(Against The Judgment Of ... vs Basudeo Sah @ Sahu Son Of Nil Kamal ...
2023 Latest Caselaw 578 Jhar

                                 1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    Acquittal Appeal (DB) No. 34 of 2003
                              ------
 (Against the Judgment of acquittal dated 10.03.2003 passed by
 Additional District Judge, Fast Track Court, Seraikella in S. T. No.41 of
 2001)
                              ------
 State of Jharkhand                     ........               Appellant
                             Versus
1.Basudeo Sah @ Sahu Son of Nil Kamal Sah
2. Santosh Sah @ Sahu Son of Nil Kamal Sah.
3.Buvan Sah @ Sahu Son of Nil Kamal Sah.
4.Indra Sah @ Sahu Son of Nil Kamal Sah.
5. Dulal Mahto Son of Not known.
   All resident of village Khunti P.O. Khunti, P.S. Chandil, District West
Singhbhum                               ........     Accused/Respondent
                           with
                    Criminal Revision No.325 of 2003
Krishna Chandra Oraon son of Late Nandu Oraon, resident of village
Khunti, P.O. Khunti, P.S. Chandil, District Singhbhum (West) now
district Seraaikella-Kharsawan          ........              Petitioner
                             Versus
1.The State of Jharkhand.
2. Basudeo Sah @ Basudeo Sahu
3. Bhuvan Sah @ Bhuvan Sahu.
4.Indra Sah @ Indra Sahu
5. Santosh Sah @ Santosh Sahu, son of Nagen Sahu.
6.Dulal Mahato son of Siriya Mahato.
 Opposite party No.2 to 4 are the sons of Nilkamal Sahu, all are
residents of village Khunti, P.O. Khunti, P.S. Chandil, District
Singhbhum (West), Now district Seraikella-Kharsawan.
                                        ........       Opposite Parties
                          ----
                       PRESENT
         HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
               HON'BLE MR. JUSTICE SUBHASH CHAND
                           -----
For the Appellants         : Mr. Vineet Kumar Vashistha, Spl.P.P
For the Petitioner         : Mr. R.C.P. Sah, Advocate
                           : Ms. Ruby Yadav, Advocate
For Respondent/O.P.        : Mr. H.K. Shikarwar, Advocate
                           : Ms. Priyanka, Advocate
                           : Mr. Manish Singh, Advocate
                           -------
              rd
 CAV on: 23 January, 2023:              Pronounced on 03/02/2023
Per: Sujit Narayan Prasad, J.

1. The instant acquittal appeal has been filed by the State under

Section 378(1) and (5) of the Code of Criminal Procedure directed

against the judgment of acquittal dated 10.03.2003 passed by the

learned Additional District Judge, Fast Track Court, Saraikella in S.T.

Case No.41 of 2001 whereby and whereunder the charge framed against

the respondents have been found to be not proved beyond all shadow of

doubt and as such the accused persons, the respondents herein have

been acquitted.

The criminal revision has also been filed by the informant against

the judgment of acquittal dated 10.03.2003 passed by the learned

Additional District Judge, Fast Track Court, Saraikella in S.T. Case

No.41 of 2001 whereby and whereunder the charge framed against the

respondents have been found to be not proved beyond all shadow of

doubt and as such the accused persons, the respondents herein have

been acquitted.

2. Both the appeal and the revision since arise out of the judgment

dated 10.03.2003 and as such both the cases have been directed to be

heard together as would appear from the order dated 04.08.2016 and as

such both the matters are being heard together and are being disposed of

by the common judgment.

3. The brief facts of the case, as per the written statement made in

fardbeyan, reads as under:

The informant-Krishna Chandra Oraon (P.W.-9) gave his written

statement before the In-charge, P.S- Chandil that while he was with his

elder brother, namely, Jagdish Chand Oraon (deceased) the accused

persons Basudeo Sahu, Bhuvan Sahu, Indra Sahu and Santosh Sahu

came there in his house and assaulted Jagdish Chandra Oraon with the

sharp edged weapon and pistol due to which Jagdish Chandra Oraon

became seriously injured and is under treatment in nursing home

Golchakkar, Chandil.

4. On the basis of the said fardbeyan, the F.I.R. being Chandil P.S.

Case No.103 of 2000 was instituted for commission of offence under

Sections 448, 324, 307 of the Indian Penal Code. Late on Section

302/34 of I.P.C

The investigating agency on conclusion of investigation has not

found the charge proved against the respondents for commission of

offence under Sections 147, 148, 302/149 of the Indian Penal Code. The

concerned court has issued notice vide dated 02.01.2001 asking the

informant as to why the final form submitted be not accepted. Jagdish

Chandra Oraon, subsequently, has died. The concerned court has

accepted the objection against the final form submitted and took

cognizance for the commission of offence under Sections 147, 148,

302/149 of the Indian Penal Code and the case was committed to the

Court of Sessions wherein charge has been framed against the accused

persons under Sections 147, 148, 302/149 of the Indian Penal Code.

The accused persons having pleaded not guilty and claim for trial

and accordingly the trial has commenced. The learned trial court has not

found the accused persons/respondents guilty for the offence under

Sections 147, 148, 302/149 of the Indian Penal Code and accordingly

the respondents were acquitted against which the present acquittal

appeal as also the revision has been filed.

5. Learned counsel appearing for the appellant and the revision

petitioner have jointly assailed the judgment of acquittal on the

following grounds:

(i) That the learned trial court has committed gross error in

discarding the testimony of the eye witnesses i.e. P.W.-1, P.W-5 and

P.W.-7 as also P.W.-9 wherein specific allegations have been levelled

against the respondents and all the witnesses have consistently affirmed

the prosecution story but in complete disregard thereto the judgment of

acquittal has been passed and as such the same since suffers from

perversity and therefore is not sustainable in the eye of law and is fit to

be quashed and set aside and the accused persons be convicted for the

commission of offence under Sections 147, 148 and 302/149 of the

Indian Penal Code.

(ii) The learned trial court while passing the judgment of acquittal

against the respondents has discarded the testimony of the ocular

witness having been corroborated by the medical evidence and on this

count also the impugned judgment of acquittal is not sustainable.

(iii) The learned trial court on the conjecture and surmises has

reached to the conclusion by visualizing the position and by taking the

length and width of the room where the scuffle as shown in between the

deceased and the accused persons are not possible even though there is

no examination of the sight of occurrence by the investigating officer.

(iv) The learned trial court has also failed to appreciate that the charge

which has been framed against the respondents has been seen to be not

proved discarding the cardinal principle of proving the charge by taking

together the testimony of ocular evidence and the medical evidence and

as such the judgment of acquittal on this ground also is not sustainable

in the eye of law.

(v) The learned trial court has also not appreciated properly the

culpability of the respondents who had been seen by the witnesses at

the place of occurrence and coming out therefrom along with the spade

(Kudal) and lathi and their appearance has not been rebutted by the

accused persons in course of trial even by not putting any specific

question in the cross examination in rebuttal to that or even no

suggestion to that effect have been given and thereby the presence of

the accused persons having been accepted by the accused persons

themselves and as such there is ingredient of the offence said to be

committed under Sections 147, 148 and 149 and 302 of the Indian Penal

Code but having not been considered in right perspective by the learned

trial court serious illegality has been committed.

6. Per contra, Mr. H. K. Shikarwar, learned counsel for the

respondents has submitted by defending the judgment of acquittal on

the ground that the learned trial court is correct in coming to the

conclusion that the prosecution has failed to establish the charge beyond

all shadow of doubt and as such by taking into consideration the

cardinal principle to prove a charge and to convict the perpetrator is to

depend upon the proving of charge beyond all shadow of doubt and

wherein by taking together the evidence of the witnesses and the

medical evidence it will transpire that there is wide contradiction and as

such by taking into consideration of these aspects of the matter if the

learned trial court has come to conclusion that the prosecution has

failed to establish the charge beyond all shadow of doubt, the same

cannot be said to suffer from an error and as such the impugned

judgment of acquittal does not require any interference.

(ii) The learned trial court has considered the discrepancy in the

testimony of the prosecution witnesses since some of the witnesses

have deposed that the deceased was assaulted by spade while some of

the witnesses have said that the deceased had been assaulted by the lathi

and as such discrepancy if taken into consideration by the learned trial

court while acquitting the respondent/accused persons the same cannot

be considered to be an error.

(iii) The learned trial court has considered the vital aspects of the

matter while passing the judgment of acquittal by taking into

consideration the length and width of the room which were full with

Chowkis (Palangs) and table etc. having 10' x 10' (feet) in length and

width and as such the narration of story of assault as has been shown in

the fardbeyan is not possible in such a small room by giving assault by

lathi upon the deceased which led the deceased to succumb to injury

and considering the said aspect of the matter if the learned trial court

has come to the conclusion that the incidence as has been shown to

have occurred in the fardbeyan is not possible to happen which cannot

be said to suffer from an error.

The learned counsel appearing for the respondents on this ground

has vehemently submitted that there is no error in the impugned

judgment and as such the same may not be interfered with.

7. This Court vide order dated 04.08.2016 has already abated the

instant appeal against respondent no.4, namely, Indra Sah @ Sahu who

is dead.

8. We have heard rival submissions advanced on behalf of the

learned counsel for the parties but before going into the legality and

propriety of the impugned judgment of acquittal, deem it fit and proper

to discuss about the testimony of the witnesses.

9. The prosecution has examined altogether 12 witnesses. P.W.-1,

Lal Mohan Besra has stated that he had seen Indra Sahu, Buvan Sahu,

Basu Sahu, Santosh Sahu, Dulal Mahto were going towards the house

of Jagdish by making noise to remove the tribal man, Jagdish and if he

will not go then he will be killed. It has been stated that all the accused

persons were armed with lathi and had entered into the house of Jagdish

and assaulted him with lathi due to which Jagdish fell down. One

Krishna in course of rescuing Jagdish had also sustained injury in his

hand. Lowin Baske had fled away as also Krishna. It has been stated

that Dulal Mahto had given a spade to Basudeo and asked Basudeo to

assault Jagdish and upon this Jagdish was assaulted thrice on the head

by Basudeo on the same place and thereafter accused persons had fled

away.

In cross- examination he has stated that when he reached near the

house of Jagdish, Jagdish was inside the house along with Krishna and

Lowin who was sitting there. He has stated that the house was at about

15' x 5' (feet) in length and width and heard the alarm of assault from

there. He has stated that Jagdish was assaulted by lathi from Indra Sahu,

Bhuvan Sahu and Basu Sahu then Jagdish fell down. However, Krishna

and Lobin at that time had fled away. He has stated that when he had

gone inside the room the accused persons had fled away by making

noise. He has stated that there was pool of blood in the room.

Anil Kumar Oraon has been examined as P.W-2 and has stated

in his deposition by corroborating what has been stated by P.W-1 about

assault being given by the accused persons namely, Indra Sahu,

Basudeo Sahu, Buvan Sahu, Santosh Sahu, Dulal Mahto upon Jagdish.

In the cross-examination nothing has been said in deviation what

he has stated in the examination in chief. He has stated that in the

Barandah there was pool of blood and his brother was carried by the

villagers to the hospital. He has stated that his brother was not carried to

hospital by him.

Bhuneshwar Oraon has been examined as P.W.-3 and is the

brother of the deceased and has stated about assault being given by the

accused persons upon the deceased brother, namely, Jagdish by lathi.

He has stated that the deceased was being assaulted inside the house.

He has further stated that the accused persons after assaulting the

deceased had fled away.

In the cross-examination he has stated that accused persons had

entered in the house after making noise for committing murder of

Jagdish. He has further stated that upon hearing the said noise he

became afraid and gone to the back side for making noise by raising the

voice that his brother was being assaulted and upon such alarm the local

people had come to his residence.

Budhu Kalindi has been examined as P.W-4 and he has declared

to be hostile.

Lovin Manjhi has been examined as P.W-5 and has corroborated

the story as has been recorded in the fardbeyan. He has stated that the

deceased was assaulted by Kudal over his head thrice. He has also

stated that he was also assaulted by Indra Shau but there was no injury.

He has stated that the accused persons after assaulting the deceased had

fled away. He has been cross-examined and has not said anything

inconsistent what he has said in the examination-in-chief. He has stated

in specific terms that when he entered in the house in order to save the

life of Jagdish, he was also assaulted. He had seen the accused persons

assaulting the deceased and found Jagdish lying on the floor. He has

stated that the accused persons had assaulted the deceased through lathi

and he has also been assaulted and he has sustained minor injury. He

has given measurement of room to be 10' x 10' (feet).

Gurupado Kalindi has been examined as P.W-6 and has

supported the prosecution version.

Ruilu Manjhi has been examined as P.W.7 and has also

supported the prosecution version. He has stated that he had seen the

accused persons assaulting the deceased by lathi. He has also stated that

the accused persons have given three assault through Kudal due to

which the deceased had become senseless and thereafter came in sense

and remain in sense till 12 to 01 in the night and three days thereafter he

died. He has corroborated the entire occurrence in giving the statement

before the police.

Rajendra Rajak has been examined as P.W-8 has been declared

to be hostile.

Krishna Chandra Oraon-the informant, has been examined as

P.W-9 and has supported the prosecution version. He has thoroughly

been cross-examined and has not been inconsistent in making the

statement rather he has stated about the assault being given upon

Jagdish.

Yogeshwar Rai, I.O, has been examined as P.W-10 and has

stated that he has recorded the restatement of the informant. He has

recorded the statement of P.W-5, P.W-7 and P.W-9.

Dr. Niranjan Minz has been examined as P.W-11 who has

conducted the post mortem of the deceased and found the following

injuries with the opinion of death to be caused by the injury sustained

by the deceased:

A. Abrasion I. 6 c.m x 4 cm on left forearm front lower part. B. Stiched wound:

I. 6 ½ cm and 5 cm on left tempo parital region having 21 stiches.

II. 5 cm and 3 cm long on right front parital region having 11 stitches.

III. 11 cm and 4 ½ cm long V shape on right tempo parital region having 11 stitches.

IV. 5 ½ cm long on right occipital region having 4 stitches.

Kapildeo Singh, who has also conducted the investigation has

been examined as P.W-12 and has stated about recording the statement

of the witnesses, namely, P.W-4, P.W-6. He has stated that the Krishna

Chandra Oraon-P.W-9 has stated in his statement that the Basudeo Sahu

has assaulted the deceased through Kudali over his head.

10. It is, thus, evident by going through the testimony of the

prosecution witnesses wherein all the witnesses have supported the

prosecution version. P.W.-1, P.W-2, P.W-5, P.W.-7 and P.W-9 have seen

the occurrence of assaulting the deceased due to which the deceased fell

down and subsequently succumb to injury three days from the date of

assault. The doctor has also corroborated the nature of injury as has

been said by the prosecution witnesses.

It is evident from the testimony of both the investigating officers

P.W-10 and P.W.-12 that while taking the statement of the witnesses i.e.,

P.W-5, P.W-7 and P.W-9 the prosecution version has been supported by

them and they have corroborated what they have said in their testimony

as would appear from paragraphs- 5, 6 and 7 of the testimony of the

P.W-10 wherein the restatement of P.W-7 in paragraph 5, in paragraph 6

statement of P.W-5 and in paragraph 7 the statement of P.W-9 (the

informant) has been stated by him in course of the trial. Similarly, the

another investigating officer, P.W-12 who has recorded the statement of

P.W-4 and P.W-6 who have disclosed before him about the occurrence

by supporting the prosecution version what they have stated at the time

of investigation under Section 161 of the Cr. P. C as would appear from

the testimony of P.W-12 in paragraph 2 and 3.

If the testimony of P.W.-1, P.W-2, P.W-5, P.W.-7 and P.W-9 will

be taken together, we find no inconsistency with the prosecution story

as has been recorded on the basis of the statement of the informant,

P.W-9.

The learned trial court, however, has discussed the testimonies of

these witnesses but considered them not to be trustworthy, warranting

conviction of the accused persons. The learned trial court has reached to

such conclusion on the basis of the discussion which has been made in

paragraph-18 wherein the learned trial court has considered the

fardbeyan of the informant where the name of only four accused

persons armed with sharp cutting weapon and pistol has been recorded.

The learned trial court has further considered about the area of the room

to be 10' x 10' (feet) where it is quite impossible to give assault to such

an extent which will lead to serious assault over the body of the

deceased.

The learned trial court has also considered by taking together the

number of the persons who were inside the room i.e. according to the

prosecution story five accused persons and three injured total eight and

there is no possibility to accommodate eight persons in a room of 10' x

10' (feet). The learned trial court, therefore, has disbelieved the

prosecution story by taking together the nature of injury and by also

considering the nature of injury shown by doctor, according to which

the injury was caused by hard and blunt substance. The learned trial

court has considered that hard blunt substance includes the lathi and

also includes back portion of the spade and it is quite impossible to give

lathi blow in such a short room which is 10' x 10' (feet) in area and as

such by taking together the nature of injury shown by doctor and the

cause of assault shown to have been made in such a small room has

been considered to be not possible and therefore, the learned trial court

has come to the conclusion that the prosecution has failed to prove the

charge beyond all shadow of doubt.

The learned trial court, therefore, has primarily considered the

area of the room which according to the learned trial court is such a

short area where there is no possibility for a quarrel in between eight

persons and to give lathi blow in such a small room.

It appears from the testimony of the P.W-10, the investigating

officer that he has also examined the place of occurrence and has given

the area of the room to be 10' x 10' (feet) but without getting it

measured rather on guess such area has been referred as would appear

from the testimony of the investigating officer, as under paragraph 4

thereof. The P.W-1 in his testimony at paragraph 4 has said the area of

room to be 15' x 5' (feet). It further appears from the testimony of the

P.W-10, the investigating officer that he has not stated about the

measurement of the lathi leading the trial court to come to the

conclusion that how the assault can be given by the lathi in an area of

10' x 10' (feet).

The matter would have been different if the investigating officer

would have measured the length of the lathi but in absence thereof, the

learned trial court has come to such conclusion merely on the

probability.

The trial court has put reliance upon the area of the room by

discarding the testimony of the prosecution witnesses, namely, P.W.-1,

P.W-2, P.W-5, P.W.-7 and P.W-9 who in specific term have deposed

about the occurrence of assault being given upon the deceased which

ultimately led to his death.

11. This Court has also found from the material available on record

that the presence of the respondents at the place of occurrence has not at

all been disputed by the respondents, since, no question to that effect

has been asked in the cross-examination from the witnesses who have

deposed in specific term that they had seen the accused persons going to

the house of Jagdish Oraon and coming out from the house along with

the Kudal and lathi in their hand. Since there is no rebuttal to such

specific testimony and as such the same is being considered by this

Court about the presence of the accused persons at the place of

occurrence. Further P.W-1-Lal Mohan Besra, P.W.-2-Anil Kumar Oran,

P.W-5-Lovin Manjhi @ Lobin Baske, P.W-7-Raylu Manjhi and P.W-9-

Krishna Chandra Oraon in specific term have stated about the presence

of the accused persons and seen assaulting the deceased.

12. Learned counsel appearing for the respondents has raised the

issue about the happening of the incidence in such a small room of 10' x

10' (feet) which is the basis of finding recorded by the learned trial

court for acquitting the accused persons and has said that such finding

cannot be said to suffer from an error but we are not in agreement with

such submission, in absence of proper measurement of place of

occurrence as also the lathi by the investigating officer to this effect.

13. Learned counsel for the respondents has further argued that there

is discrepancy in between the ocular evidence and the medical evidence

and as such the medical evidence is to be accepted over and above the

ocular evidence but this Court is not in agreement with such

proposition on the basis of the settled position of law that even in case

of minor discrepancy in the ocular and the medical evidence, it is the

ocular testimony which prevail upon the medical evidence as has been

held by the Hon'ble Apex Court in the case of Darbara Singh vs. State

of Punjab reported in (2012) 10 SCC 476 wherein at paragraph-10, it

has been observed:

"10. So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved."

Further in the case of State of Punjab vs. Hakam Singh reported

in (2005) 7 SCC 408 it has been held that the evidence of an expert is a

rather week type of evidence and the courts do not generally consider it

as offering conclusive proof and therefore, safe to rely upon same

without seeking independent and reliable corroboration as has been held

by Hon'ble Apex Court in the case of S. Gopal Reddy vs. State of

Andhra Pradesh reported in (AIR 1996 SC 2184).

14. Here in the given facts also P.W-1-Lal Mohan Besra, P.W.-2-Anil

Kumar Oran, P.W-5-Lovin Manjhi @ Lobin Baske, P.W-7-Raylu

Manjhi and P.W-9-Krishna Chandra Oraon have in specific terms stated

about the seeing of the occurrence and the assault on Jagdish Oraon

(deceased) and even the P.W-5-Lovin Manjhi @ Lobin Baske and P.W-

9-Krishna Chandra Oraon have said that they had also sustained injury

and their presence, even, have not been disputed by the learned trial

court, wherein, the presence of the three injured persons along with five

accused persons have been taken note by the learned trial court in the

impugned judgment. These two injured persons i.e., P.W-5-Lovin

Manjhi @ Lobin Baske and P.W-9-Krishna Chandra Oraon have

deposed about the assault being given by the accused persons.

15. This Court on the basis of the liberty so laid as above, is now

proceeding to examine as to whether the judgment of acquittal amounts

to miscarriage of justice by taking together the testimony of the

witnesses.

16. In the case of Rang Bahadur Singh vs. State of U.P reported in

AIR 2000 SC 1209, it has been held as follows:

"The time tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person.

Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, life long liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."

17. This Court is well aware with the settled position of law that if

the two views are possible on the evidence adduced in the case, one

pointing out to the guilt of the accused and other to his innocence, the

view which is favourable to the accused be adopted as has been held by

Hon'ble Apex Court in the case of State of U.P vs. Ram Veer Singh and

Ors. reported in (2007) 6 (Supreme) 164 where the Hon'ble Apex has

held as follows:

"A golden thread which runs through the wave of administration of Justice in criminal cases is that if the two views are possible on the evidence adduced in the case, one pointing out to the guilt on the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an accused. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

18. This Court has examined the factual aspect of the given case in

order to scrutinize as to whether two views are possible or not but on

scrutiny of the testimony of the prosecution witnesses wherein P.W.-1,

P.W-2, P.W-5, P.W.-7 and P.W-9 have seen the accused persons going to

the room and coming out from the room along with the aforesaid

arms/lathis in their hands and when P.W-1, P.W-2 had entered into the

room the deceased was lying on the floor pooled with the blood as

would appear from their testimony.

19. This Court is of the view that since the ocular evidence supports

the prosecution version and there is no inconsistency, as such, this

Court is of the view that on the analysis of the testimony of the

prosecution witnesses as discussed hereinabove that only one view on

the basis of the testimony of the ocular evidence that the crime of

murder has been committed by the respondents, therefore, this Court,

on the basis of the discussion made hereinabove, is the of conscious

view that the prosecution version since has been corroborated by the

testimony of the prosecution witnesses about culpability of the

respondents committing the crime and as such the judgment of acquittal

requires interference.

20. This Court, on the basis of the discussions as made hereinabove

and taking into consideration the testimony of P.W-1-Lal Mohan Besra,

P.W.-2-Anil Kumar Oran, P.W-5-Lovin Manjhi @ Lobin Baske, P.W-7-

Raylu Manjhi and P.W-9-Krishna Chandra Oraon as also that the

learned trial court while discarding their testimony merely on the basis

of the surmises and conjecture by taking the area of the room to be 10'

x 10' (feet) where such assault is not possible, is of the view that the

learned trial court while reaching to such conclusion has based himself

upon the surmises and conjecture by discarding the testimony of the eye

witnesses.

Therefore, according to our considered view, the judgment passed

by the learned trial suffers from perversity, since, the testimony of the

prosecution witnesses have not been considered properly.

21. Accordingly, the impugned judgment passed by the trial court

requires interference. In consequence thereof, the order dated

10.03.2003 passed by the learned Additional District Judge, Fast Track

Court, Saraikella in S.T. Case No.41 of 2001 is quashed and set aside.

In view thereof, both the acquittal appeal and the criminal

revision application stands allowed.

22. This Court is now proceeding to examine on the basis of the

testimony of the prosecution witnesses as to whether ingredients under

Sections 147, 148, 302/149 of the Indian Penal Code is available or not.

23. This Court after taking into consideration the testimony of P.W.-

1, P.W-2, P.W-5, P.W.-7 and P.W-9 has found that the ingredient of

Section 147 and 148 of the I.P.C are available. Section 147 speaks

about guilty of rioting person shall be punished with imprisonment of

either description for a term which may extend to two years, or with

fine, or with both. Section 148 speaks about guilty of rioting, being

armed with a deadly weapon or with anything which, used as a weapon

of offence, is likely to cause death, shall be punished with

imprisonment of either description for a term which may extend to

three years, or with fine, or with both. Therefore, considering the

testimony of the eye witnesses the accused persons are liable to be

convicted for the offence committed under Sections 147 and 148 of the

I.P.C.

24. This Court after taking into consideration of the testimony of

P.W.-1, P.W-2, P.W-5, P.W.-7 and P.W-9 as recorded is of the view that

the ingredient for commission of offence under Section 149 of the I.P.C

is available. Section 149 speaks about common object. A person can be

convicted for his vicarious liability if he is found to be member of the

unlawful assembly sharing the common object in spite of fact whether

he had actually participated for the commission of offence, reference in

this regard may be made to the judgment rendered by the Hon'ble Apex

Court in the case of Bhagwan Singh vs. State of U.P reported in AIR

2002 SC 1836. It has been held by Hon'ble Apex Court in the case of

Nani Singh vs. State of Bihar reported in 2005 SCC (Criminal) 127

that overt act need not be proved so far as the ingredient to be attracted

for commission of offence under Section 149 of the I.P.C only

requirement is to found in unlawful assembly.

25. This Court after considering the provision as contained in

ingredient of Section 149 along with the judgment rendered by Hon'ble

Apex Court in the case of Bhagwan Singh vs. State of U.P (supra) and

Nani Singh vs. State of Bihar (supra) and by taking together the

testimony of P.W.-1 is of the view that the charge which has been

framed under Section 149 has been established beyond all shadow of

doubt and as such respondents are convicted for the offence committed

under Section 149 I.P.C.

26. This Court, in consequence thereof, is of the considered view that

the charge as has been framed against the accused persons for

commission of offence under Sections 147, 148, 302/149 of the Indian

Penal Code are hereby found to be proved and accordingly the

respondents/accused persons are convicted for the offence punishable

under Sections 147, 148, 302/149 of the Indian Penal Code.

27. The accused persons are directed to undergo imprisonment for

two years for commission of offence under Sections 147 and 148 of the

I.P.C. The accused persons are directed to undergo rigorous

imprisonment for life along with fine of Rs.10,000/- each for

commission of offence under Sections 302/149 of the I.P.C. All the

sentences are to run concurrently.

28. The learned trial court is directed to take the accused persons in

custody for undergoing the sentence.

29. Let the Lower Court Record be sent back forthwith along with

copy of this order to the court concerned.

(Sujit Narayan Prasad, J.)

I agree.

(Subhash Chand, J.)

(Subhash Chand, J.)

Jharkhand High Court, Ranchi Saket/ - A.F.R.