallen in the share of Shitala Prasad Misra, his eldest son Krishna Nand had no interest as he had already separated much earlier. To save that property from being carved out in ceiling proceedings, two sham sale deeds were executed of a total area of 35 bighas in favour of Smt. Partima Devi, (w/o Atmanand Misra) and Tribhuvan, (son of his Sadhu), without having any intention to alienate that portion. Thereafter, father Shitala Prasad Misra, orally made a family settlement of his entire estate of 134 Bighas amongst his three sons Deva Nand Misra, Atma Nand Misra, and Badri Narayan Misra, in 1972, but the same was disliked by Atma Nand Misra, who desired that, after taking out 35 Bighas of land sold to his wife and Tribhuvan, only rest of the estate be partitioned amongst the three brothers. Badri Narayan Misra, however adhered to the partition made by the father. Through this oral partition 1/3rd shares were carved out for each of the three brothers. Deva Nand Misra, thereafter separated from rest of his two brothers and started doing his own farming, whereas Atma Nand Misra and Badri Narayan Misra, continued to hold their shares jointly. This oral family settlement of 1/3 share to each of the three sons was given a legal shape by Shitala Prasad Misra by executing a WILL on 8.6.98 bequeathing 1/3rd share of his entire estate of 134 bighas, including 35 bighas sold to Pratima Devi and Tribhuvan, to each one of his grandsons, Jagdish Misra, Surendra Misra, and Santosh Misra (all sons of Deva Nand Misra), NageshKumar Misra(informant) and Devesh Kumar Misra (deceased), both sons of Badri Narayan Misra (injured) and Neeraj Misra (appellant No.5) and Pankaj Misra,(both sons of Atma Nand Misra). Since Atma Nand Misra was opposed to the family settlement of 1972, since the very beginning, hence executed Will burgeoned his and his sons revengeful hostile feelings against the injured uncle and his cousin brothers. Five or six days before the present incident (A-5) accompanied with Nirbhaya Tiwari and Trinayan Dubey (both acquitted accused) had come to the informant's house to talk about the partition but they were sent back to talk about it with the father. While returning from there all the three had hurled threats to the informant and his family.

Because of motives aforesaid, it is alleged, that on 11.6.98 at 6 a.m., two days after execution of the Will by Shitala Prasad Misra, all the appellants, Kamlesh Dubey (A-1), Arun Kumar Dubey (A-2) Guddu Yadav @ Bhartendu Yadav (A-3), Rakesh Bharti (A-4), Neeraj Misra (A-5) and Pravesh @ Bablu (A-6) accompanied with six others namely Nirbhaya Shankar Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey, and Rakesh Kumar Misra, all armed with fire arms, came to informant's house on a Hero Honda motor cycle U.P.63/1578, Jeep No. MMV-4403, one bullet motor cycle and one scooter. Informant/PW1, injured father Badri Narayan Misra, grand father Shitala Prasad Misra and younger brother Devesh Kumar Misra (deceased), all were present at their door. Neeraj Misra (A-5), started conversing with injured Badri Narayan Misra regarding partition and in midst of the said dialogue threw a challenge to finish the dispute immediately and instigating his associates, shot at Devesh Kumar Misra (deceased) on his right side head from his country made pistol. Sustaining injury, when Devesh Kumar Misra was about to fell down, informant rushed to hold him, but (A-5) shot at the informant as well on the right side of his head. Arun Kumar Dubey (A-2), meanwhile shot at Badri Narayan Misra (injured) on his right shoulder causing him gunshot injury. Father, anyhow, staggered inside the house. Informant also endeavoured to rush inside his house, when Rakesh Bharti (A-4) gave him two hockey stick blows at his right back, but the second blow cracked the stick. All the assailants thereafter resorted to indiscriminate firing causing injuries on informant's hand. Informant anyhow entered in his house and both, he and his father, bolted themselves from inside. Assailants continued to fire for some time but thereafter retreated from the occurrence scene but not without puncturing informant's motor cycle U.P.64 A/0072, by firing at it's tyre. This shooting spree was witnessed by Ramesh, Vimlesh, Raj Kumar and many other co villagers.

After accused had left incident scene, informant,PW1,scribed occurrence FIR, Ext. ka-1, inside his house and then dispatched his injured father and brother to the hospital with village people on a tractor driven by Raj Mani driver and he himself came to the police station Ghorawal, on a motor cycle, accompanied by Raj Kumar Dubey, where he lodged his FIR the same day at 7.15 a.m., which was registered by HCP Sabhajit Pandey as crime number 43 of 98, U/S 147,148,149,307,504,506,427 I.P.C., by preparing chik FIR, Ext. Ka-12 and crime registration GD, Ext. Ka-13.These Exhibits have been proved by S.I. Satish Chandra Shukla, PW 6 in the trial.

S.I. Kamta Singh, PW 8, commenced investigation into the crime, copied FIR and GD entry, recorded informant's statement u/s 161 of the Code at 12.15 p.m. and at his pointing out conducted spot inspection and prepared spot map Ext. Ka- 15. Blood stained cotton green carpet (dari), which was spread over the bench (Chauki), on which injured/ deceased was made to lie down after he was shot at, blood soaked apparels of the informant Nagesh Kumar Misra, PW1 (one cotton white paijama, one white sandow baniyain, one black and green striped half shirt) all were seized and sealed by the I.O. and recovery memo, Ext. Ka-2 in that respect was sketched. Blood stained and plain soil were collected vide recovery memo Ext. Ka-3. Six empty cartridges of 315 bore, one missed cartridge, two empties of 32 bore, two damaged cartridges, two wads of paper no.1, one metal cap of 12 bore, One bullet of 32 bore, and pellets of 315 bore and pieces of broken hockey sticks material Ext. 1, all were seized and sealed vide recovery memo Ext. Ka- 4. Three paper packaging material cartons, in which these articles were kept, are material Ext. 2,3&4. All these articles were deposited in the police cloak room. It is mentioned here that when, in the court, these cartons were opened during trial, no empty cartridge was found in them. One motor cycle U.P. 63/ 1578, belonging to the accused, was also seized by the I.O. vide Ext. Ka-16. Following day, I.O. recorded statement of Murahu and copied injury report of the informant.

Further investigation into the crime was done by S.O. Satish Chandra Shukla,PW6 of P.S. Ghorawal to whom Ratnesh Kumar brother of Devesh Kumar (injured/deceased), gave information regarding expiring of Devesh Kumar @ Bangali, in Heritage Hospital, Varanasi on 15.6.98, which was noted in the case diary and offence 302 I.P.C.was added same day at 6.35 p.m. vide GD no.8,and RT set message was flashed. PW6 thereafter copied information regarding death of the deceased furnished by P.S.Lanka, Varanasi in the GD on 16.6.98. Next day Deva Nand Misra was interrogated and his statement was penned down. On 19 th injury reports of the deceased and injured father Badri Narain Misra were copied in CD by PW6 who thereafter conducted attachment proceedings at the house of accused Neeraj Misra (A-5), under the orders of the court and recorded it in the case diary and there after recorded statement of the informant and witness Upendra Misra. Attachment proceedings against (A-6) was conducted on 21.6.98 and that day itself statement of witness Raj Kumar Dubey, was inked. On 22.6.98, after coming to know about arrest of accused Neeraj Misra (A-5),I.O. interrogated him at the police station.161 Cr.P.C. statements of Smt. Parvati Devi(mother of the informant/deceased) and Smt. Nisha Devi (sister-in-law (bhabhi) of the deceased/ wife of informant) were recorded on 23.6.98. Three days after, on 26.6.1998, P.W.6 copied information regarding surrender of accused Rakesh Bharti (A-4) and Pravesh @ Babloo (A-6) and some extracts of post-mortem report. On 3.7.1998, statement of witnesses Lallan Ojha, Ramesh Mishra and Vimlesh Mishra were recorded. On 14.7.1998, I.O. penned down the statements of witness Upendra Mishra, Jagdish Mishra, and that of(A-4) and(A-6) and copied deceased radiological report. Thereafter injured Badri Narayan Mishra (father of the deceased) was interrogated and his statement was recorded and on 2.8.1998 statement of photographer Ram Dhani was noted. On 26th and 28th.8.1998, PW6 copied inquest memo, post-mortem report, medical reports of injured Badri Narayan Mishra and X-ray plate, and CT Scan report of the deceased and made them part of the case diary. On 9.9.1998, from District Hospital Robertsganj, treatment card of the deceased and the injured and a discharge certificate, from Heritage hospital Varanasi were copied. On 5.9.1998 statements of acquitted accused Rajnish @ Turra, Ayodhya Pathak, Pramod Pandey were recorded. Subsequent thereto inquest witnesses were interrogated and I.O. copied various recovery memos and sending of blood stained articles to the Forensic Science Labrotary, Lucknow. On 13.9.1998 witnesses Sarvesh Kumar Mishra, Om Prakash Pandey, Nityanand Dwivedi, Arvind Kumar Dubey and inquest witnesses were interrogated and their statements were recorded and that day itself concluding investigation I.O./PW6 charge-sheeted (A-1), (A-2), (A-4),(A-5), (A-6), alongwith Pramod Pandey, Ayodhya Pathak and Rajnish @ Turra vide Exhibit Ka-11.

Deceased had expired in Heritage hospital Varanasi on 14.6.1998 at 9.20 a.m. and therefore, after receiving information regarding his death offence u/s302I.P.C. was added, vide CD No.8 dated 15.6.1998 at 6.35 a.m. On 28.9.1998, I.O. noted sending of recovered articles for forensic science examination. On 10.11.1998 accused Nirbhaya Shanker Tiwari was interrogated and on 16.12.1998 Gulab Chandra Yadav and Rajesh Yadav were interrogated and their statements were recorded. On 10.2.1999 statement of accused Rakesh Mishra was recorded. Thereafter further investigation was conducted by IIIrd I.O. S.I. Raja Ram Dwivedi P.W.9, who penned down statements of accused Trinayan Dubey (A-3) and thereafter charge-sheeted rest of the accused vide Exhibit Ka-17.

Injured Devesh Kumar Mishra and Badri Narayan Mishra were medically examined on 11.6.1998 in District Hospital, Sonbhadra by Dr. J.K. Maurya, P.W.5 at 7.35 and 7.45 a.m. respectively vide their medical examination reports Exhibit Ka-7, Exhibit Ka-9. Reference slips referring them to Heritage Hospital Varanasi are Exhibit Ka-8 and Ka-10. According to this Doctor, injured Devesh Kumar was 32 years of age and was brought to him by Bhupendra Nath Mishra son of Jwala Prasad Mishra, after he was already given first aid at P.H.C., Ghorawal. Following injuries were noted by the doctor in his medical examination report Exhibit Ka-7:-

'Gunshot injury right side of head 7 cm above right ear of size, 1 cm x 1 cm"

Devesh Kumar Misra was unconscious and was gasping. His heart beat was 110 per minute and aforementioned injury was sustained by him by gun or country-made pistol on 11.6.1998 at 6 AM. He was referred to Heritage Hospital Varanasi, vide Ext. Ka-8.

Badri Narayan Mishra injured was found to be 48 years of age and following injury was detected on his person by the doctor:-

' an entrance wound of gunshot right arm 5 cm below the right shoulder joint.'

The aforesaid injury was caused to him by some gun shot and he was conscious and his radius pulse was palpable. He could have sustained injury at or about the time and the date of the incident. Reference slip, referring him to Heritage Hospital, Varanasi is Ext. Ka-10.

Dr. Kranti Kumar, M.O., District Hospital, Sonbhadra had medically examined informant injured Nagesh Kumar Mishra on 11.6.1998 at 9.15 A.M., who was brought before him by CP 300 Deep Narayan P.S. Ghorawal, District Sonbhadra. Medical examination report of this injured is Ext. Ka-6, according to which injured was 25 years of age and had following injuries on his person:-

" 1. Lacerated wound 3.5cm x 1.5cm x bone deep on left side of scalp 11.0 cm above top of left ear pinna burning, seinging of hairs, charing present. Bleeding present. Adv. X.

2. Abraded contusion 2.5cm x 1.0 cm on outer surface of right elbow joint oozing of blood present.

3. Multiple tiny pin point abrasions in area of 26.0 cm x 8.0 cm on front of right forearm extending from elbow joint to wrist joint black in colour.

4. Multiple pin point abrasions in area of 25.0 cm x 10.0 cm on the back of left forearm extending from left elbow joint to left wrist joint.

5. Contusion 16.0 cm x 4.0 cm on right side of back. 11 cm below before interior angle of right scapula. Radish in colour.

6. Contusion 10.0 cm x 3.0 cm on right side of back just above right iliac crest colour red.

Nature- All injuries are simple except injury no. 1 and advised X-ray. Injury nos. 2 , 5 and 6 are caused by hard and blunt object and injury nos. 1, 3, 4 are caused by firearm. Duration fresh."

Doctor had found all other injuries, except injury no.1, simple and for injury no.1, he had advised X-ray. Injuries 3, 5 and 6 were caused by hard blunt object whereas injuries 1, 3 and 4 were caused by firearm. Duration of all these injuries were fresh.

Dr. Ajay Sharma, M.O.,Heritage Hospital,Varanasi had treated Badri Narayan Mishra (injured) from 11.6.1998 to 31.7.1998. Aforesaid patient was referred from District Hospital, Sonbhadra. On examination of the injury, doctor had found that upper end of humorous bone of right shoulder had compound fractures. The said injured was operated upon by this doctor. On 31.7.1998 he was discharged from the hospital after being advised physiotherapy and his discharge certificate is Ext. Ka-5.

After death of the injured Devesh Kumar Misra on 14.6.1998, an information was received to P.S. Lanka, district Varanasi, from the hospital and resultantly inquest proceedings on his cadaver was conducted by S.I. Rajesh Kumar, P.W. 10, of the said P.S. in the Heritage Hospital, in presence of family relatives of the deceased. PW10, had prepared inquest memo Ext. Ka-18 and other relevant documents of chalan lash, photo lash etc. which are Exts. Ka-19, Ka-20, Ka-21 and Ka-22.

Autopsy on the cadaver of the deceased was performed by Dr. Ashok Kumar Sinha P.W. 7, Senior Orthopedic Surgeon, SSPG Hospital, Varanasi on 14.6.1998 at 2.30 P.M. Corpse of the deceased was brought to him by CP 2447 Ram Sajiwan Singh of P.S. Lanka, District Varanasi. Deceased was 23 years of age and he had expired in Heritage Hospital, Varanasi on 14.6.1998 at 9.20 A.M. He had an average built body. His mouth was closed and eyes were half open. Rigor mortis were present on his both the limbs. His brain was lacerated. A metallic piece was embedded in his brain cavity, which was extracted and sent to SSP, Varanasi. His pleura, both the lungs, pericardium, peritoneum, spleen, pancreas, kidney all were congested. Cause of his death was sustained injury on the head and brain and ensued coma. Except injury No.1, rest of the injuries, described as stitched wounds, were operational incisions and not actual inflicted injuries. Post mortem examination report of the deceased is Ext. Ka-14. Doctor had noted following injuries on the dead body:-

" 1. Stitched wound right side of skull 26cm from right side of frontal bone to occipital region of skull.

2. Stitched wound 5cm on the right side head 8cm above ear.

3. Stitched wound 1/2cm on the right side head 2-1/2 cm below injury no. 2 11cm x 7cm right side of frontal parietal and temporal bone missing with brains lacerated, membranes stitched."

Forensic Science Laboratory reports, as Exts. Ka-23 and Ka-24, indicate that the lead piece found from the body of the deceased could be fired from EC-1 to EC-6 (.315 bore). Nine small pellets recovered from the body of the injured Badri Narayan Mishra resembled standard cartridge of 12 bore gun of a smooth bore. They could be part of cartridge EC-7 and EC-8. Both the injured had sustained the injuries from a distance beyond blackening range.

Charge sheeting of the accused resulted in registration of case no. 1706 of 1998, State Vs. Neeraj Mishra in the committal court of C.J.M., Sonbhadra. Other case was also registered on the basis of second charge sheet submitted against residue of the accused. Since both the cases were triable by court of session and hence both of it were committed to the court of session by C.J.M. where they were registered separately as S.T. No. 120 of 2000, State Vs. Neeraj Mishra and S.T. No. 121 of 2000, State Vs. Nirbhaya Shanker Tiwari and others.

1st Additional Session's Judge, Sonbhadra, to whom both the trials were allotted, charged all the accused with offences under sections 147, 148, 307/149, 302/149, 427, 504, 506 I.P.C. on 7.1.2002. All the accused persons abjured those charges, after being read out and explained to them, and claimed to be tried and consequently to examine their guilt, learned trial Judge resorted to session trial procedure.

In the trial prosecution tendered ten witnesses to substantiate its charge out of whom the sole witness of fact is informant Nagesh Kumar Misra, P.W. 1. Another witness Deva Nand Misra P.W.2 is primarily a witness of motive. Besides them, examined formal witnesses included various doctors, Dr. Ajay Sharma P.W. 3, Dr. Kranti Kumar P.W. 4, Dr. J.K. Maurya P.W. 5 and Dr. Ashok Kumar Sinha P.W.7. The three I.Os. were examined as S.I. Kamta Singh P.W. 8 (first I.O.), S.I. Satish Chand Shukla P.W. 6 (second I.O.) and S.I. R.R. Dwivedi P.W.9 (third I.O.). S.I. Rajesh Kumar P.W. 10 had conducted inquest on the dead body of the deceased. All these witnesses have testified during the trial those facts which they had recorded in various documentary evidences marked as exhibits which have already been narrated herein above.

Out of the two witnesses, informant injured P.W. 1 has narrated the same story, which he had sketched in his registered FIR Ext. Ka-1 with other supplementary details. As has already been mentioned, Deva Nand Misra P.W.2 has divulged and deposed the family feud and the motive for orchestrating the crime. His testimony indicates that he himself was not an eye witness of the incident and was informed about it subsequently. He had directly reached the hospital to inquire about the well being of the three injured.

In their statements under section 313 Cr.P.C., accused pleaded a common defence of denial and false implication due to enmity. Appellant Bhartendu Yadav (A-3) further stated that he had no alias name as Guddu Yadav nor he had ever studied in K.V. Degree College.

Learned Trial Judge after examining entire evidences and considering arguments of both the sides concluded that prosecution had failed to substantiate its charge against six of the accused Nirbhaya Shanker Tiwari, Ayodhya Prasad Pathak, Rajnish @ Turra, Pramod Pandey, Trinayan Dubey and Rakesh Kumar Mishra and resultantly, acquitted all of them vide impugned judgment and order. It however held prosecution case substantiated and credible as against the present appellants (A-1) to (A-6) and therefore, convicted them for the charges under sections 148, 307/149 and 302/149 I.P.C. For other offences under sections 427, 504, 506 IPC, learned trial Judge disbelieved prosecution story and therefore has acquitted the appellants of those charges. Conviction and sentence referred and mentioned herein above are under challenge, by the appellants, in these cluster of appeals by the convicted accused whereas informant has challenged acquittal of six accused in Criminal Revision.

In the aforesaid background, we have heard Sri. V.P. Srivastava, learned senior counsel assisted by Sri A.S. Pandey, advocate, Sri. G.S. Chaturvedi, learned senior counsel assisted by Sri Ajatshatru Pandey, Sri H.N. Singh, Sri Sriprakash Trivedi, counsels for the appellants and Sri Satish Trivedi and Sri Sangam Lal Kesherwani for the respondents. For seeking some clarifications appeal was further heard and judgment was reserved, which is now being delivered.

Unleashing the castigation of the impugned judgment appellants' counsel canvassed following submissions:-

That the entire prosecution story rests upon solitary testimony of the informant/injured P.W. 1, who is an unreliable witness. Besides being inimical, partisan and related he was always eager to implicate the appellants in a concocted story and therefore, his testimony is un-creditworthy. No other witnesses whether house inmates or of outside came forward to bolster up the prosecution story and lend credence to it, which negative circumstance makes prosecution story doubtful. Neither mother of the deceased nor his bhabhi, though cited as witness in the charge sheet, appeared in the witness box to testify against the murderers of their own son/dewar. Initially in the FIR only six persons were named as assailants but their number was swelled to twelve to develop and aggrandized prosecution case, which attempt was thwarted by the learned trial Judge, who acquitted added six accused and this corrodes reliability of P.W.1 and of his version. Incisively snipping appellants conviction it was further harangued that use of hockey stick on the informant injured and breaking of it was not mentioned by P.W. 1 in his FIR and subsequently only to make prosecution allegation consistent with medical evidence that P.W.1 escalated and fabricated a false story of twice assault being made on him by hockey stick and breaking of it and this nascent addition in actual incident diminishes trust worthiness of P.W. 1, and erodes his credibility and makes him an unreliable witness. His mere presence at the spot is not sufficient to bracket him as a truthful witness. Feeble and after thought explanation offered by the prosecution that no independent witness was ready to support the prosecution story is a fib and cannot be believed. Putting defence plea forward it was urged that the incident had occurred in the dead hour of night with no eye witness account and subsequently all the appellants have been implicated to satiate vengeance. Prosecution had tried to suppress important facts including disclosure that initially at P.H.C. Ghorawal injured were given first aid and their injuries were attended to and thereafter they were brought to district Hospital Robertsganj. FIR is a concocted piece of corroborative evidence and the conduct of P.W.1 is wholly unnatural, which does not inspire any confidence. Investigation conducted by P.W.6 and P.W.8 discloses discrepancy galore and on such an investigation, appellants should not be held guilty submitted appellants' counsel. Deva Nand Misra P.W. 2, who himself is an advocate, except motive had not stated anything regarding actual incident and therefore his testimony does not countenance prosecution version. Only on an omnibus general role of shooting all the appellants cannot be convicted submitted appellant's counsel. Primarily on these submissions, it was contended that prosecution has failed to substantiate its charge against the appellants who all deserves to be acquitted. For appellant Arun Kumar Dwivedi, Sri P.N. Mishra, learned senior counsel had raised additional argument that his acquaintance with the informant and other witnesses was extremely doubtful and he was neither present at the spot nor had participated in the incident. For another accused appellant Pravesh @ Babloo, Sri G.S. Chaturvedi, learned senior counsel had contended that he had no motive to participate in the incident. He has suggested the time of incident to be of wee hours at 6 a.m. and not 7.15 a.m., as alleged by the prosecution. From the side of the appellants written submissions has also been filed, which have been taken on record.

Submitting to the contrary and snipping appellants contentions, it was argued by respondent's counsel that it is a day light incident, which had occurred in the month of June at 6 a.m. and the FIR was lodged with promptness at 7.15 a.m. just after an hour and fifteen minutes at the P.S. at a distance of 8 Kms leaving no room for any concoction or embellishment. Informant Nagesh Kumar Mishra himself is an injured and has sustained as many as six injuries out of which 1, 3 and 4 were gunshots and no. 2, 5 and 6 were caused by some hard blunt object, which were on the scalp, right forearm extending from elbow joint to wrist joint and left forearm extending from left elbow joint to left wrist joint. Thus, presence of first informant during the incident cannot be doubted. F.I.R. contains gist of main details about the incident and it is quite unnecessary to register therein each and every insignificant and minute details. Short span of time spent by the informant was a severe constraint for him to mention each and every fact submitted respondent's counsel. In an incident where firing had been resorted to by a dozen of accused, non-mention of an assault by a hockey stick might not have attracted informant's attention being an insignificant fact, contended learned AGA. Hero Honda Motorcycle of one of the accused Neeraj Mishra (A-5) was recovered from the spot by the I.O., which cements his participation in the crime. Since Badri Narayan Mishra (injured) had expired in 2002 and therefore, could not be examined during the trial and consequently defence cannot make any capital out of it. Both the sides who were at loggers heads and belonged to the same family and therefore, it is too much to expect that the independent villagers will come forward to support either side to generate enemies contended respondent's counsel. Injury reports with doctors depositions unambiguously establishes prosecution case. Defence claim of happening of the incident during night is without any attending circumstance and cross examining of witnesses on that score and hence cannot discredit eye witness account. No circumstance was put to P.W.1 in that respect and therefore, defence argument is hypothetical and conjectural. From the doctors as well as from the Investigating Officers, defence has not been able to fathom out any infirmity in the prosecution case to make it incredible. Learned AGA made another and further argument that acquittal of co-accused, although was not warranted on the facts and circumstances of the case, in no manner discredits prosecution version in respect of the appellants. Eikely it was further contended that since both the sides were collateral and consequently it is gibberish to cogitate that real assailants will be spared and innocent cousins will be implicated to take a revenge. Before the present incident, there had been no exchange of firearm weapons, though there were petty brawls, and hence, prosecution lacked compelling reasons to feign a story against the appellants. Time gap between happening of the incident and registration of FIR is so thin that it is difficult to perceive that FIR allegations are untruthful and un-creditworthy. Since presence of the first informant is not doubtful nor has been challenged and therefore, appeal of the appellants lacks merit and all of it deserves to be dismissed with affirmation of appellants conviction and sentence, concluding urged respondents counsel.

We have critically examined opposite submissions and have scanned them in light of evidences tendered during trial, to separate truth from falsehood.

Embarking upon an inquiry we find some striking features having bearing on merits of the appeal and, ab-initio, it emerges that some of the facts in issues have not been challenged at all by the accused. To register those aspects first of all we note that relationships between both the sides have not been disputed at all by the defence and so is the fact that because of property greed they were at logger heads. To save the property from being vested in the State during ceiling proceedings, that father Shitala Prasad Misra had executed two sham sale deeds in favour of Smt. Pratima Devi(mother of (A-5) and Tribhuvan (son of sister of Pratima Devi/ Sadhu of Atma Nand Misra). As wealth is one of the three universally accepted vices, lust for property destroyed saner senses of Atma Nand Misra and his family members, which fact is evident from their resisting equitable partition made by the father, as they wanted the sale deed properties to be excluded from partition settlement amongst the three brothers, whereas father of the informant was opposed to the said idea. Hostile feeling kept on rising because of small incidents of stalling a phone connection, stoppage of tractor and blocking of way by either sides. This situation was spurted into killing animosity when informant and deceased etc. refused to have a dialogue with (A-5) regarding property settlement remonstrating (A-5) to talk to their father. Malice intent reached it's nadir, with execution of a Will by the grand-father bequeathing 1/3 share to each of his grandsons including 35 bighas of the sold properties. Such family feud anointed by property greed provided compelling and sufficient motives for the appellants with specific roles to execute the murder and it was with such an objective that (A-5) had approached injured father, accompanied by his associates, all armed with lethal weapons on the date of the incident. It has been categorically stated by the informant/PW1 that in 1972, an oral partition was agreed upon in between three sons of Shitala Prasad Mishra excluding Krishna Nand. Since 1972, Atma Nand had objected to the said oral agreement. Since it was not in black and white, he had no grouse about it for taking a coercive action. On 8.6.1998, Shitala Prasad Mishra documented the said partition by executing a Will giving one third shares to each one of his grandsons from his three sons Deva Nand, Aatma Nand and Badri Narayan Mishra. Thus the oral family partition, which was agreed upon in 1972, was authenticated and documented just three days before the incident. This was an immediate cause for executing the murder. It is categorical testimony of the informant/injured that Neeraj Mishra along with his other socio criminisis had approached the informant a week earlier to register his protest regarding such a partition but at that point of time, he was sent back by the informant and the other family members by replying that he may have a conversation regarding partition of property with their father Badri Narayan Mishra. All these facts, though evasively denied, by (A-5) in his statement u/s 313 Cr.P.C. but, therein, he had not furnished any other explanation negating these facts in answers to question nos. 2 and 3 put to him. Such expected evasive and general denial does not erase convincing narration by the informant regarding above facts. From vetting of evidences we have failed to fathom out any evidence supporting accused claim and hence conclude that motive for orchestrating the incident lied very much with the appellants.

Next aspects is that presence of Nagesh Kumar Mishra (injured/informant), Devesh Kumar Mishra (deceased) and Badri Narayan Mishra (injured father) during the incident and their sustaining injuries by fire arms have also not been questioned seriously at all. Their presence is established by an unassailable oral testimony of the informant and inflicting of injuries on their persons. Corroborative medical evidences further cements their presence and involvement. All the three injured were medically examined within a very short span of time, in less than two hours, after the incident, which completely rules out any possibility of their injuries being manufactured or fabricated. Deceased was medically examined at 7.35 a.m. while Badri Narayan Mishra was examined at 7.45 a.m. and before that they were already made available first aid at PHC Ghorawal. Thus medical examination reports coupled with depositions of various doctors unerringly proves that all the injured were caused firearm wounds recently. Appellants counsel criticized prosecution story be canvassing that no medical report from PHC Ghorawal was tendered during the trial by the prosecution which conveniently suppressed it, but we are not impressed by the said castigation for ostensible reasons that presence of all the injured has not been challenged and at the same time injured had no viable reasons to spare real assailants and feign a terradidle against the appellants, who were their first cousins. It will be gibberish to accept such a facetious argument as suggested by the appellants. Furthermore, once presence of injured persons are not doubtful, non-filing of their injury reports from one of the medical centers is of no consequence as it does not affect the main substratum of prosecution allegations. Informant is also an injured and his presence at the spot cannot be doubted. After registration of the crime at P.S. Ghorawal, he was brought to District Hospital, Sonbhadra and was examined the same day at 9.15 A.M. Constable had brought him to Dr. Kranti Kumar P.W.4.Nothing damaging is culled out from this doctor's depositions, on the basis of which it can even remotely be thought of that informant/injured was absent during the incident. It has not been suggested by the defence, to this doctor, that the informant injured had not sustained any firearm and blunt object injuries. So is the case with other doctor J.K. Maurya, P.W.5, who had examined the deceased and the dead injured Badri Narayan Mishra. Regarding first aid provided to the injured/deceased and father Badri Narayan Misra, at PHC, this witness, P.W.5, had deposed that both of them were referred from PHC and the ointment /medicine were employed on their injuries. No further cross examination of this witness was done by the defence on this score. Thus, what is unerringly established is that all the three injured had sustained firearm injuries and resultantly, prosecution story is corroborated by medical expert testimonies.

Coming to the incident in question, it is the case of the prosecution that all the accused armed with firearms came to the informant's house and appellant (A-5) initially started conversing with Badri Narayan Mishra (injured father) and then became so much infuriated that he, uttering the words that he is going finished the dispute then and there, shot Devesh Mishra (injured/deceased) on his right side head from his country made pistol. When informant/PW1, tried to save his injured brother, when he was about to fell down, he too was shot at by Neeraj Mishra (A-5) on his right side head. Appellant Arun Dubey (A-2) fired at Badri Narayan Mishra (injured/father), who any how toddled and entered inside his house, but not before being inflicted with gunshot injury. An indiscriminate firing then was resorted to causing injuries to the informant in his hand. When informant tried to enter his house to save his life he was assaulted twice with hockey sticks by (A-4) and in the second blow stick cracked. This is how informant had sustained blunt object injuries. After committing the incident accused had left the scene after arrival of witnesses. This narration about actual incident finds corroboration from FIR as well as injury reports. Appellants counsels castigated prosecution story on the ground that in the FIR there is no mention of any hockey stick assault and later on it was embellished to make ocular testimonies consistent with medical evidences. According to incisively harangued submissions, had informant was inflicted with hockey stick injury, he could not have missed recording of it in his FIR. The criticism seems to be appealing in a flush, but on a closer scrutiny is devoid of essence. FIR was scribed without any delay when injured brother and the father were still to be dispatched to the hospital for management of their injuries. Informant had to arrange for a tractor also meanwhile. Family members were also to be looked after. In such a situation recording of each and every minute detail by the informant is too much to expect from him. It will be unwise for us to throw overboard entire prosecution story, although it is creditworthy in all other respects, on such an insignificant omission. We have already pointed out herein before that there was no reason for false implication of cousin brothers sparing real assailants. In such a view omission to mention assault by hockey stick in the FIR does not makes prosecution version vulnerable nor disproves presence of the informant during the incident nor makes his depositions unworthy of credence. Consistent prosecution version is that it were (A-5) & (A-2), who had pointedly fired at the injured and the deceased and this allegation practically remains unchallenged in the cross examination, the major portion of which was directed on other aspects than actual incident and most of it is in respect of partition of immovable property and omissions in the FIR and in 161 Cr.P.C. statement. There was no special reason for the informant to assign specific roles to the two of the appellants had that not been true. He has been subjected to very lengthy cross examinations running in many dates and therefore, some natural discrepancies and infirmities were bound to occur in his depositions, but they all do not discredit authenticity of the prosecution story. It can very well be perceived that omissions and insignificant contradictions are bound to occur because of enormity of the incident in which it was attempted to gun down both father and brother of the informant by their own relatives. Because of hurry and surcharged atmosphere informant could not pen down entire episode in his FIR and has mentioned only what he thought absolutely necessary, but that does not crumble convincing edifice of well knitted prosecution version.

Turning towards another criticism regarding non examination of independent witnesses and house ladies, we find that father had died in 2002 and hence could not be examined and since ladies of the house were parade nashin consequently they were reluctant to appear before the court. This explanation offered by the informant is acceptable. Still in villages women folk desist from appearing in public places. So far as other independent witnesses are concerned, their non- examination is of no consequence because seldom it is found that in a family dispute independent villagers takes sides with either of the factions. Here was an incident which occurred between cousins and family of two sibling brothers and hence, it will be futile to think that independent person will join informant to support his case and make foes in their own village. Informant had further evidenced that because witnesses were threatened therefore, they were not ready to depose against the accused persons. Defence has not been able to fathom out any significant statement in the depositions of the informant, except some minor omissions and contradictions, so as to distract the prosecution case from it's main allegations. PW1 had categorically denied defence suggestion that the incident had occurred in the wee hours of the morning. His evidence examined in it's entirety is worthy of credence and he has not wavered in narrating the prosecution story. No doubt regarding assault by hockey stick and non-naming acquitted accused in the FIR, has some weakness but it does not erode the credibility of the prosecution version as against some of the appellants.

Yet another criticism of the appellants' counsel that on a single testimony appellants should not be convicted too does not carry much weight. It is not the quantity but the quality of evidence that matters. Why informant will fabricate a false version sparing and ignoring real assailants is not understandable? Defence has not been able to fathom out any motive for other persons to execute the crime, as no cross examination of P.W.1 was directed regarding his enmity with any other person. In such a view, but for the appellants, who were assigned specific roles, no other person would have committed the crime is the only prudent conclusion. Medical reports are consistent with the prosecution story and hence the authenticity of the prosecution version is writ large on the evidences on record.

Now, we advert to some disturbing features of prosecution allegations in respect of those accused to whom a general and omnibus role was assigned. So far as appellant Neeraj Mishra (A-5) and appellant Arun Kumar Dubey (A-2) and Rakesh Bharti (A-4) are concerned, their participation in the crime is well anointed by assigning them specific roles and narrating parts played by them during the incident and these accused cannot escape liability and cannot be absolved of the crime committed by them. Regarding rest of the appellants, there has been no specific roles except that they had resorted to firing without causing any injury to anybody. It is a case where a solitary witness had deposed against all the accused persons. He is inimical, partisan, related and hence taking abundant caution and scrutinizing his evidence carefully, we are of the view that to convict even those accused appellants vicariously, who have not been assigned any specific role, but has been given only an omnibus general role of shooting indiscriminately will be hazardous. Their presence during the incident has not been established by convincing and confidence inspiring evidences. For causing injuries to the deceased and to the two injured firing resort to by (A-5), (A-4) and (A-2) would have been sufficient and therefore, so far as rest of the appellants Kamlesh Dubey (A-1), Guddu @ Bhartendu Yadav (A-3), and Pravesh @ Babloo (A-6) are concerned we are inclined to confer benefit of doubt on them, as prosecution has not been able to establish their participation in the crime convincingly and satisfactorily. From the eye witness of account of a solitary eyewitness, it is difficult to perceive that they had played any role in execution of the crime and were members of an unlawful assembly with common object to commit murder. Incident has started all of a sudden without any premeditation. On the facts of the appeal it cannot be said that common object pervaded each of the accused prior to shot fired by (A-5). It also cannot be concluded that during the occurrence any common object engulfed the accused. It will be very hazardous to read the evidences pedantically without separating truth from falsehood, and grain from the chaff. Earlier also they had not involved themselves in any incident amongst the relatives. Assigning a general role in an omnibus manner does not inspire any confidence and therefore, we assoilzie the case in their favour. Whether they were members of unlawful assembly at all or not is also doubtful. All of a sudden in midst of dialogue that the incident started. Nobody had any idea regarding happening of the incident. Thus unless something specific is brought forth which may unambiguously point out presence of those accused who had not participated in the crime at all with no overt act, it will be dangerous hold them guilty merely on ipse dixit by a solitary, partisan, inimical and related witness. We do not mean to say active participation is sine qua non to convict an accused of the crime with the aid of section 149 I.P.C., but what we impress upon is that existence of common object must be shown by reliable evidences. We aptly draw support from underlying apex court decision for our above conclusions. In Daya Kishan and others versus State of Haryana:AIR 2010 SC 2147 it has been held by the apex court as under:-

"13. Applying the abovementioned well settled principles to the facts of the present case, this Court finds that the prosecution has not led any evidence to prove that the accused party had any grievance or grudge against the deceased Rajesh, who was nephew of the first informant Bhale Ram. The only fact, which can be held to be proved by the prosecution, is that the accused Krishan had an altercation with Sanjay relating to purchase of some goods, after which Krishan had threatened Sanjay and had then left the shop and come back within a short duration with other four accused including the appellant, who were variously armed. The further fact proved by the prosecution is that immediately on coming to the place of incident, the son of the appellant named Sat Narayan @ Pohla had fired a shot at Rajesh without any provocation or previous enmity or any other reason. It may be mentioned that the defence had tried to prove enmity between the first informant and the appellant but the substantive evidence of first informant Bhale Ram, examined as PW-4, and injured Sanjay, examined as PW-10, in fact goes to prove that there was no such dispute relating to the land and/or enmity between the first informant Bhale Ram and the appellant. The record does not indicate that any altercation had taken place between Krishan, who is son of the appellant, and deceased Rajesh when accused Krishan had gone to the shop of injured Sanjay for purchasing certain articles. In fact, the altercation had taken place between Krishan and injured Sanjay. Though it was the case of the prosecution that after reaching the place of incident, the members of the unlawful assembly had given lalkara before the attack, the first informant in his substantive evidence before the court has not mentioned anything about the said lalkara though it was so mentioned by him in his FIR. Thus, the fact that lalkara was made before the attack will have to be disbelieved. If the evidence of the injured witness is appreciated in the above background, it becomes evident that no evidence could be adduced by the prosecution to establish that common object of the unlawful assembly was to do away with Rajesh or cause any injury to him. As mentioned earlier the evidence clinchingly establishes that immediately after reaching the place of incident a shot was fired by accused Pohla from his gun. It would have been a different matter if Rajesh had suffered injuries in some other manner, e.g., Rajesh had tried to intervene when Sanjay was being attacked and was shot at. In such circumstances provisions of Section 149, IPC could have been well invoked. There is no evidence regarding meeting of minds or formation of the common object even at the spur of the moment, when Pohla immediately after reaching the place of incident shot at the deceased Rajesh. There is no evidence suggesting that the appellant said something to indicate that he wanted the deceased to be done away with. There is nothing to establish that the appellant knew that Pohla would cause fatal injuries to the deceased, though the appellant must have anticipated that Pohla would cause injuries to Sanjay. In the present case, no overt act is attributed to the appellant so far as the deceased is concerned. Mere fact that the appellant was armed with a lathi by itself would not prove that he shared common object with which the main accused Pohla was inspired. The prosecution has not led the evidence to establish nexus between the common object and the offence committed. The appellant, being father of the accused Krishan, who had an altercation earlier with injured Sanjay, had accompanied Krishan, which can be termed as natural conduct on the part of the appellant. It is relevant to notice that in the course of the incident the appellant himself had sustained serious injuries. The testimony of PW-14, Dr. Rajesh Saini indicates that he had examined the appellant Daya Kishan on December 1, 1998 at 2.30 P.M. and noticed abrasion of 1.5 cm x 0.2 cm on anterior surface of left leg and swelling around the abrasion. According to him the movements of leg were restricted and he had also found lacerated wound of 6 cm x 0.3 cm on left parietal region. The testimony of Dr. Gaurav Bhardwaj, examined as DW-1, makes it clear that the appellant had sustained fracture of both bones of the left leg for which POP cast was given. As noticed earlier the first informant Bhale Ram has mentioned in his First Information Report itself that he had caused injuries to the appellant in exercise of his right of self-defence. The record does not indicate that the injuries sustained by the appellant were caused by deceased Rajesh. It is not the case of the prosecution that the appellant retaliated or asked others to attack the first informant despite having received serious injuries, which would indicate that the appellant had no grudge nor shared the object with which the accused Pohla had fired shot at the deceased Rajesh. The only circumstance on the basis of which the prosecution wants to hold that the common object of the unlawful assembly was to murder Rajesh is that Pohla had a gun and the appellant was a member of an unlawful assembly. The test for application of Section 149, IPC as suggested by the prosecution cannot be accepted. On the peculiar facts and in the circumstances of the case it can be safely concluded that the appellant did not share common object of one of the members of the unlawful assembly to cause death of Rajesh. The appellant cannot be reasonably attributed with knowledge that there was likelihood of commission of murder of Rajesh, because no altercation or quarrel had taken place between Rajesh and the accused Krishan nor there was any enmity between the appellant and Rajesh. Under the circumstances, this Court is of the opinion that the conviction of the appellant recorded under Section 302 read with Section 149, IPC for causing death of deceased Rajesh is not well-founded and is liable to be set aside. As far as conviction of the appellant under Section 307 read with Section 149, IPC is concerned, this Court finds that the said conviction recorded by the Sessions Court and affirmed by the High Court is amply borne out from the evidence on the record. So also the learned counsel for the appellant could not demonstrate that the conviction of the appellant under Section 323 read with Section 149, IPC and under Section 148, IPC are contrary to the evidence on record. Therefore, those convictions will have to be upheld."

In Sikandar Singh and others versus State of Bihar:AIR 2010 SC 3580 it has been held by the apex court as under:-

"16. A 'common object' does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful."

In Shiyjee Singh and Ors. v. State of Bihar:AIR 2009 SC 417 it has ben observed by the apex court as under:-

"8. A plea which was emphasized by the appellants relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly."

Since we are of the view that only three accused had participated in the incident hence we cannot sustain and apply section 149 I.P.C. and therefore we take out the prosecution case from the ambit of section 149 I.P.C. and put it within the bracket of section 34 IPC in respect of three appellants (A-2), (A-4) and (A-5).

Resultantly, the appeal of appellants Kamlesh Dubey (A-1),Guddu Yadav @ Bhartendu Yadav (A-3) and Pravesh @ Babloo (A-6) is allowed and their conviction and sentence recorded in the impugned judgment and order is set aside and they are acquitted of all the charges. These appellants are on bail, they need not surrender, their personal and surety bonds are cancelled.

Appeal of appellants Arun Kumar Dubey (A-2), Neeraj Mishra (A-5),and Rakesh Bharti (A-4) deserves to be allowed in part. Their conviction under section 148 IPC and imposed sentence therefore is set aside but as the prosecution has anointed their guilt convincing with clarity and without ambiguity, therefore for offence under section 307/34, 302/34 IPC their appeals has to be dismissed.

Concludingly conviction and sentence of appellants Neeraj Mishra (A-5) and Arun Kumar Dubey (A-2) and Rakesh Bharti (A-4), u/s 148 I.P.C., as is recorded in the impugned judgment, is hereby set aside but their conviction u/s 307/149 and 302/149 I.P.C. is altered to offence u/s 307/34 and 302/34 I.P.C. for which offences they are imposed with the same sentences of 10 years R.I. with fine of Rs. 10,000/= and in default of payment of fine to undergo 6 months further R.I. under section 307/34 IPC and imprisonment for life and a fine of Rs. 10,000/= and in default of payment of fine to serve 6 months additional R.I. under section 302/34 IPC as is recorded in the impugned judgment and order. With the aforesaid modification in their conviction and sentences, appeal of these three appellants Arun Kumar Dubey (A-2), Rakesh Bharti (A-4) and Neeraj Mishra (A-5) are dismissed.

Now adverting to the revision against acquittal preferred by Nagesh Kumar Mishra, we are of the view that no illegality has been committed either of procedure or of law in absolving accused respondents 2 to 7 of all the charges framed against them by the learned trial Judge through the impugned judgment and order. Learned counsel for the revisionists has not been able to point out any illegality in the order of their conviction. In revision reappraisal of evidences is possible only when it is shown that the view adopted by the learned trial court was wholly perverse and against the merits of evidences on record, and no prudent man would have arrived at the same conclusions as was done by the learned trial court. No such argument was raised before us. We may not agree with the opinion taken by the learned trial Judge while acquitting respondents but at the same time we are conscious of the fact that in revision against acquittal, we are not entitled to reappraise the evidence and sift and weigh them, as an appellate Court. Moreover, in revision, an acquittal, cannot be converted into a conviction and we consider it wholly inappropriate to direct retrial after passing of many decades. The opinion taken by the learned trial Judge, while acquitting the respondents, cannot be said to be de hors the evidences and, in no case, it can be judged as perverse or absurd.

In our view we rely upon following apex court decision. In Sheetala Prasad and Ors. v. Sri Kant and Anr.:AIR 2010 SC 1140 it has been held by the apex court as under:-

"9. The High Court was exercising the revisional jurisdiction at the instance of a private complainant and, therefore, it is necessary to notice the principles on which such revisional jurisdiction can be exercised. Sub-section (3) of Section 401 of Code of Criminal Procedure prohibits conversion of a finding of acquittal into one of conviction. Without making the categories exhaustive, revisional jurisdiction can be exercised by the High Court at the instance of private complainant (1) where the trial Court has wrongly shut out evidence which the prosecution wished to produce, (2) where the admissible evidence is wrongly brushed aside as inadmissible, (3) where the trial Court has no jurisdiction to try the case and has still acquitted the accused, (4) where the material evidence has been overlooked either by the trial Court or the appellate Court or the order is passed by considering irrelevant evidence and (5) where the acquittal is based on the compounding of the offence which is invalid under the law. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice require interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered.

10. Applying the above stated principles to the facts of the case on hand, this Court finds that after discussing medical evidence and evidence of injured witness in great detail the High Court has prima facie come to the conclusion that case under Section 308 IPC is made out against the appellants. Such a conclusion could have been recorded only in a properly constituted appeal, filed by the State Government. The High Court has further concluded that no offence punishable under Section 324 IPC is committed by the appellants. This finding could have been recorded only in an appeal filed by the appellants. In the face of prohibition contained in Section 401(3) of the Code of Criminal Procedure, it was all the more incumbent upon the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method. Further, the matter is remitted to the learned Additional Sessions Judge for the purpose of passing fresh order of conviction and imposition of sentence on the appellants in the light of what is observed in the impugned judgment. In the impugned judgment, the High Court has concluded that the appellants are guilty under Section 308 read with Section 149 IPC and not under Section 324 read with Section 149 IPC. Therefore, on remand the Trial Court is left with no judicial discretion but to convict the appellants under Section 308 read with Section 149 IPC and impose punishment on them. Normally, when High Court decides to interfere with the judgment of the Trial Court in exercise of revisional jurisdiction, the retrial of the case is ordered based on certain well settled principles. However, after recording guilt of an accused under particular provision of Indian Penal Code, the matter could not have been remitted to the Sessions Court for passing appropriate order of conviction and punishment.

11. On the facts and in the circumstances of the case, this Court is of the view that the High Court has exercised revisional jurisdiction with material illegality and irregularity resulting into miscarriage of justice to the appellants and, therefore, the appeal deserves to be allowed."

We therefore find no merit in Criminal Revision No. 1387 of 2007, Nagesh Kumar Mishra Vs. State of U.P. and others and therefore, dismissed the same by affirming the acquittal of respondents 2 to 7 in the aforesaid revision.

All the appeals as well as criminal revision are finally decided as above.

Let a copy of the judgment be certified to the learned trial Court for it's intimation.

Dt.5.10.2012

Rk/Arvind/Tamang/-