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Judgment
Per Sujit Narayan Prasad, J.
The instant appeal is directed against the Judgment of conviction dated 25.07.1998 and order of sentence dated 28.07.1998, passed by learned 1st Additional Judicial Commissioner, Khunti in S.T. No.196 of 1992 arising out of Khunti P.S. Case No. 8 of 1991 registered under Sections 147, 148, 149, 324, 307 and 302 of the Indian Penal Code by which all the appellants have been convicted under Sections 148 and 302/149 of the Indian Penal Code and have been directed to undergo rigorous imprisonment for life for the offence under Section 148 and 302/149 of the I.P.C. Further, the appellant Joura Pahan has been convicted under Section 307/34 of the I.P.C. and sentenced to undergo R.I. for 10 years. Sentences have been ordered to run concurrently.
At the outset it needs to mention that during the pendency of appeal out of 13 appellants seven appellants namely Sadhu Pahan, Joseph Pahan, Karan Singh Munda, Niral Pahan, Lakhan Pahan, Patar Pahan and Matius Pahan had died. Hence, by order dated 28.08.2026, this Court had abated their appeal. The order dated 28.08.2026, is being quoted herein below-
“1.An affidavit has been filed on behalf of the State and placing the same, Mr. Anup Pawan Topno, learned A.P.P. has submitted that appellant No.1, Sadhu Pahan, S/o-Lal Sai Pahan, appellant No.2 Joseph Pahan, S/o-Lalsa Pahan, appellant No.5 Karan Singh Munda, S/o-Sahdeo Munda, appellant No.7 Niral Pahan, S/o-Salmas Pahan, appellant No.9 Lakhan Pahan, S/o-Inder Pahan, appellant No.11 Patar Pahan, S/o-Sirka Pahan, and appellant No.13 Matius Munda, S/o-Ram Sahay Munda have been died. No application on behalf of their legal representatives has been filed to pursue the proceeding as required under section 394 of Cr.P.C pari material 435 B.N.S.S., 2023
2.Considering the aforesaid fact, the appeal stands abated so far as appellant No.1, Sadhu Pahan, S/o-Lal Sai Paha, appellant No.2 Joseph Pahan, S/o-Lalsa Pahan, appellant No.5 Karam Singh Munda, S/o-Sahdeo Munda, appellant No.7 Niral Pahan, S/o-Salmas Pahan, appellant No.9 Lakhan Pahan, S/o-Inder Pahan, appellant No.11 Patar Pahan, S/o-Sirka Pahan, and appellant No.13 Matius Munda, S/o-Ram Sahay Munda is concerned.
3.This appeal is now being heard on behalf of surviving appellants i.e. the appellant No.3 Karam Singh Munda, appellant No.4 Rida Pahan, appellant No.6 Budhua Munda, appellant No.8 Mahadeo Munda, appellant No.10 Sidhu Pahan, and appellant No.12 Joura Pahan.
4.Mr. Saibal Mitra, learned Amicus is present to represent the above surviving appellants.
5.Heard learned counsel for parties at length.
6.Argument concluded.
7.Judgment is reserved.”
The prosecution story in brief as per the allegation made by the Informant Gobardhan Singh Manki(PW-1) in the First Information Report reads hereunder as: -
On 01.02.1991 at 5.30 P.M. Informant Gobardhan Singh Manki son of Janak Singh Manki, resident of village-Jiki P. S. Khunti, Dist.-Ranchi made a fardbeyan before the O/c Khunti P. S. at Chiribera of village Jiki. Infromant has alleged that on 01.02.1991 at 9.00 A.M., the informant Gobardhan Singh Manki, Mangal Singh Manki(deceased), Hari Nath Manki(deceased), Chinta Mani Manki, Karam Singh Manki(PW-2), Hemraj Manki (PW-4), Mangra Mahto and others co-sharers of village Jiki, were ploughing land in the Chiribera in eastern side of the village Jiki. At about 10.00 A.M., all of a sudden accused persons Sidhu Pahan, Lakhan Singh Pahan, Sadhu Pahan, Karam Singh Munda s/o Baju Munda, Karan Singh Munda S/o Sahdeo Munda, Joseph Pahan, Budhua Munda, Matius Munda, Niral Pahan, Patar Pahan, Rida Pahan, Etwa Pahan, Joura Munda, Mahadeo Munda and 5 to 6 other accused persons, all resident of village Soley, came armed with lathi, balua, farsa, tangi and bow and arrow.
Sidhu Pahan and Lakhan Pahan said that field belonged to them then why they are ploughing field and said they will kill them. In the meantime, Sidhu Pahan and Lakhan Pahan started assaulting Mangal Singh Manki(deceased) with farsa which they were holding in their hand as a result Mangal Manki fell there. Thereafter, Karam Singh Munda S/o Baju Munds, Sadhu Pahan and Budhua Munda started assaulting Hari Nath Manki with farsa which they were holding in their hands as a result Hari Nath Manki fell there. Etwa Munda, Joura Munda, Patar Pahan, Matius Munda assaulted Hemraj Singh Manki and Chintamani with tangi and lathi and injured them. Other accused persons also started assaulting with lathi and bow and arrow, then informant and others flew away from there to save themselves. The accused persons after committing the assault, stayed there for half an hour and thereafter went to their village Soley. Then, the informant and others villagers of Jiki village came on the place of occurrence and found Hari Nath Manki and Mangal Singh Manki, dead and Hemraj Manki and Chintamani were lying in injured condition.
On the basis of the aforesaid fardbeyan, the police registered Khunti P. S. Case No.8/91 under Sections 147, 148, 149, 324, 307 & 302 of the I.P.C. After completion of investigation, the investigating officer submitted charge-sheet against the accused persons. The cognizance of offence was taken against the accused persons and case was committed to the court of sessions.
Charges were framed against the accused persons/appellants herein, under Sections 148 and 302/149 of the Indian Penal Code. Further, separate charge was framed under section 307/34 of IPC against the accused persons Patar Pahan, Joura Pahan and Matius Munda and the same was read over and explained to them in Hindi upon which they pleaded not to be guilty and demanded for trial.
It is relevant to mention that Chintamani Manki, who was injured, was treated in hospital and subsequently Chintamani also succumbed to the said injuries.
Trial commenced and prosecution had examined eight witnesses. Besides the oral evidence, the prosecution has also brought some documentary evidence on the record they are-Ext.1 signature of the informant in the fardbeyan, Ext. 1/1 Seizure list, Ext. 1/2 Seizure list, Ext. 1/3 to 1/6 signatures on the inquest reports, Ext. 2 to 2/1 Post Mortem report, Ext. 3 to 3/1 injury reports, Ext. 4 formal F.I.R., Ext. 5 Fardbayan, Ext.6 Seizure list and Ext. 7 to 7/1 inquest reports.
The Defence has not examined any witness in support of their case.
The learned trial court, on appreciation of the evidences produced on behalf of the prosecution, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction and order of sentence which is impugned in this appeal.
Argument advanced on behalf of the appellants
Learned counsel for the appellants has submitted that the impugned Judgment of conviction and order of sentence passed by the learned trial court cannot be sustained in the eyes of law for the following reasons: -
The judgment of conviction and order of sentence passed by the learned court is contrary to law and against the facts of this case.
The learned trial court has failed to take into consideration that there is vital contradiction in the evidence of the witnesses who have been examined in this case;
The learned trial court has failed to appreciate that no incriminating articles were recovered from the possession of these appellants.
The learned trial court has not considered the statement of the appellants recorded under Section 313 Cr.P.C.
It has been submitted that non-examination of material witnesses and non-explanation of it cuts at the root of the prosecution case and non-examination of such material witnesses are fatal. The prosecution has not examined the investigating officer, which prejudiced the case of defence for his non-examination and as such it is also fatal to the prosecution.
The learned trial court has failed to take into consideration that the prosecution has miserably failed to bring home the charges against the appellants beyond all reasonable doubts.
It has been argued that the appellants are entitled to benefit of doubt and are entitled to acquittal.
The judgment of conviction and sentence passed by the learned court below is otherwise bad in law and is fit to be set aside;
The learned counsel for the appellants, based upon the aforesaid ground, has submitted that the trial court has not taken into consideration of the aforesaid facts as such impugned judgment requires interference, hence not sustainable in the eyes of law.
Argument advanced by the learned counsel for the State
While defending the judgment of conviction learned counsel appearing for the State raised the following arguments in response to the grounds as referred hereinabove -
The learned trial Court, has convicted the appellants on the testimony of the injured witnesses Hemraj Singh Manki (PW-4) and other eye witnesses PW-1, PW-2 and PW-6.
The prosecution witnesses, i.e., PW-1, PW-2, PW-4, and PW-6 have remained consistent on the date, time and place of occurrence.
PW-7 Dr. S.K. Sandliya, has also proved the post mortem report of both the deceased Mangal Singh Manki and Hari Nath Manki and he has opined that injury inflicted on the deceased may be caused by sharp cutting object life farsa or balua.
PW-4 is one of the victims of the incident, who himself got injured in the said incident, has fully supported the prosecution case.
The present case is based on direct evidence against the appellants.
The prosecution has successfully proved the charges leveled against the accused persons/appellants, beyond the all shadows of reasonable doubts, hence, order of conviction requires no interference.
Learned counsel appearing for the State, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed.
Analysis
We have heard learned counsel for the parties, gone through the testimonies of the witnesses as available in the LCR including the exhibits as also the finding recorded by the trial court in the impugned judgment.
The prosecution has altogether examined eight witnesses out of whom PW-1 Gobardhan Singh Manki, is the informant of the case; PW-2 Karam Singh Manki; PW-3 Shankar Manki; PW-4 Hamraj Singh Manki; PW-5 Kunu Mahto, PW-6 Kunj Bihari Manki, PW-7 Dr. S.K. Sandilya and PW-8 Banwari Lal Jaiswal.
This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
P.W.1 Gobardhan Singh Manki, is the informant of the case. He has stated in his evidence that occurrence is of 01.02.1991 and on that day he along with Mangal Singh Manki(deceased), Harinath Singh Manki(deceased), Chintamani Manki(deceased), Hemraj Manki, Karam Singh Manki and their servants Mangra, Kunu Mahto, Kunj Bihari Manki and 2 to 4 others had gone to plough their field at Chiribera at about 9-10 a.m., in the morning. When they were ploughing the field, then villagers of Soley namely Sidhu Pahan, Lakhan Pahan, Matias, Joura, Patar and Mahadeo Munda, Sadhu Pahan, Budhua Pahan, Karan Singh Munda (S/o Shahdeo Munda), Karam Singh Munda (son of Baiju Munda), Rida Pahan, Etwa Munda and some others persons armed with farsa, balua, lathi and bow and arrow came there. Lakhan Pahan and Sidhu Pahan assaulted Mangal Singh Manki with farsa. Sadhu Pahan and Budhua Munda, assaulted Hari Nath with farsa and accused Joura, Matius, Patar and Etwa Munda started assaulting Chintamani and Hemraj Manki with tangi. Due to assault Mangal Singh Manki and Harinath Manki died at the place of occurrence itself and Chintamani and Hemraj Manki were badly injured.
Informant further stated that they went to village and informed the villagers. When they returned to the place of occurrence, the accused persons had fled away. His maternal uncle(mama) Nil Mohan Munda, informed at the police station. In the evening Khunti police came and recorded his fardbayan at the place of occurrence and read-over and finding it correct, he put his signature on it and on identification, fardbeyan was marked as Ext.-1. The police had prepared the inquest report of the dead bodies and seized blood stained earth. Both the dead bodies were thereafter sent for post-mortem and injured Chintamani and Hemraj Manki were sent to hospital for their treatment to Khunti Hospital and from there both the aforesaid injured persons were referred to RMCH Ranchi. Chintamani after returning from the hospital died after 8-10 days due to the said injuries. Informant further stated that the field which is the place of occurrence is khatiyani land of the informant. He has identified all the accused persons in the dock.
In his cross-examination informant stated that they have share in the field at Chiribera. They had gone to the field at Chiribera, along with 10-15 persons with 6/7 plough. When they had reached at the field to plough, at that time accused party was not there and they came to the field later. Accused persons came at the place of occurrence at about 10.15 am. Accused Sidhu had come at the place of occurrence along with 20 persons and they had come raising halla, but, they did not flee away immediately, when the accused persons came. Informant further stated that he was not assaulted, he had fled away and stood at a distance of 30-40 cubits away and from there he saw, who assaulted by which weapon. Accused Etwa was armed with tangi and Sidhu and Lakhan, were armed with farsa. Joseph was armed with lathi and Rida was armed with lathi. He had seen that Sidhu had assaulted Mangal Singh Manki, with farsa on his neck, but how much time he had given farsa blow, he had not seen properly. Lakhan had assaulted Mangal Singh Manki, with farsa, on the palm of his right hand, but how much time blow was given he did not remember. He had seen Budhua and Sadhu had assaulted Harinath, on his neck.
P.W. 2 Karam Singh Manki, has stated that the occurrence is of 01.02.1991. On that day he along with Mangal Singh, Gobardhan, Kunj Bihari, Mangra Mahto, Hemraj, Chintamani, Harinath Manki and others were ploughing the land in Chiribera for sowing paddy and for this they had reached there in the morning at 9 am. At about 10-11 a.m. villagers of Soley namely Sidhu Pahan, Lakhan Pahan and others came there armed with farsa, lathi, bow and arrow. Accused Sidhu and Lakhan Pahan surrounded Mangal Singh Manki,and assaulted him with farsa and Mangal Singh Manki fell down at the spot itself. Sadhu Pahan, Budhwa and Karam Singh surrounded Harinath Manki and assaulted him with farsa and Harinath Manki, fell down at the spot. Joura Pahan, Patar Pahan, Matius Pahan and Etwa assaulted Hemraj Manki and Chintamani Manki with Tangi and injured them. Niral Munda was holding bow and arrow, Rida Pahan, Mahadeo, Karan Singh Munda, Joseph Pahan were holding lathi and they were also assaulting. After assault accused persons fled away. They fled away and went to the village and informed the villagers and when returned back found Harinath and Mangal Singh Manki died and Chintamani and Hemraj Manki injured. Khunti Police came and prepared the inquest report of both the bodies on which he and Shankar Manki (P.W.3) put their signatures and the same has been marked as Ext 1/3 to 1/6. Thereafter the police sent the dead bodies and the injured to Khunti hospital, from where the injured were sent to R.M.C.H. Ranchi. Subsequently Chintanani died.
PW-2 in his cross-examination, had stated that on the day of occurrence they were 10-15 persons, who were digging and ploughing the field. Accused persons had arrived on the field at 10-11a.m. and had surrounded them silently and when accused persons came, then, they did not flee away. He was not assaulted by any accused persons. He had seen Sidhu and Lakhan, were assaulting Mangal Singh Manki with farsa. Sadhu, Karam Singh(young) and Budhua had assaulted Harinath Manki.
P.W.3 Shankar Manki, is an inquest report witness and he is son of one of the deceased Chintamani Manki. He has stated in his evidence that his father was murdered in the field named Chiribera. He had gone to the place of occurrence and their police came and had prepared the papers of the body of both the deceased Mangal Singh and Harinath Manki and he had signed on it. On identification his signature on the inquest report as marked as Ext.-1/4 and Ext.-1/5.
P.W.4 Hemraj Singh Manki, has stated in his evidence that on 01.02.1991, at about 9 a.m., he had gone to field at Chiribera, along with Gobardhan Singh Manki (PW-1), Kunj Bihari Manki (PW-6), Mangal Singh Manki(deceased), Chintamani, Karam Singh Manki (PW-2), Mahendra Singh, Kunu Mahto (PW-5) and Budhu Mahto, for ploughing the field, which they had record of right. They were ploughing the field in the meantime, at 10-10.30 a.m., 20 to 22 persons of village Soley namely Lakhan Pahan, Sidhu, Sadhu, Matius, Joura, Patar, Karam Singh ( i.e one son of Baiju Munda and other son of Sahdeo Munda), Budhua, Rida, Etwa, Mahadeo and others whose name he did not recollect came there.
PW-4 further stated that accused Sidu, Lakhan, Sadhu, Budhua, and one Karm Singh were armed with farsa and accused Matius, Patar, Joura and Etwa were armed with tangi. Accused Niral was armed with bow and arrow and others were armed with lathi. Aforesaid accused persons variously armed with weapons surrounded them. Accused Sidhu and Lakhan assaulted with their weapon, to Mangal Singh Manki. Accused Sadhu, Karam Singh and Budhua, with their weapon, assaulted Hari Nath Singh Manki. Patar and Etwa assaulted, with their weapon to Chintamani Singh Manki. Matius assaulted him with tangi on his stomach and rib. Due to assault Harinath Singh Manki and Mangal Singh Manki, died at the spot itself and due to injury, he fled away from the place of occurrence. Subsequently Chintamani also succumbed to the said injuries. Chintamani was firstly taken to Khunti Hospital and from there he was taken to RMCH. Chintamani was treated in RMCH for one month and thereafter, he came home and after 15 days he died. PW-4 further stated that he was taken to Khunti for treatment from Khunti he was sent to Bariyatu and he was treated in the hospital for 15 days.
In his cross-examination, he stated that accused persons is known to him from before. He had gone to the field at about 9 am and other others came to the field after 10-15 minutes. Karam Singh, Budhu, Kanu Mahto, Kunj Bihari were ploughing the field. Accused persons and 20-22 persons came to the field from north side and firstly surrounded Mangal Singh. Mangal Singh was surrounded by accused Sidhu and Lakhan. Patar and Joura had surrounded Chintamani. Seeing the accused persons coming, Mahendra, Karam and Gobardhan, fled away to some distant. Matius had assaulted him on his rib and stomach. Accused persons had firstly assaulted Mangal Singh, then Hari Nath and thereafter to Chintamani and then accused persons had assaulted him. He had tried to save Hari Nath.
P.W. 5 Kunu Mahto, has stated in his evidence that on the day of occurrence he along with Gobardhan Manki, at about 10 am had gone to the field at Chiribera, for ploughing the field, which belonged to Gobardhan. In the meantime, accused persons Sidhu, Lakhan, Karan, Sadhu, Matius, Joura, Patar, Karam Singh, Etwa, Budhuwa, Rida,Niral, Joseph, and others came there armed with tangi, farsa, lathi, bow and arrow and surrounded Mangal Singh Manki and started assaulting him and seeing this he left the plough and flee away from there. He saw Sidhu and Lakhan were assaulting Mangal Singh Manki. Later on, he heard that accused persons had killed Hari Nath and had assaulted Chintamani and Hemraj.
PW-6 Kunj Bihari Manki, has stated in his evidence that in 1991, on the date of occurrence at about 10 am, he had gone to plough his land at Chiribera and Gowardhan, Harinath, Mangal Singh, Chintamani, Jagna Munda, Budhu Mahto, Mahendra Manki and Hemraj Manki, had accompanied them and they had also gone to plough the field. When they were ploughing the field, in the meantime the accused persons from village Soley namely Sidhu, Lakhan, sadhu, Budhua, Karam Singh, Matius, Patar, Joura, Joseph, Rida, Mahadeo, Karan Singh and two others, whose name he did not remember, all together 14 accused persons armed with farsa, tangi came there and started assaulting. Sidhu and Lakhan inflicted farsa blows on neck and hand of Mangal Singh Manki. Thereafter, Sadhu, Budhua, Karam Singh (young) armed with farsa assaulted Harinath Manki on his neck. Thereafter, Matius assaulted Hemraj with tangi. Accused Joura, Rida, Mahadeo, Joseph and Karam Singh (old) assaulted Chintamani with farsa. He was at a distance, therefore, he was not assaulted. He fled away from there and returned there after an hour, then, he found Mangal Manki and Harinath Manki, were lying dead and Chintamani, in injured condition was lying senseless. The police were informed. He identified four accused persons who were present in the dock and out of them he identified Sadhu, Matius by name and Lakhan and Sidhu Pahan by face.
In his cross-examination, he stated that out of 14 accused persons, two accused persons have died. He identified Matius, Sadhu, Karan Singh(old), Patar, Joura, by name and remaining accused persons by face all these accused persons are from village Soley. Jagna, Madki, Budhu Mahto and Gandarv Singh, were ploughing the field along with him. He cannot say who was ploughing the share of field belonging to Harinath because Harinath’s field is lower to his field. He was at the field for 2-3 minutes and he fled away due to quarrelling. Occurrence of assault took place on the field which was heigh and that field and occurrence of quarrel and assault was visible, but ploughing was not seen clearly, because ploughing was done at lower portion of land. Chintaman, Harinath, Karam Singh and Mangal were also ploughing the land in lower portion of the field. He further stated that villagers of Soley, did not raise halla and started assaulting. Sadhu, Sidhu and Lakhan were armed with farsa and Matius was armed with tangi and he did not see who was armed with which weapon because, he had fled away. He cannot say which accused person assaulted, how many times.
P.W.-7 Dr. S. K. Sandilya, had conducted post mortem on the dead body of the deceased Harinath Manki and Mangal Singh Manki.
P.W.-7 Dr. S. K. Sandilya, had deposed that on 02.02.1991 at 11 am, he conducted postmortem on the dead body of Harinath Manki and found following injuries-
i.Incised injury over right side of neck extending from 3rd survical vertebra upto the angle of right lips cutting all underlying structures traclua, esophagus, vessels and madible size 5’’x3’’x3 ½”
ii.Incised injury 1½” superficial over tip of right shoulder.
Doctor stated that cause of death of Harinath Manki was injury no. (i), itself which was sufficient to cause death in ordinary course of nature. The injuries were ante-mortem caused by sharp cutting weapon may be farsa or balua. Postmortem report of Harinath Manki, was marked as Ext.-2.
P.W.-7 Dr. S. K. Sandilya, had deposed that on 02.02.1991 at 12.15 pm, he conducted postmortem on the dead body of Mangal Singh Manki and found following injuries-
i.Incised injury over neck size 4’’x2’’x3½”. Neck was only attached with skin over the back cutting all underlying structure, vessels and third cervical bone and spinal cord.
ii.Incised injury over lip tip 4’’x1’’x½”’’ cutting all underlying structures.
iii.Incised injury on left hand. Left hand completely amputated from the wrist.
iv.Incised injury over right deltoid vessels size 1’’x½”x½”
Doctor stated that cause of death of Mangal Singh Manki, was injury no. (i) itself, which was sufficiently cause death in ordinary course of nature. All the injuries were ante mortem in nature caused by sharp cutting weapon may be farsa or balua. Time since death was 24 hours and within 48 hours as rigor mortis was present on the body. Postmortem report of Mangal Singh Manki, was marked as Ext.-2/1.
P.W.-7 Dr. S. K. Sandilya, further deposed that on 02.02.1991, he had examined Hemraj Singh Manki and found following injuries on his person-
i.Incised injury over left lateral side of chest 1’’x½”’’x1/3’’
ii.Incised injury over G.P. Sternum ½’’x ½”x 1/3’’
iii.Abrasion over left palm
Doctor opined that injuries were simple in nature and injury no.(i) and injury (ii), were caused by sharp cutting weapon may be balua and injury no.(iii) by hard and blunt substance may be lathi.Injury report of Hemraj Singh Manki, was marked as Ext.-3.
P.W.-7 Dr. S. K. Sandilya, further deposed that on 02.02.1991, he had examined Chintamani Manki and found following injuries on his person-
i.Incised injury over left side of scalp 2½””x½’’x1/3”
Incised injury over second thoracic vertebra over back 2”x1½”x1”
Doctor opined that injuries were caused to Chintamani Manki was caused by sharp cutting weapon may be farsa and balua and injury no. (ii) was not simple in nature. Doctor deposed that Chintamani Manki was referred to RMCH for trearment. Injury report of Chintamani Manki, was marked as Ext.-3/1.
PW-8 Banwari Lal Jaiswal, is an Advocate Clerk, formal witness. He had Proved the Formal FIR, fardbeyan, seizure list of blood earthen soil, and two inquest report which were marked as Ext.-4, Ext.-5, Ext.-6, Ext.-6 and Ext.-7/1 respectively.
This Court, on the basis of the aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of the impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court:
Whether PW-4 (injured witness), PW-1, PW-2 and PW-6 are eyewitnesses to the murder of Mangal Singh Manki and Hari Nath Manki and to the injuries inflicted on Hemraj Singh Manki (PW-4) and Chintamani, on the basis of their respective testimonies?
Whether the material as has come in course of trial is sufficient to prove the charge under section 307/34 of the Indian Penal Code against the surviving appellant Joura Pahan?
Whether the material, as has come in course of trial, is sufficient to attract the ingredients of offence committed under Sections 302/149 and 148 of the Indian Penal Code against the appellants?
Before delving into the issue, it is pertinent to mention that in the present case two accused persons have almost similar name, who are Karam Singh Munda and Karan Singh Munda. But, from the impugned judgment and memo of appeal, this Court finds that Karam Singh Munda is 36 years of age and his father is Late Baiju Munda. Further, Karan Singh Munda is 75 years of age and his father is Sahdeo Munda.
In the present case 13 accused persons had filed the appeal, but, during the pendency of appeal 7 accused persons died, as has been discussed in the preceding paragraph. Hence, innocence or guilt of remaining 6 accused persons, who are appellants herein, will be decided in the subsequent paragraphs.
Re : issue no.(i)
This issue is whether PW-4 (injured witness), PW-1, PW-2 and PW-6 are eyewitnesses to the murder of Mangal Singh Manki and Hari Nath Manki and to the injuries inflicted on Hemraj Singh Manki (PW-4) and Chintamani, on the basis of their respective testimonies?
Learned trial court on the basis of evidence of the prosecution witnesses came to the conclusion that accused persons/ appellants herein, had come to the place of occurrence variously armed with weapons forming an unlawful assembly and surrounded the victim party and started assaulting them which resulted in death of Mangal Singh Manki and Hari Nath Manki, at the spot itself and Hemraj Manki and Chintamani Manki were injured and subsequently injured Chintamani Manki , also died due to the said injuries.
In the present case, apart from Hamraj Singh Manki (PW-4), who is injured witness, informant Gobardhan Singh Manki (PW-1), Karam Singh Manki(PW-2), and Kunj Bihari Manki(PW-6), are the eye witness to the alleged occurrence of killing of Mangal Singh Manki and Hari Nath Manki and these witnesses are also eye witnesses to the injuries inflicted upon Hamraj Singh Manki (PW-4) and Chintamani Manki.
At this juncture, this court think it apposite to refer to certain authorities pertaining to evidentiary value of the injured eye witness.
The law is well settled that the judgment of conviction can be passed on the basis of the evidence of injured witnesses which has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly, as per the judgment rendered by Hon'ble Apex Court in the case of State of M.P. v. Mansingh, (2003) 10 SCC 414. Relevant paragraph of the said judgment is being referred hereunder as :- .
“The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses PWs 4 and 7. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential. It is fairly conceded by the learned counsel for the accused that though mere non-mention of the assailants’ names in the requisition memo of injury is not sufficient to discard the prosecution version in entirety, according to him it is a doubtful circumstance and forms a vital link to determine whether the prosecution version is credible. It is a settled position in law that omission to mention the name of the assailants in the requisition memo perforce does not render the prosecution version brittle.”
Likewise, in case of Neeraj Sharma v. State of Chhattisgarh, (2024) 3 SCC 125, at paragraph-22 of the judgment Hon’ble Apex Court held as follow-
“22.The importance of injured witness in a criminal trial cannot be overstated. Unless there are compelling circumstances or evidence placed by the defence to doubt such a witness, this has to be accepted as extremely valuable evidence in a criminal trial.”
Further, in case of Birbal Nath v. State of Rajasthan, (2024) 15 SCC 190, Hon'ble Apex Court reiterated that the statement of an injured eyewitness is an important piece of evidence which cannot be easily discarded by a court. Minor discrepancies do not matter. Paragraph-31 of the said judgment is quoted herein below-
“31.The High Court has gone wrong in its appreciation of the case, both on facts as well as on law. The statement of an injured eyewitness is an important piece of evidence which cannot be easily discarded by a court. Minor discrepancies do not matter. In State of M.P. v. Mansingh5 where conviction of the accused by the trial court, inter alia, under Section 302, was set aside by the High Court on the so-called discrepancies of an injured witness this Court while allowing the State’s appeal against the acquittal said this: (SCC p. 419, para 9)
“9.The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. Merely because there was no mention of a knife in the first information report, that does not wash away the effect of the evidence tendered by the injured witnesses, PWs 4 and 7. Minor discrepancies do not corrode the credibility of otherwise acceptable evidence. The circumstances highlighted by the High Court to attach vulnerability to the evidence of the injured witnesses are clearly inconsequential.”
Further, the Hon'ble Apex Court in the case of Balu Sudam Khalde v. State of Maharashtra, (2023) 13 SCC 365, has laid down certain legal principles, which the Courts are required to keep in mind while appreciating the evidence of an injured eyewitness. Paragraphs 26 to 27 of the said judgment are being referred hereunder as-
“26.When the evidence of an injured eyewitness is to be appreciated, the undernoted legal principles enunciated by the courts are required to be kept in mind:
26.1.The presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
26.2.Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
26.3.The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
26.4.The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
26.5.If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
26.6.The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27.In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence.”
Thus, from the aforesaid mentioned judgments, it is evident that the evidence of injured witness has greater evidentiary value and has to be accepted as extremely valuable evidence in a criminal trial. The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
Re-adverting to the present case, this Court shall first analyse the evidence of Hamraj Singh Manki (PW-4), who is stated to have sustained injuries during the occurrence and is, therefore, projected by the prosecution as an injured eyewitness.
Hamraj Singh Manki (PW-4), has stated in his evidence that on 01.02.1991, at about 9 a.m., he had gone to field at Chiribera, along with Gobardhan Singh Manki(PW-1), Kunj Bihari Manki(PW-6), Mangal Singh Manki(deceased), Chintamani, Karam Singh Manki(PW-2), Mahendra Singh, Kunu Mahto (PW-5) and Budhu Mahto, for ploughing the field, which they had record of right. They were ploughing the field in the meantime, at 10-10.30 a.m., 20 to 22 persons of village Soley namely Lakhan Pahan, Sidhu, Sadhu, Matius, Joura, Patar, Karam Singh (i.e one son of Baiju Munda and and other son of Sahdeo Munda), Budhua, Rida, Etwa, Mahadeo and others whose name he did not recollect came there. Accused Sidu, Lakhan, Sadhu Budhua, and one Karm Singh were armed with farsa and accused Matius, Patar, Joura and Etwa were armed with tangi. Accused Niral was armed with bow and arrow and others were armed with lathi.
PW-4 further stated that aforesaid accused persons variously armed with weapons surrounded them. Accused Sidhu and Lakhan assaulted with their weapon (i.e. farsa), to Mangal Singh Manki. Accused Sadhu, Karam Singh, and Budhua, with their weapon (i.e. farsa), assaulted Hari Nath Singh Manki. Patar and Etwa assaulted, with their weapon to Chintamani Singh Manki. Matius assaulted him with tangi on his stomach and rib. Due to assault Harinath Singh Manki and Mangal Singh Manki, died at the spot itself and due to injury, he fled away from the place of occurrence. Subsequently Chintamani also succumbed to the said injuries.
In his cross-examination, PW-4 stated that accused persons is known to him from before. He had gone to the field at about 9 am and other others came to the field after 10-15 minutes. Karam Singh, Budhu, Kanu Mahto, Kunj Bihari were ploughing the field. Accused persons and 20-22 persons came to the field from north side and firstly surrounded Mangal Singh. Mangal Singh was surrounded by accused Sidhu and Lakhan. Patar and Joura had surrounded Chintamani. Seeing the accused persons coming Mahendra, Karam and Gobardhan, fled away to some distant. Matius had assaulted him on his rib and stomach. Accused persons had firstly assaulted Mangal Singh, then Hari Nath and thereafter to Chintamani and then accused persons had assaulted him. He had tried to save Hari Nath.
Hence, in his testimony Hemraj Singh Manki (PW-4), has deposed that on the day of occurrence at about on 01.02.1991, he along with the other informant side had gone to plough field at Chiribera and were ploughing their field. At 10-10.30 a.m., 20 to 22 persons of village Soley came at the field and they were variously armed with weapons such as farsa, tangi, lathi, bob and arrow etc. and surrounded the informant party. Accused Sidhu (appellant herein) and Lakhan assaulted with farsa to Mangal Singh Manki(deceased) and accused Sadhu, Karam Singh, and Budhua (appellant herein), assaulted Hari Nath Singh Manki(deceased), with farsa as a result Mangal Singh Manki and Hari Nath Singh Manki, died at the place of occurrence itself. Accused Patar and Etwa assaulted, with tangi to Chintamani Singh Manki(deceased) as a result Chintamani Singh Manki sustained injury and he was treated in hospital, but, subsequently Chintamani succumbed to the said injuries.
Hamraj Singh Manki (PW-4) deposed that he was assaulted by Matius with tangi on his stomach and rib.
The injury sustained by Hamraj Singh Manki (PW-4), is supported by the medical evidence of the Dr. S. K. Sandilya (PW-7), who had examined Hamraj Singh Manki on 02.02.1991. Doctor had found (i) incised injury over left lateral side of chest 1’’x½”x1/3’’,(ii) incised injury over G.P. Sternum ½’’x ½”x1/3’’and (iii) Abrasion over left palm. Doctor opined that injuries were simple in nature and injury no.(i) and injury (ii), were caused by sharp cutting weapon may be balua.
Hon’ble Apex Court in Balu Sudam Khalde v. State of Maharashtra(supra), had laid down the legal principles, which the courts are required to keep in mind while appreciating the evidence of an injured eyewitness and at paragraph-26.1 had laid down that the presence of an injured eyewitness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
Hence, from the ocular evidence of Hamraj Singh Manki (PW-4) and medical evidence of Doctor (PW-7), wherein Doctor had found injury on the body of PW-4 viz Injury report Ext.-2, this Court comes to the conclusion that injured Hamraj Singh Manki (PW-4), was present at the time and place of occurrence and had witnessed the assault by the accused persons/appellants, on Mangal Singh Manki(deceased), Hari Nath Singh Manki(deceased), in which both Mangal Singh Manki(deceased) and Hari Nath Singh Manki(deceased), died at the place of occurrence itself and in the assault Chintamani Singh Manki and he was injured.
Now, this Court is proceeding examine the ocular evidence of informant Gobardhan Singh Manki (PW-1), Karam Singh Manki(PW-2) and Kunj Bihari Manki(PW-6),
Informant Gobardhan Singh Manki (PW-1),in his examination-in-chief had stated that on 01.02.1991, he along with Mangal Singh Manki(deceased), Harinath Singh Manki(deceased), Chintamani Manki, Hemraj Manki, Karam Singh Manki and their servants Mangra, Kunu Mahto, Kunj Bihari Manki and 2 to 4 others had gone to plough their field at Chiribera at about 9-10 a.m., in the morning. When they were ploughing the field, then accused persons, who belonged to village Soley came there armed with farsa, balua, lathi and bow and arrow.
Informant further stated that he was not assaulted, he had fled away and stood at a distance of 30-40 cubits away and from there he saw, Lakhan Pahan and Sidhu Pahan (appellant herein) assaulted Mangal Singh Manki with farsa and Sadhu Pahan and Budhua Munda (appellant herein), assaulted Hari Nath with farsa and accused Joura (appellant herein), Matius, Patar and Etwa Munda started assaulting Chintamani and Hemraj Manki with tangi. Due to assault Mangal Singh Manki and Harinath Manki died at the place of occurrence itself and Chintamani and Hemraj Manki were badly injured.
Informant in his cross-examination also, testified that he had seen Sidhu and Budhua had assaulted Mangal Singh Manki and Harinath, with farsa on his neck.
Hence, from the ocular evidence of the informant (PW-1), this court finds that when the accused persons/appellants came at the place of occurrence armed with farsa, balua, lathi and bow and arrow, then, he had fled away and stood at a distance of 30-40 cubits away and from there he saw, the occurrence of murder of Mangal Singh Manki and Hari Nath Harinath Manki, who died at the spot and injuries inflicted upon Hemraj Manki(PW-4) and Chintamani.
So, informant (PW-1) from a distance of 30-40 cubits had seen the murder of Mangal Singh Manki and Hari Nath Manki and he also witnessed to the injuries inflicted on Hemraj Singh Manki (PW-4) and Chintamani.
Likewise, Karam Singh Manki (PW-2) and Kunj Bihari Manki (PW-6), have also testified that on the day of occurrence they had gone to plough field at Chiribera, then, accused persons/appellants, who were resident of village Soley, came at the field armed with farsa, lathi, bow and arrow. Both PW-2 and PW-6 have deposed that accused Sidhu and Lakhan Pahan surrounded Mangal Singh Manki, with farsa and Sadhu Pahan, Budhwa and Karam Singh surrounded Harinath Manki and assaulted him with farsa, as a result both Mangal Singh Manki and Harinath Manki died at the spot.
Further, PW-2 had deposed that Joura Pahan, Patar Pahan, Matius Pahan and Etwa had assaulted Hemraj Manki(PW-4) and Chintamani Manki with Tangi and injured them.
Hence, from the forgoing discussion, this Court comes to the conclusion from the testimony of injured Hemraj Singh Manki(PW-4), PW-1(informant) and PW-2 and PW-6, that they are the eyewitnesses to the murder of Mangal Singh Manki and Hari Nath Manki and the injuries inflicted on Hemraj Singh Manki (PW-4) and Chintamani.
Accordingly, issue no.(i), has been answered.
Re: issue no.(ii)
The second issue is whether the material as has come in course of trial is sufficient to prove the charge under section 307/34 of the Indian Penal Code against the surviving appellant Joura Pahan?
Regarding this issue, this court finds that separate charge was framed against the accused persons Patar Pahan, Joura Pahan and Matius Munda under section 307/34 of IPC for intentionally assaulting Hemraj Singh Manki (PW-4) and Chintamani Manki.
The learned Trial Court had convicted Patar pahan, Joura Pahan and Matius Munda under Section 307/34 of IPC. But, during the pendency of appeal, the appellant Patar pahan, and Matius Munda, died and hence, their appeal was abated.
Hence, the question of the guilt or innocence of the surviving appellant Joura Pahan, remains for determination with regard to his conviction under Section 307 read with Section 34 of the Indian Penal Code.
This Court finds that the testimonies of PW-1 and PW-2 consistently establish that the appellant, Joura Pahan, was one of the assailants who inflicted injuries upon Chintamani Manki by tangi.
The ocular evidence as to assault and injury sustained by Chintamani Manki, is supported by the medical evidence of Dr. S. K. Sandilya (PW-7), who had examined the injured Chintamani Manki. Dr. S. K. Sandilya (PW-7), had found two injuries on the body of Chintamani Manki-(i) Incised injury over left side of scalp 2½”x½”x1/3” and (ii) Incised injury over second thoracic vertebra over back 2”x1½”x1”.
Doctor opined that injuries were caused to Chintamani Manki was caused by sharp cutting weapon may be farsa and balua and injury no. (ii) was not simple in nature. Doctor deposed that Chintamani Manki was referred to RMCH for trearment.
Hence, this Court finds that the ocular account furnished by PW-1 and PW-2 with respect to the assault upon Chintamani Manki is fully supported by the medical evidence on record, the injury report -Ext.-3/1.
Hence, this Court holds that the prosecution has established the charge against the appellant under Section 307 read with Section 34 IPC beyond reasonable doubt, against the appellant Joura Pahan.
Accordingly, issue no.(ii) has been answered.
Re: Issue no.(iii)
This issue is whether the material, as has come in course of trial, is sufficient to attract the ingredients of offence committed under Sections 302/149 and 148 of the Indian Penal Code against the appellants?
In the present case learned trial court had convicted the accused/appellants on the charge that these accused persons were member of an unlawful assembly and they were armed with deadly weapon and in prosecution of common object committed murder of Mangal Singh Manki and Harinath Singh Manki.
At this juncture it is necessary, therefore, to examine the provisions of Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code is to be found in Chapter VIII of that Code which reads as under:-
"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."
Further, a plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly "knew that the same is likely to be committed in prosecution of the common object of the assembly".
The Hon'ble Apex Court has exclusively dealt with application of ingredients of Section 149 in the case of Ramachandran vs. State of Kerala, (2011) 9 SCC 257 and has observed at Paragraph Nos.17 to 27 as under:-
"17.Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
18.For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
19.In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Vide Bhanwar Singh v. State of M.P.) Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression "know" does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated.
20.However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
21.The crucial question for determination 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 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.
22.In K.M. Ravi v. State of Karnataka this Court observed that mere presence or association with other members alone does not per se become sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
23.Similarly, in State of U.P. v. Kishanpal this Court held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object or such as the members of the assembly knew were likely to be committed.
24.In Amerika Rai v. State of Bihar this Court opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
25.Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P. are very relevant: (SCC pp. 209-10, para 13) "13. ... 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. ... 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 has 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."
26.In Bhanwar Singh v. State of M.P. this Court held: (SCC p.674, para 44) "44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc.
27.Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident.
Further, in the case of Subal Ghorai Vs. State of W.B., (2013) 4 SCC 607, the Hon'ble Supreme Court at Paragraph Nos. 42 to 47 and 50 to 53 has observed as under:-
"42.We must now deal with the submission that all the accused cannot be convicted for murder with the aid of Section 149 IPC because the prosecution story that all the accused were armed with weapons and they attacked the deceased is based on omnibus statements of the eyewitnesses. In order to deal with this submission, we have reproduced the material portions of the evidence of the eyewitnesses. It is now necessary to refer to the judgments of this Court which have been relied upon by the counsel on this point so that the evidence of the witnesses can be examined in their light.
43.In Lalji this Court observed that Section 149 IPC makes every person who is the member of an unlawful assembly at the time of committing of the offence guilty of that offence. It creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of this assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section, the question that he did nothing with his own hands, would be immaterial, because everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined and it is not necessary that all the persons forming an unlawful assembly must do some overt act.
44.It was further observed in Lalji case that: (SCC p. 442, para 10)
"10.... once the court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence."---
45.On the facts of the case before it, this Court held that after having held that: (Lalji case, SCC p. 442, para 11) "11. ... the appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence ... it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of Section 149 IPC, the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by Section 149 IPC."
46.In Sherey 25 appellants were tried for offences punishable under Sections 147, 148, 302, 307, 323 and 325 all read with Section 149 IPC in respect of an incident of rioting. The rioting occurred because of the dispute over a grove between Hindus and Muslims. Twenty-five Muslims attacked Hindus. Three Hindus died. Six eyewitnesses deposed about the incident. PW 1 complainant gave a detailed version and attributed overt acts to nine accused. In deposition, he named five more persons who also attacked the deceased. Regarding the others, he mentioned in an omnibus way that they were armed with lathis. He did not attribute any overt act to any one of them. This Court observed that in the circumstances, it was difficult to accept the prosecution case that the other appellants were members of the unlawful assembly with the object of committing the offences with which they were charged. This Court expressed that it was highly unsafe to apply Section 149 IPC and make everyone of them constructively liable. This Court further observed that 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. Some reasonable circumstance must be found out to lend assurance. It was further observed that from that point of view it was safe only to convict the nine accused whose presence was not only consistently mentioned from the stage of FIR but also to whom overt acts were attributed. This Court concluded that the fact that they were armed with weapons and attacked the victims shows that they were members of an unlawful assembly with the common object of committing murder and other offences with which they were charged.
47.In Thakkidiram Reddy the case of the prosecution was that the 21 accused in the dead of night formed themselves into an unlawful assembly armed with weapons and went to the house of the deceased. They attacked the inmates of the house of one Gankidi Reddy in which Gankidi Reddy lost his life. The accused, thereafter, left the place. The trial court acquitted 10 of them and convicted A-1 to A-11, inter alia, under Section 148 and Section 302 read with Section 149 IPC. In the appeal, the High Court set aside the convictions of A-2 to A-11 under Sections 148 and 302 read with Section 149 IPC and maintained all other convictions. The State carried an appeal to this Court. This Court referred to its previous judgments in Masalti v. State of U.P. and Lalji and observed (Thakkidiram Reddy case, SCC p. 562, para 17) that from these judgments, "it is evident that to ascertain whether a particular person shared the common object of the unlawful assembly, it is not essential to prove that he committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object. Once it is demonstrated from all the facts and circumstances of a given case that he shared the common object of the unlawful assembly in furtherance of which some offence was committed--or he knew was likely to be committed--by any other person, he would be guilty of that offence". This Court further observed that undoubtedly, commission of an overt act by such a person would be one of the tests to prove that he shared the common object, but it is not the sole test. This Court rejected the submission that some of the accused had caused simple injuries and, hence, they did not share common object to murder and observed that the manner in which the incident took place clearly proved that even if this Court were to assume that those accused did not share the common object of committing the murder, they, being members of the unlawful assembly certainly knew that the murder was likely to be committed by A-1 in prosecution of the common object so as to make them liable under Section 302 read with the second part of Section 149 IPC. In the circumstances, order of acquittal of A- 2 to A-5 and A-9 of the charges under Sections 148 and 302 read with Section 149 IPC recorded by the High Court was set aside and the order of the trial court convicting them for the said offences was restored.
50.In Pandurang Chandrakant Mhatre, after adverting to relevant judgments, this Court observed: (SCC p. 797, para 72)
"72.... that for determination of common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is the object of the unlawful assembly is a question of fact and that has 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."
51.In Waman this Court held that: (SCC p. 307, para 40)
"40.... whenever the court convicts any person or persons of any offence with the aid of Section 149 IPC, a clear finding regarding the common object of the assembly must be given and the evidence disclosed must show not only the nature of the common object but also that the object was unlawful. In order to attract Section 149 IPC it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly."
In that case, there was no recovery of weapon from A-12 therein, but weapons were recovered from other accused and prosecution witnesses asserted that A-12 therein dealt a blow of iron pipe on the deceased. This Court held that this was sufficient to attract Section 149 IPC.
52.The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53.But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
In the background of the aforesaid settled legal proposition of law, this Court is now adverting to the facts of the case to decide the aforesaid issue and culpability of the surviving appellants in alleged murder of Mangal Singh Manki and Hari Nath Manki.
In the present case, gruesome murder of the two persons by the mob was done and hence, motive behind the occurrence has to be seen. However, this Court is conscious with the settled position of law that motive is not pre-requisite for commission of crime but in the instant case, since, the common object has been alleged, hence, it needs to establish motive behind the alleged occurrence in order to establish the common object.
From the fardbeyan of informant and the evidence of prosecution witnesses this court finds that motive behind the occurrence is land dispute. In the evidence it has come that there is a land at Chiribera measuring 4.91 acre and both informant side and accused persons, who belongs to village Soley, have claim over this land, which ultimately resulted in murder of Mangal Singh Manki and Hari Nath Manki and injury to Hemraj Singh Manki (PW-4) and Chitamani. But, later on Chintamani also succumbed to his injuries after his release from hospital after some days.
Now, re-adverting to the fact of the present case, regarding appellant no.5 Sidhu Pahan, this Court finds that PW-1(informant), PW-2, PW-4 and PW-6 have consistently deposed that appellant Sidhu Pahan had assaulted Mangal Singh Manki (deceasd) with farsa, as a result Mangal Singh Manki, died on the spot.
Again, regarding appellant no.1 Karam Singh Munda (age 36 years,S/o Late Baiju Munda) and appellant no. 3 Budhua Munda, this Court finds that witnesses PW-2, PW-4 and PW-6 have consistently deposed these two appellants had inflicted farsa blow on Hari Nath Manki(deceased) as a result Hari Nath Manki, had died on the spot. Here, it is pertinent to note that PW-2 in his cross-examination had specifically deposed that Karam Singh(young) had assaulted Harinath Manki.
The ocular evidence of PW-1(informant), PW-2, PW-4 and PW-6 as to assault by farsa on Mangal Singh Manki(deceased) and Hari Nath Manki(deceased), is supported by the post-mortem examination report of both the deceased persons.
Dr. S. K. Sandilya (PW-7), had conducted postmortem on the dead body of Mangal Singh Manki, and had found following injuries on his body-
i.Incised injury over neck size 4’’x2’’x3½”. Neck was only attached with skin over the back cutting all underlying structure, vessels and third cervical bone and spinal cord.
ii.Incised injury over lip tip 4’’x1’’x1/2’’ cutting all underlying structures.
iii.Incised injury on left hand. Left hand completely amputated from the wrist.
iv.Incised injury over right deltoid vessels size 1’’x1/2’’x1/2’’
Further, Doctor (PW-7), in post-mortem examination of Harinath Manki, had found following injuries on his body-
i.Incised injury over right side of neck extending from 3rd survical vertebra upto the angle of right lips cutting all underlying structures traclua, esophagus vessels and meadible size 5’’x3’’x3½”
ii.Incised injury 1½’’ superficial over tip of right shoulder.
Doctor (PW-7) opined that the injuries inflicted upon both the deceased were ante mortem caused by sharp cutting weapon may be farsa or balua.
Further, regarding appellant no. 2 Rida Pahan, PW-6 had stated that Rida had assaulted Chintamani with farsa.
Again, regarding appellant no. 4 Mahadeo Munda, Hemraj Singh Manki (PW-4), who is an injured witness, had deposed that appellant no. 4 Mahadeo Munda along with others accused persons had arrived at the place of occurrence and Kunj Bihari Manki (PW-6) had deposed that appellant Mahadeo Munda had assaulted Chintamani with farsa.
Here, it is pertinent to note that regarding appellant no.6 Joura Pahan, this Court in issue no. (ii), has already come to the conclusion that the prosecution has established the charge against the appellant Joura Pahan under Section 307 read with Section 34 IPC beyond reasonable doubt.
Thus, from the aforesaid it is evident that the aforesaid accused persons/ appellants herein Karam Singh Munda S/o late Baiju Munda, Rida Pahan, Budhua Munda, Mahadeo Munda, Sidhu Pahan and Joura Pahan, who were member of the said mob and variously armed with weapons such as farsa, tangi, lathi, bow and arrow actively participated in murder of Mangal Singh Manki and Hari Nath Manki and injuring Hemraj Singh Manki (PW-4) and Chintamani, having common object of murder of the deceased persons which took place in the land situated at Chiribera in eastern side of the village Jiki.
Hence, prosecution has proved the charges under section 302/149 of IPC against the appellants Karam Singh Munda S/o Late Baiju Munda, Rida Pahan, Budhua Munda, Mahadeo Munda, Sidhu Pahan and Joura Pahan.
Accordingly, conviction of the appellants under Section 148 of IPC is also sustained and upheld.
Accordingly, Issue No.(iii) has been answered.
Learned counsel for appellants has submitted that Investigating Officer of the case was not examined, hence, prejudice has been caused to the appellants due to non-examination of the Investigating Officer.
In this regard this Court finds that place of occurrence has been testified by the eye witnesses of the case P.W.-1, P.W-2, P.W.-4 and P.W.-6 and all these witnesses have deposed that occurrence of murder of took place at the land situated at Chiribera. Further, in the two inquest reports Ext.-7 and Ext.-7/1, the place where dead bodies of the deceased Hari Nath Manki and Mangal Singh Manki, were found are mentioned as field at Chiribera.
Hence, no prejudice was caused to the appellants due to non-examination of the Investigating Officer, as place of occurrence is unambiguously proved by P.W.-1, P.W-2, P.W.-4 and P.W.-6 and Inquest Reports Ext.-7 and Ext.-7/1.
Conclusion:
Accordingly, impugned judgment of conviction dated 25.07.1998 and order of sentence dated 28.07.1998, passed by learned 1st Additional Judicial Commissioner, Khunti in S.T. No.196 of 1992 arising out of Khunti P.S. Case No. 8 of whereby all the appellants have been convicted under Sections 148 and 302/149 of the Indian Penal Code and have been directed to undergo rigorous imprisonment for life, is hereby sustained and upheld.
Further, the conviction of the appellant Joura Pahan under Section 307/34 of the I.P.C. and sentence of R.I. for 10 years, is also hereby sustained and upheld.
Accordingly, the present appeal is dismissed.
Consequent, upon dismissal of the appeal, appellants Karam Singh Munda S/o Late Baiju Munda, Rida Pahan, Budhua Munda, Mahadeo Munda, Sidhu Pahan and Joura Pahan, since are enjoying the suspension of sentence after order passed by this Court directing to release him during pendency of the appeal, the bail bond of these appellants are hereby cancelled and appellants are directed to surrender before the learned trial court for serving out the sentence passed against him.
Needless to say, that if the appellants will not surrender, the trial Court will take endeavors for securing custody of the appellants to serve out the sentence as inflicted by the learned trial court.
Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
Pending I.A. stands disposed of.