Important pointWhere all number of persons are present and prosecution seeks prosecution of case with the help of Section 149 IPC for the offence committed by such accused persons, it may be safe to convict only those persons against whom overt act is alleged lest some innocent spectator may get involved.

Headnote:(i) Indian Penal Code, 1860—Sections 302 and 302/149—10 accused/appellants convicted under—Appellant/accused armed with barchhas assaulted prosecution party at around 8 a.m. soon after prosecution party having taken bath in river Ganges in a Satuwan festival came out—One of the victims assaulted on chest and forehead died and further victims PW1, 2, 4 and 7 sustained injuries—Appeal—Defence contentions that prosecution case was a counter blast to the case got registered by accused persons and that injury on the persons of some of the accused remain unexplained and all witnesses examined in the case were interested as related to each other—Incident of the other case had occurred in the khalihan of accused where harvested crop of gram and wheat had been stored and prosecution party attempted to loot away that crop—Report regarding that incident was lodged at 3 p.m.—Report of the present case was lodged at 11 a.m.—Two incidents being separate and independent, no question of prosecution explaining injuries on the person of accused arose in the present case—Courts below found evidence of witnesses, some of them injured, worthy of credence, corroborated by medical evidence and no reason to not to believe them—In absence of strong reasons testimony of witnesses injured in the incident can be discarded—Fact that they were related to deceased was the reason why they were attacked—When direct evidence was available it was not necessary to go into the question of motive—No reason to interfere that conviction. (Paras 8 to 13)
(iii) Indian Penal Code, 1860—Section 149—Offence committed in prosecution of object of unlawful assembly where large number of persons were present, it may be over to convict only those against whom overt act was alleged with that aid of Section 149 IPC—This is Rule of caution and not Rule of law.
Held : Appellant Nagarjit Ahir is the son of Lakshman Ahir. The prosecution has not alleged any overt act against Nagarjit Ahir. The evidence on record establishes the fact that large number of persons were present. In such a case, it may be safe to convict only those persons against whom overt act is alleged with the aid of Section 149 IPC, lest some innocent spectators may get involved. This is only a rule of caution and not a rule of law. In the instant case, we find that even if Nagarjit Ahir was present when the occurrence took place, there is nothing to suggest that he shared the common object of the unlawful assembly. Admittedly, he did not take any part in the assault. We do not, therefore, consider it safe to convict him merely on the ground that he was present, because admittedly large number of persons had come to the ghat that day for taking a bath in river Ganges. We, therefore, extend to him the benefit of doubt and acquit him of all the charges levelled against him. (Para 14)

Judgment

B.P. Singh, J.—This batch of appeals by special leave arises out of a common judgment and order of the High Court of judicature at Patna dated 25th February, 1999 in Criminal Appeal Nos. 513 & 515 of 1986.

2. There were 10 appellants before the High Court and those ten appellants have preferred these 4 appeals before us. Out of them, three have since died namely, Tribeni Ahir, Ramshish Ahir and Surajdev Dubey.

3. The appellants were tried by the Second Additional Sessions Judge, Arrah in Sessions Trial No. 69/77. By judgment and order dated 30th September, 1986 the trial court found them guilty and convicted them of the offences with which they were charged and sentenced them to various terms of imprisonment. What is of significance is the fact that appellants Tribeni Ahir (since deceased), Dhorha Ahir, Nand Kumar Ahir and Jugeshwar Dubey have been sentenced to life imprisonment under Section 302 IPC. The remaining appellants have been sentenced to life imprisonment under Section 302 read with Section 149 IPC. Their convictions have been challenged before us in these appeals.

4. In the occurrence that took place at about 8.00 A.M. on 13.4.1976 Jagarnath Singh alias Natha Singh lost his life. In the same incident injuries were inflicted on 4 others, namely, PW-1 Kamta Singh (brother of the deceased), PWs 2 & 4 Murari Singh and Rangnath Singh, sons of the deceased and Ramta Singh PW-7, a cousin of the deceased.

5. The case of the prosecution is that at about 8.00 A.M. on the date of occurrence, the deceased as well as the injured witnesses and others had gone to take bath in river Ganges at the Taksemar Ghat. That was a day on which the Satuwan festival was being celebrated. Large number of persons had come to the Ghat for a holy dip in river Ganges. When the deceased and other members of his family including the injured witnesses, were coming out after taken bath, the appellants are alleged to have come and started assault. The case of the prosecution is that all those 12 persons were armed with barchhas. Surajdeo Dubey (since deceased) exhorted them to assault whereafter Tribeni Ahir, Dhorha Ahir, Nand Kumar Ahir and Yogeshwar Ahir inflicted barchha injuries on the deceased Jagarnath Singh who after receiving injuries on his chest and on his fore-head fell down and died. PW-1 Kamta Singh was assaulted by Sheoji Ahir, Moti Ahir and Teja Ahir while Ramta Singh PW-7 (the informant) was assaulted by Nand Kumar Ahir. Similarly, Rangnath Singh PW-4 was assaulted by Lakshman Ahir. On alarm being raised, Karu Kurmi PW-3 Sheo Bilash Singh PW-5 and some others arrived at the spot and witness the occurrence. The assailants fled away. The injured including the deceased were first brought to Salempur Chatti and thereafter to the sadar hospital at Arrah. The deceased was declared dead while the other injured witnesses were treated at the same hospital. The first information report lodged by Ramta Singh PW-7 was recorded by Sub-Inspector R.B. Singh (since dead) at the Arrah Mufassil police station at 11.00 A.M. on the same day. The case was investigated and ultimately the appellants were put up for trial.

6. The appellants took up various defences. Some of them stated that they have been falsely implicated due to enmity while others contended that this case was a counter blast to Arrah Munfassil P.S. case No. 11 registered on the same day which arose out of an incident which took place earlier in the morning at 6.00 A.M. It was alleged that Tribeni and Ramshish Ahir appellants were guarding their harvested bundles of gram and wheat which had been kept in their khalihan. The prosecution party attempted to loot away the bundles and in that process armed with deadly weapons they attacked the aforesaid appellants by barchha and lathi. On the intervention of others, they were saved. Thereafter, Tribeni Ahir lodged a first information report at 3.00 P.M. on the same day. That case was also investigated and the accused in that case which inc

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