REPORTABLE                           

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 531 OF 2005

Kuldip Yadav & Ors.                                      .... Appellant(s)

Versus

State of Bihar                .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 532 OF 2005

AND

CRIMINAL APPEAL NO. 534 OF 2005

J U D G M E N T P.Sathasivam,J.

1) These appeals are directed against the common judgment  

and  final  order  dated  26.09.2003  passed  by  the  Division  

Bench of the High Court of Patna in Criminal Appeal Nos. 293,  

307, 311 and 371 of 2000 whereby the High Court upheld the  

judgment  and  order  dated  26/27.06.2000  passed  by  the  

Ist Addl. District & Sessions Judge, Nawadah in Sessions Trial  

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No.  333/97/40/97  convicting  the  appellants  herein  for  the  

offence  punishable  under  Section  302  of  the  Indian  Penal  

Code (in short the “IPC”) read with Section 27 of the Arms Act,  

1959,  Section  302  read  with  Section  149  of  the  IPC  and  

Section 324 read with Section 149 of the IPC and maintained  

the sentences imposed upon them.   

2) Brief facts:

(a) The present group of appeals arises out of FIR No. 11 of  

1997 registered at Police Station Govindpur, at the instance of  

one  Naresh  Yadav  (PW-9)  leading  to  Session  Trial  No.  

333/97/40/97 at the Court of Ist Addl. District  & Sessions  

Judge, Nawadah.  

(b) There was a cross FIR No. 12 of 1997 registered at the  

same  Police  Station  at  the  instance  of  one  Sunil  Yadav  

(accused No.9 in FIR No. 11 of 1997) which was lodged at the  

instance of the accused in FIR No. 11 of 1997.   

(c) According to Naresh Yadav (PW-9)-the informant in FIR  

No. 11 of 1997, on 28.04.1997, at 9:00 a.m., all of a sudden,  

Brahamdeo Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,  

Kuldeep Yadav,  Sudhir Yadav, Sunil  Yadav s/o Bale Yadav,  

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Bale  Yadav,  Shiv  Nandan  Yadav,  Sunil  Yadav  s/o  Musafir  

Yadav and Suraj Yadav armed with Saif, Bhala, lathis and gun  

came in a mob where Suresh Yadav- informant’s elder brother,  

since  deceased,  was  getting  his  diesel  machine  repaired  

through  a  mechanic  Mohan  Yadav.   It  was  alleged  that  

accused  Brahamdeo  Yadav  @  Bhonu  Yadav  shot  a  fire  at  

Suresh Yadav in the abdomen and when he went to help him,  

Sunil Yadav gave a saif blow causing injury on his lips.  It was  

also  alleged that  on hearing  alarm Munshi  Yadav,  Ganuari  

Yadav and Bindeshwar Yadav had come and they were also  

subjected to assault by the accused persons.  He also told that  

the victim Suresh Yadav died on the way while being taken to  

the hospital.

(d) On  the  basis  of  the  farde  bayan  of  Naresh  Yadav-the  

informant,  FIR  No.  11/97  was  registered  with  Govindpur  

Police Station under Sections 147, 148, 149, 323, 324, 307  

and 302 IPC against Brahamdeo Yadav, Sunil Yadav s/o Bale  

Yadav,  Darogi  Mahto,  Maho  Yadav,  Paro  Mahto,  Kuldeep  

Yadav,  Sudhir  Yadav,  Bale  Yadav,  Shiv  Nandan Yadav  and  

Suraj Yadav.  Sunil Yadav s/o Musafir Yadav was instituted.  

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On 29.04.1997, S.I. Anil Kumar Gupta recorded the statement  

of Sunil Yadav s/o Musafir Yadav at Nawadah Sadar Hospital  

and  on  the  basis  of  his  statement  FIR  No.  12/97  was  

registered with Govindpur Police Station under Sections 147,  

148,  149,  323,  324,  307  and  447  IPC against  (i)  Upendra  

Yadav (ii) Rambalak Yadav (iii) Basudev Yadav (iv) Anil Yadav  

(v) Ganuari Yadav (vi) Damodar Yadav (vii) Suresh Yadav (viii)  

Umesh  Yadav  (ix)  Muni  Yadav  (x)  Naresh  Yadav  and  (xi)  

Manager  Yadav.   The  investigations  in  both  the  FIRs  were  

taken  by  S.I.  Mohd.  Shibli,  Officer-in-charge  of  Govindpur  

Police Station.  

(e) After  investigation,  charge  sheet  No.  12/97  was  

submitted  in  FIR  No.  11/97  and  charge  sheet  bearing  No.  

36/97 was submitted in FIR No. 12/97 against the accused  

persons and thereafter the case was committed to the Court of  

Sessions  Judge  and  registered  as  Sessions  Trial  No.  

333/97/40/97.  

(f) The prosecution examined ten witnesses in support of its  

claim, namely, Dr. Bipul Kumar, PW-1, Dr. R.K. Bibhuti, PW-

2,  Ganuari  Yadav,  PW-3,  Bindeshwar  Prasad  @  Manager  

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Yadav,  PW-4,  Basudeo  Yadav,  PW-5,  Kesho  Yadav,  PW-6,  

Munshi Yadav, PW-7, Minta Devi, PW-8, Naresh Yadav, PW-9  

and Md. Shibli, Officer-in-Charge, Nawadh PS. PW-10.

(g) After  completion  of  the  trial,  learned  Sessions  Judge  

convicted all  the accused for the offences punishable under  

Sections 302, 324 read with 149 IPC and sentenced them to  

undergo  rigorous  imprisonment  for  life  and  further  

imprisonment of two years.

(h) Aggrieved  by  the  order  passed  by  the  trial  Judge,  the  

accused preferred different sets of appeals, namely, Criminal  

Appeal Nos. 293, 307, 311 and 371 of 2000 before the High  

Court of Patna.  By the impugned judgment and order, after  

accepting the prosecution case, the Division Bench of the High  

Court  upheld  the  judgment  of  the  Sessions  Judge  and  

dismissed all the appeals.  

(i) Aggrieved by the decision of the High Court, Paro Mahto  

(A5),  Kuldip  Yadav  (A6),  Sudhir  Yadav  (A7)  filed  Criminal  

Appeal No. 531 of 2005, Brahamdeo Yadav (A1) filed Criminal  

Appeal No. 532 of 2005 and Darogi Mahto (A2),  Bale Yadav  

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(A8) and Suraj Yadav (A11) filed Criminal Appeal No. 534 of  

2005 before this Court.     

3)   Heard  Mr.  Rajan  K.  Chourasia  learned  counsel  for  the  

appellants in Criminal Appeal Nos. 531 & 534 of 2005, Mr.  

J.P.N  Gupta,  learned  amicus  curiae for  the  appellant  in  

Criminal  Appeal  No.  532/2005  and  Mr.  Manish  Kumar,  

learned counsel for the respondent-State.   

FIR Nos. 11/97 and 12/97  

4) On the basis of the farde bayan of the informant Naresh  

Yadav, F.I.R. No. 11/97 was registered with Govindpur P.S.  

under  Sections  147,  148,  149,  323,  324,  307 and 302 IPC  

against Brahmdeo Yadav, Sunil  Yadav, Darogi  Mahto, Maho  

Yadav, Paro Mahto, Kuldeep Yadav, Sudhir Yadav, Bale Yadav,  

Shiva  Nandan  Yadav  and  Suraj  Yadav.  Sunil  Yadav  was  

instituted.

5) On  29.04.1997,  about  5:30  a.m.,  at  Nawada  Sadar  

Hospital, SI Anil Kumar Gupta recorded the statement of Sunil  

Yadav s/o Musafir Yadav and on the basis of his statement  

FIR  No  12/97  was  registered  with  Govindpur  P.S  under  

Sections  147,  148,  149,  323,  324,  307,  447  IPC  against  

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Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,  

Manager  Yadav,  Ganuari  Yadav,  Damodar  Yadav,  Suresh  

Yadav, Umesh Yadav, Muni Yadav and Naresh Yadav.

6) The  investigation  in  both  FIRs  was  taken  by  SI  Md.  

Shivli,  Officer-in-charge,  Govindpur  Police  Station.   The  

charge-sheet  bearing  no.  12/97  was  submitted  in  FIR  No.  

11/97  P.S.  Govindpur,  on  30.06.1997  against  Brahamdeo  

Yadav, Sunil Yadav, Darogi Mahto, Maho Yadav, Paro Mahto,  

Kuldeep Yadav, Sudhir Yadav, Bale Yadav, Shivan Yadav and  

Suraj Yadav and Sunil Yadav who was later instituted.

7) The charge sheet bearing no. 36/97 was also submitted  

in  FIR  No.  12/97  P.S.  Govindpur,  on  17.12.1997  against  

Upendra Yadav, Rambalak Yadav, Basudev Yadav, Anil Yadav,  

Manager  Yadav,  Ganuari  Yadav,  Damodar  Yadav,  Umesh  

Yadav, Muni Yadav and Naresh Yadav except Suresh Yadav  

s/o Kesho Yadav as he had died.  The cognizance was taken  

by the Court and charge was framed under Section 307 and  

149 IPC.

8) It was highlighted that the prosecution witnesses are not  

certain about the place of death of the deceased Suresh Yadav.  

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At least three eye-witnesses stated, either in their statement  

under Section 164 of the Code of Criminal Procedure, 1973 (in  

short the “Code”) or during their examination under Section  

313 that the deceased died at the spot which is contrary to the  

statement of Naresh Yadav (PW-9) eye-witness who stated that  

he died on the way to hospital and which is consistent with  

the  statement  of  Sunil  Yadav  informant  in  FIR  No  12/97.  

Sunil Yadav stated in his farde bayan that during altercation  

Suresh  Yadav  received  fire-arm  injury  which  was  shot  by  

Upendra Yadav and died.  A perusal  of the documents and  

cross  examination  on  behalf  of  the  accused  persons  

probabilize the version of the accused as set up in FIR No.  

12/97 which culminated into charge sheet No. 36/97 against  

the informant/prosecution party.   

Procedure in respect of cross cases

9) In order to understand the above issue, it  is useful  to  

refer Section 223 (d) of the Code which reads as under:

“223.  What  persons  may  be  charged  jointly.—The  following  persons  may  be  charged  and  tried  together,  namely:-- (a)  xx (b)  xx (c)  xx

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(d)  persons accused of  different offences committed in the  course of the same transaction; (e)  xx (f)  xx (g)  xx”

10)  The above provision has been interpreted by this Court in  

the  following  decisions.  In  Harjinder  Singh vs.  State  of  

Punjab and Ors. (1985) 1 SCC 422, the question before the  

Court  was  whether  under  Section  223  of  the  Code  it  is  

permissible for the Court to club and consolidate the case on a  

police  challan  and  the  case  on  a  complaint  where  the  

prosecution  versions  in  the  police  challan  case  and  the  

complaint  case  are  materially  different,  contradictory  and  

mutually  exclusive.  The  question  was  whether  the  Court  

should in the facts and circumstances of the case direct that  

the two cases should be tried together but not consolidated i.e.  

the evidence be recorded separately  in both cases and they  

may be disposed of simultaneously except to the extent that  

the witnesses for the prosecution which are common to both  

may be examined in one case and their evidence be read as  

evidence in the other.  After analyzing the factual details, this  

Court has concluded:-

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“8. In the facts and circumstances of this particular case  we feel that the proper course to adopt is to direct that the  two  cases  should  be  tried  together  by  the  learned  Additional  Sessions  Judge  but  not  consolidated  i.e.  the  evidence should be recorded separately in both the cases  one after the other except to the extent that the witnesses  for the prosecution who are common to both the cases be  examined  in  one  case and  their  evidence  be  read  as  evidence  in  the  other.  The  learned  Additional  Sessions  Judge  should  after  recording  the  evidence  of  the  prosecution witnesses in one case, withhold his judgment  and then proceed to record the evidence of the prosecution  in  the  other  case.  Thereafter  he  shall  proceed  to  simultaneously  dispose  of  the  cases  by  two  separate  judgments taking care that the judgment in one case is not  based on the evidence recorded in the other case…..”

(underlining supplied)

11)  In  Balbir vs.  State of Haryana & Anr. (2000) 1 SCC  

285, this Court considered clauses (a) and (d) of Section 223 of  

the Code and held that the primary condition is that persons  

should  have  been accused  either  of  the  same offence  or  of  

different  offences  “committed  in  the  course  of  the  same  

transaction”.  The expression advisedly used is “in the course  

of  the  same  transaction”.   That  expression  is  not  akin  to  

saying “in respect of the same subject-matter”.   For several  

offences to be part of the same transaction, the test which has  

to be applied is whether they are so related to one another in  

point of purpose or of cause and effect, or as principal and  

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subsidiary, so as to result in one continuous action.  Thus,  

where  there  is  a  commonality  of  purpose  or  design,  where  

there is a continuity of action, then all those persons involved  

can be accused of the same or different offences “committed in  

the course of the same transaction”.   

12)  In  Lalu Prasad vs.  State thr. CBI (2003) 11 SCC 786,  

this Court held that amalgamation of cases under Section 223  

is discretionary on the part of trial Magistrate and he has to be  

satisfied that persons would not be prejudicially affected and  

that it is expedient to amalgamate cases.   

13)  Regarding the argument based on Section 210(2) of the  

Code, it is useful to refer the decision of this Court reported in  

Pal @ Palla vs. State of U.P. (2010) 10 SCC 123 which reads  

as under:-

“27. Sub-section (2) of Section 210 provides that if a report  is made by the investigating officer under Section 173 and  on such report  cognizance  of  any offence  is  taken by the  Magistrate  against  any  person,  who  is  an  accused  in  a  complaint case, the Magistrate shall inquire into or try the  two cases together, as if both the cases had been instituted  on a police report. Sub-section (3) provides that if the police  report does not relate to any accused in the complaint case,  or if the Magistrate does not take cognizance of any offence  on a police report, he shall proceed with the inquiry or trial  which was stayed by him, in accordance with the provisions  of the Code.

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28. Although  it  will  appear  from  the  above  that  under  Section  210  CrPC,  the  Magistrate  may  try  the  two  cases  arising  out  of  a  police  report  and  a  private  complaint  together,  the  same,  in  our  view,  contemplates  a  situation  where having taken cognizance of an offence in respect of an  accused  in  a  complaint  case,  in  a  separate  police  investigation such a person is again made an accused, then  the Magistrate may inquire into or try together the complaint  case and the case arising out of the police report as if both  the cases were instituted on a police report. That, however,  is  not  the  fact  situation  in  the  instant  case,  since  the  accused are different in the two separate proceedings and  the  situation  has,  in  fact,  arisen  where  prejudice  in  all  possibility  is  likely  to  be caused in a single  trial  where  a  person is both an accused and a witness in view of the two  separate proceedings out of which the trial arises. 30. …..As was observed in  Harjinder Singh case1 clubbing  and consolidating the two cases, one on a police challan and  the other on a complaint, if the prosecution versions in the  two  cases  are  materially  different,  contradictory  and  mutually exclusive, should not be consolidated but should  be tried together with the evidence in the two cases being  recorded  separately,  so  that  both  the  cases  could  be  disposed of simultaneously.”

14)   In the case on hand, we have already noted that the  

investigation was conducted by the same I.O. in respect of the  

incident that took place on 28.04.1997 at Khalihan.  Though  

in  the  cross-case,  that  is,  FIR No.  12/97,  a complaint  was  

made on the next day i.e. on 29.04.1997 at about 5:30 A.M.,  

from  the  materials  available,  both  the  cases  relate  to  the  

incident that took place at 9 A.M. on 28.04.1997 which is also  

clear from the following information.  

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FIR No. 11/97 P.S. GOVINDPUR FIR No. 12/97 P.S.  GOVINDPUR

Informant-Naresh Yadav (PW-9) Informant-Sunil Yadav (A9 in  FIR 11/97)

Chargesheet submitted on 30.06.1997 Charge was framed on 19.03.1999 Date of Judgment of Trial Court: 27.06.2000  

Chargesheet submitted on  17.12.1997

Date of Judgment of Trial  Court: 18.11.2009

                Accused Persons

1. Brahamdeo Yadav @ Bhonu Yadav (Gun) 2. Darogi Mahto (Gun) 3. Maho Yadav (Gun) 4. Sunil Yadav s/o Bale Yadav (Gun) 5. Paro Mahto (Lathi) 6. Kuldip Yadav (Gandassa) 7. Sudhir Yadav (Bhala) 8. Balle Yadav (Gandassa) 9. Sunil Yadav s/o Musafir Yadav (Saif)  

(Informant in FIR No. 12/97) 10. Shivan Yadav (Gandassa) 11. Suraj Yadav (Bhala)

               Accused Persons

1. Upendra Yadav (Pistol) 2. Rambalak Yadav (Gun) 3. Basudev Yadav  

(Gandassa) 4. Anil Yadav (Gandassa) 5. Bindeshwar Yadav @  

Manager Yadav  (Gandassa)

6. Ganori Yadav  (Gandassa)

7. Damodar Yadav (Stick) 8. Suresh Yadav (Stick) 9. Umesh Yadav (Stick) 10. Muni Yadav  

(Gandassa) 11. Naresh Yadav  

(Gandassa)

                      Injury to deceased Suresh

1. An oral lacerated wound of ½” diameter With  inverted  and  charred  margin,  ½”  right to umbilicus of uncertain depth i.e.  wound of entry

       2.  Multiple bruises of size 3” x 2” to 1” x ½”  four  

in number over back right lower chest and               abdomen

Injured Persons 1. PW-3 Ganauri Yadav (A6 in FIR 12/97) 2. PW-4   Bindeshwar  Yadav  @  Manager  

                   Injured Person

1. Brahamdeo Yadav @  Bhonu Yadav (A1 in  FIR 11/97)

2. Sunil Yadav (A9 in FIR  11/97)

3. Musafir Yadav

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Yadav (A5 in FIR 12/97) 3. PW-7 Munshi Yadav (A10 in FIR 12/97) 4. PW-9 Naresh Yadav (A11 in FIR 12/97)

15) In  view  of  the  above  factual  details  coupled  with  the  

statements made by prosecution witnesses and in the light of  

the  principles  enunciated  by  this  Court,  the  Investigating  

Officer ought to have brought to the notice of the trial Judge  

about the two FIRs arising out of the same incident to avoid  

gross injustice to the parties concerned.  

Discrepancies in the prosecution witnesses

16)  Among various witnesses examined by the prosecution, it  

heavily relied on the evidence of Naresh Yadav (PW-9), Ganauri  

Yadav (PW-3), Bindeshwar Yadav (PW-4), Kesho Yadav (PW-6),  

Munshi  Yadav  (PW-7),  Minta  Yadav  (PW-8)  and  Dr.  R.K.  

Bibhuti (PW-2).    

17) First, let us discuss the evidence of Naresh Yadav (PW-9).  

He is the informant and Suresh Yadav- the deceased was his  

brother.  According to him, on Monday, i.e. on 28.04.1997, he  

along  with  Suresh,  Ganauri  Yadav  and  Bindeshwar  Yadav  

were busy in getting the diesel machine repaired.  Brahmdeo  

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Yadav,  Darogi  Mahto,  Sunil  S/o  Bale  Yadav,  Maho  Yadav,  

Kuldeep Yadav, Bale Yadav, Suraj Yadav, Shiv Nandan Yadav,  

Sunil  Yadav  S/o  Musafir  Yadav,  Sudhir  Yadav  and  Paro  

Mahto,  total  11  persons  forming  a  group  came  there  and  

surrounded  them.   Brahmdeo  Yadav,  Sunil  Yadav,  Darogi  

Mahto and Maho Yadav  were  armed with  rifle.  Bale  Yadav,  

Kuldeep  Yadav,  Shiv  Nandan  Yadav  and  Suraj  Yadav  were  

armed with Gandassa.  Sunil Yadav S/o Musafir Yadav was  

having saif in his hand.  Sudhir Yadav was having spear with  

him  and  Paro  Mahto was  having  lathi  in  his  hand.   The  

abovesaid persons surrounded them whereupon they started  

running when Brahmdeo Yadav fired shot from rifle hitting the  

abdomen of Suresh Yadav.   He further deposed that when he  

went to help Suresh to get up, Sunil Yadav (A-4) using his saif  

hit him on his upper lip.  Bale Yadav (A-8) gave a Gandassa  

blow on the neck of  Ganauri  Yadav and while stopping the  

blow with his right  hand,  he sustained injury on his palm.  

Kuldeep Yadav also gave him a Gandassa blow on the right  

hand.  Shiv Nandan and Suraj Yadav too gave Gandassa blows  

to Ganauri Yadav.  Sudhir Yadav using Gandassa hit on the  

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forehead of Bindeshwar Yadav.  Kuldeep Yadav gave gandassa  

blow to Munshi Yadav.  Paro Mahto also beat Ganauri Yadav  

with  lathi.   While  they  were  taking  Suresh  to  Govindpur  

Hospital, just after some distance, he died on the way.  When  

they reached Govindpur Hospital, S.I. recorded his statement.  

In his statement under Section 164 of the Code, he has not  

mentioned all the above details.  According to him, Suresh was  

alive at the spot but he died on the way to Govindpur Hospital.  

Even, in respect of use of weapons by the accused, he was not  

consistent with his earlier statement made under Section 164  

of the Code.  He also admitted that S.I. seized blood stained  

earth in his presence.  He also stated that even though S.I.  

saw the clothes having blood spots but he did not seize them.  

He also asserted that at the relevant time, he was repairing  

diesel engine and Mohan-Mechanic was present at that time.  

In cross-examination, he also admitted that there is another  

counter case against the very same incident and he informed  

the court that on that day he did not see any injury on the  

person  of  Brahmdeo  (A-1),  Sunil  Yadav  (A-9)  and  Musafir  

Yadav.   He  also  answered  that  when  Suresh  was  running  

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ahead of all of them, he was hit by a bullet on his abdomen.  It  

is not the case of any one that Suresh was running towards  

the accused.  On the other hand, it is their definite case that  

the accused persons were chasing and Suresh and others were  

running to escape from them.  In such circumstances, there is  

no plausible explanation how the bullet hit Suresh Yadav – the  

deceased, on his abdomen.  From his evidence, it is clear that  

though  diesel  mechanic-Mohan  was  present,  he  denied  his  

relationship with him in the statements made later on.  It was  

put to him that incident did not actually take place as stated  

and all  accused were not present.  It is also clear from his  

evidence that injury on the accused was not seen by him.

18)  The next witness heavily relied on by the prosecution is  

Munshi  Yadav  (PW-7).   According  to  him,  accused  persons  

were armed and Brahmdeo Yadav (A1) fired a shot from gun  

which hit Suresh Yadav on his abdomen and he fell  on the  

ground and when Ganauri Yadav (PW-3) went for his rescue,  

five accused persons, namely, Bale Yadav (A8), Kuldeep Yadav  

(A6),  Sunil  Yadav (A4),  Suraj  Yadav (A11)  and Shiv Nandan  

Yadav (A10), all armed with deadly weapons, started beating  

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him.  Suresh Yadav died on the way to hospital.  His evidence  

also  makes  it  clear  that  he  did  not  deny  the  presence  of  

mechanic-Mohan  at  the  place  of  occurrence.   According  to  

him,  the  incident  started  when  diesel  engine  was  about  to  

start.  A specific suggestion was put to him that Suresh Yadav  

died from the bullet fired by Upendra Yadav.  It is relevant to  

note the conduct of (PW-7).  He admitted in his evidence that  

after the incident, he went to take the cow for grazing.  It is  

unnatural  that  after  having  seen  the  incident,  without  

associating with his fellow villagers about the crime, he coolly  

went for grazing his cow which is unbelievable.

19)  Another  witness  relied  on  by  the  prosecution  is  

Bindeshwar Prasad @ Manager Yadav (PW-4).  In his evidence,  

he mentioned 17 persons as accused who were present at the  

place of occurrence and, according to him, on seeing them, he  

got  afraid  of  his  life  but  did  not  run  away  and  remained  

standing.   He  said,  when  bullet  hit  Suresh,  they  started  

running.  He further deposed that except Suresh Yadav, no  

other  fell  down  due  to  beating,  all  continued  running  and  

some of them reached their homes and some remained there.  

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He has not only added more names as accused persons but  

also asserted that the bomb was exploded after firing of shots.  

He  also  mentioned  that  Suresh  Yadav  died  on  the  way  to  

hospital.  A specific suggestion was also given to this witness  

that  Suresh  Yadav  died  from  the  bullet  fired  by  Upendra  

Yadav.  Here again, by drawing our attention to his statement  

under Section 164 of the Code, it was pointed out that there  

were  lot  of  contradictions  and  inconsistencies  in  respect  of  

vital aspects.   

20)  The next witness relied on by the prosecution is Ganauri  

Yadav (PW-3).  Like Bindeshwar Yadav (PW-4), he also named  

17 persons as accused who came at the place of occurrence  

and (A1) fired from gun hitting the abdomen of Suresh Yadav  

and other accused persons started beating.  He said when he  

fell down, he was not hit on neck with gandassa.  He asserted  

that Suresh Yadav died on the spot.  He received one blow of  

spear and two blows of gandassa.  He explained that the said  

blow of spear was given by poking it into his body and not like  

hitting with a lathi.  He further deposed that the attack with  

spear caused a hole in the vest also.  As stated earlier,  he  

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asserted that Suresh Yadav died at the place of  occurrence  

itself,  which  is  not  in  tune  with  the  statement  of  other  

prosecution  witnesses.   He  said  that  blood  did  not  fall  on  

diesel engine, however, it fell at the spot.  He also informed the  

Court  that  the  blood oozed out from the wounds of  all  the  

injured and its stains were present up to Govindpur hospital.  

He admitted that he did not see any injury on the persons of  

accused.  He admitted that he was not in full sense when he  

made the statement to S.I. under Section 164 of the Code.  He  

also referred to the use of  bomb which was kept in a bag,  

though, he did not say the same before the court.   

21)   Another  witness relied on by the prosecution is  Kesho  

Yadav (PW-6)-father of the deceased.  He admitted that he had  

diesel engine in the field towards north of village.  His sons,  

namely, Suresh Yadav and Naresh Yadav were repairing the  

said  engine  for  irrigation  purposes.   At  that  time,  all  the  

accused  Brahmdeo  Yadav  (A1),  Darogi  Mahto (A2),  Maho  

Yadav (A3), Sunil Yadav (A4) armed with guns in their hands,  

accused Kuldip Yadav, Shiv Nandan Yadav, Baleshwar, Suraj  

with  gandassas,  Sunil  Yadav  with  saif,  Sudhir  yadav  with  

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spear  and  Paro  Mahto  with  lathi  came  there.    He  further  

explained  that  immediately  on  coming  there,  the  accused  

persons  surrounded  them  and  when  they  started  running,  

they were caught in the field of Aziz Mian.  Accused Brahmdeo  

Yadav (A1) fired from gun and the bullet hit the abdomen of  

Suresh Yadav and he fell  down.  Naresh Yadav went to lift  

Suresh from the ground when Sunil Yadav hit him with saif  

causing injury to his lips.  When Ganauri Yadav went to pick  

him up, Kuldeep Yadav hit on his neck using gandassa.  He  

also asserted that his son Suresh Yadav died at the spot itself.  

He further informed the court that the bullet made a hole in  

the vest of his son and the cloth got cut edges and that was  

handed over to the police.   

22)  Another witness examined on the side of the prosecution  

is Dr. Basudeo Yadav (PW-5).  He attested the seizure memo  

which was prepared by SI before him.  He also admitted that  

Naresh Yadav affixed his thumb impression before him and he  

was  present  there.   He  did  not  say  anything  about  the  

occurrence.  Minta Devi (PW-8)-wife of the deceased, also did  

not elaborate anything about the incident.   

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23)    Dr. R.K. Bibhuti, who treated injured Naresh Yadav (PW-

9) and other injured witnesses was examined as (PW-2).  He  

examined  Naresh  Yadav,  Munshi  Yadav,  Ganauri  Yadav,  

Bindeshwar  Yadav  and  after  treatment  issued  a  certificate  

about  the  same.   Dr.  Bipul  Kumar,  who  conducted  the  

autopsy on the body of the deceased was examined as PW-1  

and found the following ante-mortem injuries:-

“(1)  An  oval  lacerated  wound  of  1/2”  diameter  with  inverted and charred margin, half inch right to illeg. of  uncertain depth, i.e. wound of entry.

(2) Multiple bruises of size 3”x2” to 1”x1/2”, in four in  number over back, right lower chest and abdomen.

On  dissection  abdominal  cavity  filled  with  blood  and  blood clot, multiple perforations four in number of small  intestine locum and transverse colon, linear ruptured, a  metallic foreign body like bullet of 1 ½” length and 1/6”  in diameter was lodged at L/1 spine after piercing the  abdominal  aorta.   Rest  viscera  were  intact  and  pale,  stomach contains fluids about 100 ml. Bladder empty,  heart all chambers empty.

Cause of death – hemorrhage and shock produced by  above noted injuries.  Injury No. 1 caused by firearm  such as gun.  Injury No. 2 caused by hard and blunt  object such as lathi.”

24)  The analysis of the evidence of R.K. Bibhuti (PW-2) and  

the  evidence  of  injured  persons  about  the  nature  of  injury  

contradict each other.  The analysis of witnesses examined on  

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the side of the prosecution clearly show that they were not  

able  to  identify  the  actual  place  of  occurrence,  namely,  

whether the incident happened near the diesel engine or in the  

field of Aziz Mian.  They all had a different version about the  

nature  of  injuries  and they  are  not  consistent  whether  the  

deceased died at the spot or on the way to hospital or in the  

hospital.   All  these  contradictions,  uncertainties  cannot  be  

ignored lightly when some of the accused also suffered bullet  

injuries in the same incident, which is a cross case, namely,  

FIR No. 12/97.

Conviction under Section 149 IPC

25)  Apart from conviction under Section 302, all the accused  

were also convicted under Section 149 IPC.  Learned counsel  

appearing  for  the  appellants  demonstrated that,  first  of  all,  

there was no common object, even if, it is admitted that there  

was a common object, the same was not known to anybody, in  

such circumstances, punishment under Section 149 IPC is not  

warranted.  On the other hand, learned counsel appearing for  

the State submitted that when the charge is  under  Section  

149  IPC,  the  presence  of  the  accused  as  part  of  unlawful  

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assembly is sufficient for conviction, even if,  no overt  act is  

imputed  to  them.   In  other  words,  according  to  him,  mere  

presence  of  the  accused  as  part  of  unlawful  assembly  is  

sufficient  for  conviction.   In  order  to  understand  the  rival  

claim, it is useful to refer Section 149 which reads as follows:-

“149.  Every  member  of  unlawful  assembly  guilty  of  offence committed in prosecution of common object.—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.”

26)  The above provision makes it clear that before convicting  

accused with the aid of Section 149 IPC, the Court must give  

clear finding regarding nature of common object and that the  

object was unlawful.  In the absence of such finding as also  

any overt act on the part of the accused persons, mere fact  

that they were armed would not be sufficient to prove common  

object.  Section 149 creates a specific offence and deals with  

punishment of that offence.  Whenever the court convicts any  

person or persons of an offence with the aid of Section 149, a  

clear  finding  regarding  the  common object  of  the  assembly  

must be given and the evidence discussed must show not only  

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the nature of the common object but also that the object was  

unlawful.   Before  recording a  conviction under  Section 149  

IPC,  essential  ingredients  of  Section  141  IPC  must  be  

established.   The  above  principles  have  been  reiterated  in  

Bhudeo Mandal and Others vs. State of Bihar (1981) 2 SCC  

755.

27)  In Ranbir Yadav vs.  State of Bihar (1995) 4 SCC 392,  

this  Court  highlighted  that  where  there  are  party  factions,  

there is a tendency to include the innocent with the guilty and  

it is extremely difficult for the court to guard against such a  

danger.   It  was  pointed  out  that  the  only  real  safeguard  

against the risk of condemning the innocent with the guilty  

lies in insisting on acceptable evidence which in some measure  

implicates  such accused and satisfies  the conscience of  the  

court.   

28)  In  Allauddin  Mian  and  others  Sharif  Mian  and  

another vs. State of Bihar (1989) 3 SCC 5, this Court held:-

“….Therefore, in order to fasten vicarious responsibility on  any member of an unlawful assembly the prosecution must  prove  that  the  act  constituting  an  offence  was  done  in  prosecution of the common object of that assembly or the act  done is such as the members of that assembly knew to be  likely to be committed in prosecution of the common object  

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of  that  assembly.  Under  this  section,  therefore,  every  member of an unlawful assembly renders himself liable for  the criminal act or acts of any other member or members of  that assembly provided the same is/are done in prosecution  of the common object or is/are such as every member of that  assembly  knew to  be  likely  to  be  committed.  This section  creates a specific  offence and makes every member of  the  unlawful  assembly  liable  for  the  offence  or  offences  committed in the course of the occurrence provided the same  was/were committed in prosecution of the common object or  was/were such as the members of that assembly knew to be  likely  to  be  committed.  Since  this  section  imposes  a  constructive penal liability, it must be strictly construed as it  seeks to punish members of an unlawful assembly for the  offence  or  offences  committed  by  their  associate  or  associates  in  carrying  out  the  common  object  of  the  assembly. What is important in each case is to find out if the  offence was committed to accomplish the common object of  the assembly or  was one which the  members  knew to be  likely to be committed. There must be a nexus between the  common object and the offence committed and if it is found  that  the  same was committed  to  accomplish  the  common  object every member of the assembly will become liable for  the same. Therefore, any offence committed by a member of  an unlawful assembly in prosecution of any one or more of  the  five  objects  mentioned  in  Section  141  will  render  his  companions  constituting  the  unlawful  assembly  liable  for  that offence with the aid of Section 149, IPC….”

29)  It is not the intention of the legislature in enacting Section  

149 to render every member of  unlawful  assembly liable  to  

punishment for every offence committed by one or more of its  

members.  In order to attract Section 149, it must be shown  

that  the  incriminating  act  was  done  to  accomplish  the  

common object of unlawful assembly and it must be within the  

knowledge of other members as one likely to be committed in  

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prosecution  of  the  common object.   If  the  members  of  the  

assembly knew or were aware of the likelihood of a particular  

offence being committed in prosecution of the common object,  

they would be liable for the same under Section 149 IPC.   

30)   In  Rajendra  Shantaram  Todankar vs.  State  of  

Maharashtra and others (2003) 2 SCC 257=2003 SCC (Crl.)  

506, this Court has once again explained Section 149 and held  

as under:

“14. Section 149 of the Indian Penal Code provides that if an  offence  is  committed  by  any  member  of  an  unlawful  assembly  in  prosecution  of  the  common  object  of  that  assembly, or such as the members of that assembly knew to  be likely to be committed in prosecution of that object, every  person who at the time of the committing of that offence, is a  member of the same assembly is guilty of that offence. The  two clauses of Section 149 vary in degree of certainty. The  first  clause contemplates the commission of  an offence by  any member of an unlawful assembly which can be held to  have been committed in prosecution of the common object of  the assembly. The second clause embraces within its fold the  commission  of  an  act  which  may  not  necessarily  be  the  common object of the assembly, nevertheless, the members  of  the  assembly  had  knowledge  of  likelihood  of  the  commission of  that  offence in prosecution of  the common  object.  The  common  object  may  be  commission  of  one  offence while there may be likelihood of the commission of  yet  another  offence,  the  knowledge  whereof  is  capable  of  being  safely  attributable  to  the  members  of  the  unlawful  assembly.  In  either  case,  every  member  of  the  assembly  would be vicariously liable for the offence actually committed  by any other member of the assembly. A mere possibility of  the commission of the offence would not necessarily enable  the  court  to  draw  an  inference  that  the  likelihood  of  commission  of  such  offence  was  within  the  knowledge  of  every member of the unlawful assembly. It is difficult indeed,  though  not  impossible,  to  collect  direct  evidence  of  such  

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knowledge. An inference may be drawn from circumstances  such  as  the  background  of  the  incident,  the  motive,  the  nature of the assembly, the nature of the arms carried by the  members  of  the  assembly,  their  common  object  and  the  behaviour of the members soon before, at or after the actual  commission of the crime. Unless the applicability of Section  149  —  either  clause  —  is  attracted  and  the  court  is  convinced, on facts and in law, both, of liability capable of  being fastened vicariously  by reference  to  either  clause  of  Section  149  IPC,  merely  because  a  criminal  act  was  committed by a member of the assembly every other member  thereof would not necessarily become liable for such criminal  act. The inference as to likelihood of the commission of the  given criminal act must be capable of being held to be within  the knowledge of another member of the assembly who is  sought  to  be  held  vicariously  liable  for  the  said  criminal  act….”  

The same principles have been reiterated in State of Punjab  

vs. Sanjiv Kumar alias Sanju and others (2007) 9 SCC 791.

Summarization of the principles attracting S.149

31)   In the  earlier  part  of  our order,  we have analysed the  

evidence led in by the prosecution and also pointed out several  

infirmities  therein.   In  our  view,  no  overt  act  had  been  

attributed  to  any  other  accused  persons  except  Brahmdeo  

Yadav  (A1)  towards the murder  of  Suresh Yadav.   Had the  

other accused persons intended or shared the common object  

to  kill  Suresh  Yadav,  they  must  have  used  the  weapons  

allegedly  carried  by  them  to  facilitate  the  alleged  common  

object  of  committing  murder.   The  Sessions  Judge,  on  

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analysis, held that no case under Section 307/149 against all  

the 11 accused persons be made out for causing  murderous  

assault and hurt to Naresh Yadav, Munshi Yadav, Bindeshwar  

Yadav  and  Ganauri  Yadav.   The  learned  Judge  further  

observed that it appears that at least 4 of the accused persons  

were  armed with  gun but  no  gun shot  injury  was  inflicted  

against  any  of  the  aforesaid  injured  prosecution  witnesses.  

Had the accused persons intended to kill the witnesses, they  

must have used the surest weapon of committing murder i.e.  

gun against any of the aforesaid witnesses.  In view of the fact  

that  common object  was not known to anybody and in the  

light of the principles enunciated over application of Section  

149 IPC and with the available  material  on the side of  the  

prosecution, we hold that it is not safe to convict the accused  

persons under Section 149 IPC.

32)  Summary of all the issues:

a)  Though both the FIRs (11/97 and 12/97) were investigated  

by the very same IO, he had not acted in good discipline and  

not  drawn the  attention  of  the  trial  Judge  about  the  cross  

cases arising out of the same incident.   

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b)  By reading the statement of prosecution witnesses under  

Section 164 of the Code and their evidence before the Court  

clearly  show their  improvements  with  due  deliberation  and  

consultation  and  in  the  absence  of  credible  explanation,  

conviction based on their testimony cannot be sustained.   

c)   The prosecution is not sure,  especially  about the actual  

place of occurrence since some witnesses demonstrated that it  

occurred near diesel engine and some said the occurrence had  

taken place in the field of Aziz Mian.  We have already noted  

down the contradictions among the prosecution witnesses on  

material  facts  and it  is  not  safe  to  convict  all  the  accused  

based on the same.   

d)   Even,  on  description  of  injuries  alleged  to  have  been  

sustained, the details furnished by the prosecution witnesses  

and the medical evidence vary on material aspects.   

e)  Non-examination of diesel mechanic-Mohan Yadav is fatal  

to the prosecution case.  Though, his presence at the scene of  

occurrence was mentioned by the prosecution witnesses under  

Section  164,  it  is  not  clear  why  the  prosecution  did  not  

examine him.   

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f)  Likewise, though the IO collected blood stained clothes and  

other  objects  including  earth  from  the  site,  there  is  no  

information whether the same were examined by the forensic  

science laboratory and the outcome of the same.   

g)  There is no material to show that all the accused shared in  

common object,  the object  itself  not being proved and their  

participation  in  it  is  not  made  out  by  credible  evidence.  

Without  a  clear  finding  regarding  common  object  and  

participation  therein  by  each one  of  the  accused  members,  

there can be no conviction with the aid of Section 149 IPC.   

h)  The place of occurrence has been shifted by informant and  

the investigating officer has admitted not making any site plan  

of the place of occurrence and casually acted on the basis of  

the  statement  of  the  informant  without  carrying  its  own  

investigation to ascertain the actual place of occurrence.   

i)   As it  was morning  time,  at  least  some villagers  in  their  

routine  work must  have been present  in  neighbouring  field  

who could have deposed regarding the occurrence and manner  

in which it did take place, if they were examined.   

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j)  The injuries on the accused, particularly, fire arm injury on  

Brahmdeo Yadav has not been explained by the prosecution  

despite the fact that the informant parties were chargesheeted  

for causing those injuries on the person of Brahmdeo Yadav,  

Darogi Mahto, Musafir Yadav and Sunil Yadav.   

k)  The weapons alleged to be used in the offence were not  

seized and no effort was made to recover them.  Hence, there  

is nothing on record to link the accused persons to the crime.   

l)  The blood stained clothes, blood stained earth of the place  

of occurrence were not sent to forensic laboratory for chemical  

examination.   

m)  The bullet found by the doctor who conducted the post-

mortem  of  the  deceased  was  not  seized  and  preserved  for  

court’s observation.   

n)   The  version  given  by  eye-witnesses  who  were  also  

interested witnesses on account of their relationship with the  

deceased  and being  inimically  deposed  against  the  accused  

persons is highly exaggerated, contrary to each other and not  

fully  corroborated  with  medical  evidence  and  there  are  

discrepancies about the number of accused persons, weapons  

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and ammunitions carried by them and they are not in tune  

with what (PW-9) informant has stated in his deposition.  In  

other words, the prosecution has not presented true version  

on most of the material parts and therefore the witnesses and  

material placed on their side does not inspire confidence and  

cannot be accepted on its face value.  

o)   The findings of  the High Court  and ultimate conclusion  

dismissing the appeals are perverse and resulted in failure of  

justice.

33)  Under these circumstances,  the impugned judgment of  

the High Court dated 26.09.2003 in Criminal Appeal Nos. 293,  

307, 311 and 371 of 2000 and the judgment and order dated  

26/27.06.2000  passed  by  the  Ist  Addl.  District  &  Sessions  

Judge, in Sessions Trial No. 333/97/40/97 are set aside.  All  

the accused are directed to be released forthwith unless their  

presence is required in some other case.  Appeals are allowed.  

 …………………..……………………J.            (P. SATHASIVAM)           

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 .…....…………………………………J.    (H.L. GOKHALE)  

NEW DELHI; APRIL 11, 2011.                    

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