Tejram Kewat @ Teju vs State Of Chhattisgarh
2022 Latest Caselaw 7540 Chatt

                                     1
                                                           Cr.A. No. 904 of 2013


                                                                       NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                        Criminal Appeal No. 904 of 2013
  1. Tejram Kewat @ Teju, S/o Vishram Kewat, A/A 24 years,
  2. Naresh Kumar S/o Radhelal Yadav, A/A 30 years,
  3. Radhelal @ Bhaggu, S/o Kariya Yadav, A/A 60 years,
  4. Brijlal S/o Sakharam Kewat, A/A 40 years
  5. Khel Kumar @ Khelu S/o Sidar Yadav, A/A 30 years (In compliance
     of order of this Court dated 02.12.2022, his name has been
     deleted as he died and appeal on his behalf stood abated),

     All R/o Tauli Dih, Thana Sarsiwan, Balodabazar, Civil & Revenue
     District Raipur, Chhattisgarh
                                                      ---- Appellants
                                 Versus
   State of Chhattisgarh, Through Aarakshi Kendra Sarsiwan, District
    (Now Balodabazar), Chhattisgarh
                                                    ---- Respondent

  For Appellants        :     Mr. Arvind Shrivastava, Advocate
  For Respondent        :     Mr. Arjit Tiwari, Panel Lawyer

                             Division Bench:
                   Hon'ble Shri Justice Sanjay K. Agrawal
                   Hon'ble Shri Justice Rakesh Mohan Pandey
                            Judgment on Board
                               (14.12.2022)
Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellants/accused herein

under Section 374 (2) of the Cr.P.C. is directed against the

impugned judgment of conviction and order of sentence dated

16.08.2013 passed by the Court of learned IInd Additional Sessions

Judge, Balodabazar in Sessions Trial No. 04/2013, whereby each of

the appellants have been convicted for offence punishable under

Section 147 of the IPC and sentenced to undergo rigorous

imprisonment for six months with fine of Rs.100/-, in default of

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payment of fine to further undergo additional rigorous imprisonment

for fifteen days; under Section 148 of the IPC and sentenced to

undergo rigorous imprisonment for one year with fine of Rs.200/-, in

default of payment of fine to further undergo additional rigorous

imprisonment for fifteen days and under Section 302 read with

Section 149 of the IPC and sentenced to undergo imprisonment for

life with fine of Rs.1,000/-, in default of payment of fine to further

undergo additional rigorous imprisonment for six months. It is also

directed that all the sentences to run concurrently.

2. The case of the prosecution, in brief, is that in the intervening night

of 23rd-24th October, 2012 02:30 am a dance program was

organized at village Taulidih, the appellants herein alongwith co-

accused namely Mahettar and Shivkumar and appellant/accused

Khel Kumar @ Khelu (died and his appeal stood abated) constituted

unlawful assembly with a common object to commit murder and in

furtherance of their said common object, they all were armed with

deadly weapons i.e. axe and gupti and caused murder of Santosh

Kumar Sahu (deceased), thereby they committed the aforesaid

offence.

3. The further case of the prosecution, in nutshell, is that on

23.10.2012 at village Taulidih, a dance program was organized and

during continuance of that program at about 02:30 am dispute arose

between the appellants and the deceased and thereafter in

furtherance of common object in front of house of Firatram, the

appellants herein and co-accused assaulted deceased Santosh

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Kumar Sahu by hands and fists and co-accused Shivkumar

assaulted the deceased by means of gupti by which the deceased

suffered grievous injuries on his stomach and chest. The deceased

was smeared with blood and became unconscious. Thereafter, the

family members of the deceased and others took the deceased to

the Government Hospital, Sarangarh where he has been declared

dead by the Doctor. Therefore, offence under Section 302 of the

IPC was registered against unknown person vide F.I.R. Ex.-P/12 in

Police Station Sarsiwa, Balodabazar. Merg intimation was also

recorded vide Ex.-P/11. Summons were issued to the witnesses

under Section 175 of Cr.P.C. vide Ex.-P/1 and in presence of the

witnesses, inquest was conducted vide Ex.-P/2. Spot map was

prepared vide Ex.-P/8. Nazrinaksha was also prepared by Patwari

vide Ex.-P/7. The dead body of deceased Santosh Kumar Sahu

was sent for postmortem. The postmortem examination was

conducted by Dr. M.K. Manhar (PW-4) and he gave his report vide

Ex.-P/5. As per postmortem report (Ex.-P/5), Dr. M.K. Manhar (PW-

4) opined that cause of death of deceased Santosh Kumar Sahu

was harmorrahgic shock due to excessive blood loss from the vital

organ (heart) and body. Doctor also opined that death of the

deceased was homicidal in nature.

4. Accused/appellants herein were arrested on 28.10.2012. After due

investigation, the accused/appellants were charge-sheeted for the

offence punishable under Sections 147, 148, 149 & 302 of the IPC

and Sections 25 & 27 of Arms Act which was placed before the

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Court of Judicial Magistrate First Class Bhatgaon and it was then

committed to the Court of IInd Additional Sessions Judge,

Balodabazar for trial in accordance with law, in which the accused

persons abjured their guilt and entered into defence. The learned

trial Court framed charges under Sections 147, 148 & 302/149 of

the IPC against the appellants which were denied by them and they

prayed for trial. Co-accused Shivkumar absconded from the date of

incident.

5. In order to bring home the offence, prosecution examined 18

witnesses and brought on record 18 documents. Statements of the

appellants/accused were recorded under Section 313 of the CrPC

wherein they abjured their guilt, they did not examine any witness,

however, exhibited 04 documents i.e. Exibit.-D/1 to Ex.-D/4.

6. Learned trial Court, after appreciating the oral and documentary

evidence on record, convicted the appellants for the offence

punishable under Sections 147, 148 & 302/149 of the IPC and

sentenced them as mentioned in the opening paragraph of this

judgment.

7. During the pendency of this appeal, appellant No.5 Khel Kumar @

Khelu died and the appeal so far as it relates to appellant Khel

Kumar @ Khelu stands abated vide order of this Court dated

02.12.2022. Therefore, the present appeal on behalf of remaining

appellants No. 1 to 4 are being considered.

8. Learned counsel for the appellants submits that the appellants have

been convicted with the aid of Section 149 of the IPC, but from the

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evidence of Ramnath (PW-10), it is apparent that the appellants

were not the members of unlawful assembly, the common object of

unlawful assembly was not to commit murder of the deceased. He

further submits that the deceased was killed by co-accused

Shivkumar, the absconded accused, and the appellants have not

caused any injury to the deceased nor have participated in the

incident. He also submits that conviction is not well founded and the

prosecution has utterly failed to collect evidence against the

appellants to connect them with the crime in question. Therefore,

conviction of the appellants for offence punishable under Sections

147, 148 & 302/149 of the IPC is liable to be set aside.

9. Per contra, learned counsel for the State opposing the submission

made by learned counsel for the appellants submits that conviction

is well founded and is strictly in accordance with law. Therefore, the

trial Court has rightly convicted the accused/appellants for the

offence mentioned herein above, thus, the present criminal appeal

filed by the appellants deserves to be dismissed.

10. We have heard learned counsel for the parties, considered their

rival submissions made herein-above and went through the records

with utmost circumspection.

11. The first question is as to whether the death of the deceased was

homicidal in nature, which has been answered by the learned trial

Court in affirmative by relying upon the postmortem report (Ex.-P/5)

duly proved by Dr. M.K. Manhar (PW-4). In our considered opinion

it is correct finding of fact based on evidence available on record

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and same is neither perverse nor contrary to the record. We hereby

affirm that finding.

12. Now, the next question would be, whether the accused/appellants

herein are the perpetrators/authors of the crime in question?

13. It is the case of the prosecution that a dance program was

organized at village Taulidih, during continuance of program,

dispute arose between the appellants and one Ramnath (PW-10)

and in that quarrel Santosh Kumar Sahu (deceased) came to

intervene and tried to settle the dispute between them. Further case

of the prosecution is that all the appellants/accused persons

assaulted the deceased by hands & fists. In that dispute appellant

No. 1 Tejram Kewat abused Ramnath (PW-10) and Tejram and

other accused persons assaulted him and at that time deceased

Santosh Kumar Sahu came there and intervened, then co-accused

Shivkumar caused stab injury by means of gupti to the deceased as

a result of which the deceased suffered grievous injury and

thereafter, the deceased was taken to Sarangarh Hospital where he

has been declared dead by the Doctor.

14. Prosecution case is based on the testimony of sole eyewitness

Ramnath (PW10) and relying upon him, the trial Court held that the

appellants constituted unlawful assembly and in furtherance of their

common object, they caused murder of deceased Santosh Kumar

Sahu. The incident is of 24.10.2012. Ramnath has been examined

as prosecution witness and he has stated before the court that after

attending the dance program, he was returning home finding difficult

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to stay there as it was late night. While he was returning to home,

he reached to gali and asked Tejram (A-1) to give him way to go to

home by which Tejram abused him and other accused persons

came there and started abusing him. At that time deceased Santosh

Kumar Sahu came on the spot and tried to intervene/settle the

dispute and immediately thereafter co-accused Shivkumar came

there and caused stab injury to the deceased by means of knife

(gupti). The deceased suffered injury and died in the hospital.

Thereafter, Ramnath (PW-10) and one Ishwar were suspected to

have committed the offence, both were detained in hospital on

24.10.2012. Further also on 25.10.2012, they were detained along

with Keshram, Firat, Jhumuk and Thandaram, but Ramnath (PW-

10) did not tell the police about the incident and he did not tell that

he is eyewitness to the incident. Thereafter, meeting of Sahu Samaj

was held on 26.10.2012 and after 4-5 days, a meeting was also

held in the School, but he did not tell the names of assailants of

deceased Santosh Kumar Sahu.

15. Antram (PW-14) has stated before the Court that on 26.10.2012

meeting was held in the house of Pilaram Sahu and on 27.10.2012

meeting was also held in the village school in which Ramnath (PW-

10) was present, but Ramnath (PW-10) did not inform the name of

assailants to anyone and in custody of police on 24-25.10.2012, he

did not inform anything about the incident to the police and his (PW-

10) statement came to be recorded on 27.10.2012 by Investigating

Officer M.L. Tiwari (PW-18). As such the fact of not informing by

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Ramnath (PW-10) to the police and including in two meetings have

been held in the village is unnatural. If Ramnath (PW10) had seen

the incident and knew the name of assailants, natural conduct

would be to disclose incident and name of the assailants in the

meetings and non-disclosure of the said fact, name of assailants in

the meetings, apart from his unnatural conduct, it creates doubt on

the testimony of Ramnath (PW-10).

16. Apart from the said fact, M.L. Tiwari (PW-18), I.O., has taken the

statement under Section 161 of the Cr.P.C. of Ramnath (PW-10) on

27.10.2012 and I.O. M.L. Tiwari (PW-18) has stated that he has

taken the statement on 27.12.2012, but further stated in Para-14

that he took the statement of Ramnath on 27.12.2012 because he

could not meet Ramnath (PW-10) prior to 27.12.2012. However,

Ramnath (PW-10) has clearly admitted in his statement before the

Court in Para-16 that he and one Ishwar were suspected for

commission of offence and they were called by police for

interrogation on 24.10.2012 and further he also admitted that he

was also called for interrogation by police on 25.10.2012 alongwith

Keshram, Firat, Jhumuk and Thandaram. Even I.O. (PW-18) in

Para-7 has also admitted that on 25.10.2012, he visited village

Taulidih and Ramnath (PW-10) was present and he was

cooperating in the investigation, but nobody informed about the said

blind murder. As such the statement of I.O. M.L. Tiwari (PW-18) that

till 26.10.2012, he did not have an opportunity to reach Ramnath

(PW-10) to record the statement is totally incorrect and contrary to

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the records, as according to his own version, Ramnath (PW-10) was

available on 25.10.2012 and was cooperating with the investigation,

even on the own showing of Ramnath (PW-10) that he was in

custody of police on 24.10.2012 and 25.10.2012 and, therefore, in

recording the statement after three days makes the version of PW

10 Ramnath untrustworthy, particularly when conviction is based on

the sole testimony of eyewitness Ramanth (PW-10).

17. The Supreme Court in the matter of Amar Singh vs. State (NCT of

Delhi1 has held that there is no legal impediment in convicting a

person on the sole testimony of single witness, as per logic of

Section 134 of Indian Evidence Act, but if there are doubt about the

testimony, the courts will insist on corroboration and held as under :-

"16. Thus, the finding of guilt of the two appellant- accused recorded by the two courts below is based on sole testimony of eyewitness PW 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi, (2003) 11 SCC 367]."

18. Reverting to the facts of the case, it is quite vivid that the sole

testimony of eyewitness Ramnath (PW-10) is not free from blemish,

his conduct is unnatural in not reporting the matter to the police for

1 (2020) 19 SCC 165

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three days, though he remained in custody of police on 24.10.2012

and 25.10.2012. Further, in the meetings held in the village on

26.10.2012 and 27.10.2012, he was present and he had an

opportunity to tell the incident to villagers/panchas and also to tell

the names of the assailants to the villagers/panchas, but he did not

avail the opportunity to inform the incident and to disclose the

names of the assailants to the panchas which creates a doubt in

our mind as to whether he is actual eyewitness to the incident.

Therefore, it would be unsafe to rest conviction of the appellants on

the basis of sole testimony of Ramnath (PW-10).

19. Even assuming that the appellants were the members of unlawful

assembly it has not been shown by the prosecution that they have

caused any overt act for commission of offence of murder of

deceased Santosh Kumar Sahu as it is apparent that stab injury

was caused to the deceased by co-accused Shivkumar (absconded

co-accused), and the appellants have not caused injury to the

deceased or participated in the incident. Where a large number of

persons are alleged to have participated in the crime and they are

sought to be brought to book with the aid of Section 149 IPC, their

Lordships of Supreme Court have applied rule of caution taking into

consideration particular fact-situation and convicted those accused

persons whose presence was clearly established and overt acts

were proved.

20. In the matter of Baladin vs. State of U.P.2, the Supreme Court has

2 AIR 1956 SC 181

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held that mere presence in an assembly does not make such a

person a member of unlawful assembly unless it is shown that he

had something or omitted to do something which would make him a

member of unlawful assembly or unless case falls under Section

142 of the IPC. Merely because some persons assembled, all of

them cannot be condemned ipso-facto as being members of that

unlawful assembly. It was incumbent upon prosecution to prove that

commission of such offence must have been committed in

prosecution of common object of unlawful assembly or such that

members of the assembly knew that it was likely to be committed.

21. In the matter of Sherey vs. State of U.P.3 their Lordship of Supreme

Court has been held in Para-04 as under :-

"4. ..... But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt act are attributed......"

22. Similarly, in the matter of Musa Khan vs. State of Maharashtra4 it

has been held by their Lordships that it must be proved in each

case that the person concerned was not only a member of the

unlawful assembly at some stage, but at all the crucial stages and

shared the common object of the assembly at all these stages and

held in Para-05 as under :-

"5. ...... Thus a court is not entitled to presume that 3 1991 Supp (2) SCC 437 4 (1971) 1 SCC 733

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any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages....."

23. Furthermore, in the matter of Nagarjit Ahir vs. State of Bihar5 their

Lordships applied the rule of caution and in the facts and

circumstance of the case held that "it may be safe to convict only

those persons against whom overt act is alleged with the aid to

Section 149 IPC lest some innocent spectators may get involved".

Thereafter, all these judgments in the matters of Masalti vs. State

of U.P.,6, Sherey (supra), Musa Khan (supra) and Nagarjit Ahir

(supra) have been followed by their Lordships of Supreme Court in

the matter of Pandurang Chandrakant Mhatre and others vs.

State of Maharashtra7 and the accused persons therein against

whom overt act was not there, applied the rule of caution held in

Para-74 as under :-

"74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3, and A-12 under Section 302 read with Section 149 I.P.C. whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are

5 (2005) 10 SCC 369 6 AIR 1965 SC 202 7 (2009) 10 SCC 773

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clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149 I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so."

24. Lastly, in the matter of Vijay Pandurang Thakre and others vs.

State of Maharashtra8 it has been further held that three elements

contained in Section 149 IPC i.e. (i) there must be an unlawful

assembly; (ii) Commission of an offence by any member of an

unlawful assembly and (iii) Such offence must have been committed

in prosecution of the common object of the assembly; or must be

such as the members of the assembly knew to be likely to be

committed, are satisfied, then only a conviction under Section 149

of I.P.C., may be substantiated, and not otherwise. None of the

Sections 147, 148 and 149 applies to a person who is merely

present in any unlawful assembly, unless he actively participates in

the rioting or does some overt act with the necessary criminal

intention or shares the common object of the unlawful assembly and

further held in Para-20 & 21 as under :-

"20. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body.

Had there been any common objective to cause 8 (2017) 4 SCC 377

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murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc.

21. We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case."

25. The principles of law laid down in Musa Khan (supra) has been

followed by the Supreme Court in the matter of Usmangani alias

Bhura Abdul Gaffar vs. State of Gujarat9 with approval.

Thereafter, very recently in the matter of Arvind Kumar @

Nemichand vs. State of Rajasthan10 wherein the scope of Section

149 of IPC was considered by the Supreme Court and held as

under :-

"Scope of section 149"

50. Section 149 of the Code deals with a common object. To attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members.

Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one 9 (2020) 12 SCC 503 10 2021 SCC Online SC 1099

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when the assembly is unlawful. It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offense. Thus, it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member. Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction. Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offense committed by the others under section 149 IPC. The principle governing the aforesaid aspect is taken note of by this court in Ranjit Singh v. State of Punjab, (2013) 16 SCC 752:

"35. Baladin v. State of U.P. [AIR 1956 SC 181 : 1956 Cri LJ 345] was one of the early cases in which this Court dealt with Section 149 IPC. This Court held that mere presence in an assembly does not make a person a member of the unlawful assembly, unless it is shown that he had done or omitted to do something which would show that he was a member of the unlawful assembly or unless the case fell under Section 142 IPC. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. The prosecution in all such cases shall have to lead evidence to show that a particular accused had done some overt act to establish that he was a member of the unlawful assembly. This would require the case of each individual to be examined so that mere spectators who had just joined the assembly and who ware unaware of its motive may not be branded as members of the unlawful assembly.

36. The observations made in Baladin case [AIR 1956 SC 181 : 1956 Cri LJ 345] were considered in Masalti v. State of U.P. [AIR 1965 SC 202 :

(1965) 1 Cri LJ 226] where this Court explained that cases in which persons who are merely passive witnesses and had joined the assembly

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out of curiosity, without sharing the common object of the assembly stood on a different footing; otherwise it was not necessary to prove that the person had committed some illegal act or was guilty of some omission in pursuance of the common object of the assembly before he could be fastened with the consequences of an act committed by any other member of the assembly with the help of Section 149 IPC. The following passage is apposite in this regard: (Masalti case [AIR 1965 SC 202 : (1965) 1 Cri LJ 226], AIR p.

211, para 17) "17. ... The crucial question to determine in such a case 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 by Section 141.

While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in Baladin [AIR 1956 SC 181 : 1956 Cri LJ 345] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."

(emphasis supplied)

37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] this Court held that while in a faction- ridden society there is always a tendency to implicate even the innocent with the guilty, the

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only safeguard against the risk of condemning the innocent with the guilty lies in insisting upon acceptable evidence which in some measure implicates the accused and satisfies the conscience of the court.

39. That in a faction-ridden village community, there is a tendency to implicate innocents also along with the guilty, especially when a large number of assailants are involved in the commission of an offence is a matter of common knowledge. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scruitinise the evidence more closely to avoid any miscarriage of justice."

26. Reverting to the facts of the present case in light of the aforesaid

principles of law laid down by the Supreme Court, it is quite vivid

that none of the appellants were armed with deadly weapon except

their presence has been recorded on the basis of sole testimony of

alleged eyewitness Ramnath (PW-10) to which we have already

held to be untrustworthy and not reliable in forgoing paragraphs, as

such neither the appellants have assaulted deceased Santosh

Kumar Sahu nor any specific overt act has been alleged against

them and it has not been established that four accused

persons/appellants herein namely Tejram Kewat @ Teju, Naresh

Kumar, Radhelal @ Bhaggu and Brijlal have shared common

object/intention and particularly it is not proved that these appellants

knew that offence of murder is likely to be committed by co-accused

Shivkumar who was armed with knife (gupti) and assaulted

deceased Santosh Kumar Sahu. By applying the rule of caution as

has been held by their Lordships of the Supreme Court in the

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matters of Masalti (supra), Sherey (supra), Musa Khan (supra),

Nagarjit Ahir (supra), Pandurang Chandrakant Mhatre (supra)

and Vijay Pandurang Thakre (supra) it would be unsafe to convict

these 04 accused-appellants in the present appeal, namely, Tejram

Kewat @ Teju (A-1), Naresh Kumar (A-2), Radhelal @ Bhaggu (A-

3) and Brijlal (A-4) for offence under Sections 147, 148 & 302 of the

IPC with the aid of Section 149 of the IPC and their conviction for

aforesaid offences is liable to be set aside.

27. In view of the aforesaid analysis, we are of the considered opinion

that prosecution has miserably failed to bring home the offences

punishable under Sections 147, 148 & 302 of the IPC read with the

aid of Section 149 of the IPC against the appellants and the trial

Court is absolutely unjustified in convicting them for the said

offences. Therefore, the appellants are entitled to benefit of doubt

and we hereby set aside the impugned judgment of conviction and

order of sentence passed by the trial Court and acquit the

appellants from the charges levelled against them. The appellants

are reported to be on bail, therefore, their bail bonds shall remain in

force of a period of six months from today in view of the provisions

of Section 437-A of Cr.P.C.

28. Accordingly, this criminal appeal stands allowed.

                      Sd/-                                         Sd/-

            (Sanjay K. Agrawal)                         (Rakesh Mohan Pandey)
                  Judge                                         Judge
vatti