IMPORTANT POINT
Mere presence at the place of occurrence does not make a person part of unlawful assembly having common intention of committing an offence.

JUDGMENT

V.S. Sirpurkar, J. —

1.This judgment will dispose of Criminal Appeal Nos. 716-717 of 2008, Criminal Appeal Nos. 119-122 of 2009, Criminal Appeal No. 833 of 2008 and Criminal Appeal No. 1907 of 2009. All these appeals are against the common judgment passed by the High Court, whereby the appeals filed by the appellants herein came to be dismissed. Initially, as many as 10 accused persons came to be tried for the offences punishable under Sections 147, 148, 302, 302 read with Section 34 as also read with Sections 109 and 149 of the Indian Penal Code (“IPC” for short hereinafter) and Section 27 of the Arms Act. The prosecution alleged that on the fateful day, i.e. 5.7.1973, at about 7 a.m., the accused persons formed an unlawful assembly and committed the murder of one Shambhu Nath Singh and his brother Prabhu Nath Singh, both deceased persons, in pursuance of their common object. The First Information Report (FIR) was lodged by one Baijnath Singh and it was alleged therein that one Thakur Ojha (A-4), Patiram Ojha (now dead), Akhilesh Ojha (A-5), Jitendra Singh (A-6), Raj Nath Singh (A-7), Gorakh Nath Singh (A-3), Keshav Singh (A-9), Bachcha Singh (A-8), Adalat Pandit (A-10), Thakur Singh (A-1) and Ram Pravesh Singh (A-2) went to his Mango orchard standing on Plot No. 4905, situated in Mauza - Mohammadpur, P.S. Gorkha, Distt. Saran, which was situated at a distance of about three furlong from village for forcibly plucking mango fruits.

2.It was further stated by Baijnath Singh that he alongwith his two sons namely Shambhu Nath Singh and Prabhu Nath Singh went to his orchard and protested against the act of the accused persons in plucking the mangoes. It was stated that Pati Ram Ojha (the dead accused) ordered Thakur Ojha (A-4) to attack on those three persons, on which Thakur Ojha (A-4) fired two shots aiming at Shambhu Nath Singh, who was injured due to fire and tried to run away towards his house, but fell on the ground at some distance in the nearby orchard of one Arjun Singh. It was then contended that Gorakh Nath Singh (A-3) went after him and gave spear blow on the back of Shambhu Nath Singh while Shambhu Nath Singh was still lying on the ground. In the meantime, Thakur Ojha (A-4) again fired two shots on the elder son of Baijnath namely Prabhu Nath Singh, who also fell on the ground in the orchard of Arjun Singh. After he fell down, Raj Nath Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit (A-10) rushed to Prabhu Nath Singh and indiscriminately assaulted him by means of spear and his body was dragged by Raj Nath Singh (A-7) and Ram Pravesh Singh (A-2). It was further stated in the FIR that on seeing this, Baijnath Singh asked himself to be killed; however, Patiram Ojha (dead accused) said that it was useless to cause the death of an old person like him and that he should better be left to flee. It was suggested that one Laxman Singh (PW-8), Arjun Singh, Bhrigunath Singh (PW-7), Ram Prasad Singh (PW-4) and others were present on the spot and had seen the entire incident. There was a fierce enmity between the two sides though they were related to each other, on account of ownership and possession of the said orchard and a civil dispute was pending in the Court of 3rd Additional District Judge, Saran.

3.The FIR was recorded by A.S.I. Abdul Malik of Garkha Police Station and the investigation ensued. The Investigating Officer arrested the dead accused Patiram Ojha, Thakur Ojha (A-4), Jitendra Singh (A-6), Raj Nath Singh (A-7), Keshav Singh (A-9), Bachcha Singh (A-8), Thakur Singh (A-1) and Ram Pravesh Singh (A-2) from the house of Raj Nath Singh (A-7). The Investigating Officer effected the search of the house and recovered a double barrel gun kept on the cot under the bed. Two spears were also recovered during the investigation, the blades of which were stained with blood. The seizures were effected and arrests were made. In the meantime, one Shantruhan Singh (PW-15), the Officer-in-charge, Garkha Police Station reach