IMPORTANT POINT
Section 149 IPC - applicability.

Judgment :

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order dated 27.4.2007 in Criminal Appeal No. 3990 of 2005 passed by the High Court of Judicature at Allahabad, partly allowing the appeal against the judgment and order dated 7.9.2005 passed by the Sessions Court, Azamgarh, in Sessions Trial No. 215 of 1991, convicting the appellants and the co-accused under Sections 302, 149 and 148 of Indian Penal Code, 1860 (hereinafter referred to as the `IPC’) and sentencing them to undergo rigorous imprisonment for life, and also one year RI, under Section 148 IPC respectively and further, to pay a fine of Rs.10,000/- on each count, and in default of such payment, to further undergo a term of four months RI.

2. The facts and circumstances giving rise to this appeal are as follows:

A. On 7.9.1990, Tej Bahadur (deceased) was travelling on a motor bike alongwith his friend Ashok at 9.00 a.m. and while doing so, he was followed by his two brothers, namely, Man Bahadur and Raj Bahadur who were both on a moped in the village of Kiratpur, district Azamgarh. The deceased was riding the motor cycle, while Ashok was the pillion rider. When they left the village, they saw the appellants and the other accused come out of a sugarcane field, armed with country made pistols with which they fired at the deceased, killing him instantaneously. After this, they immediately ran away.

B. The incident was witnessed by one Rajesh Singh (PW.3) and also Shashi Bhushan (PW.5), alongwith some other persons. Man Bahadur (PW.1) and Raj Bahadur (PW.2) shifted the dead body of the deceased and laid it near a Mango grove, beside the road.

C. Man Bahadur (PW.1) then lodged an FIR at 10.05 a.m. at a police station which was at a distance of about 12 K.M. from the place of occurrence of the incident. Mr. Sarvdev Singh (PW.4), I.O. thereafter began investigation. He came to the said spot, recovered the dead body, the cartridges and pellets, blood stained earth etc. from the aforementioned place of occurrence and prepared the panchnama. The I.O. then also recorded the statement of witnesses and after concluding the said investigation, submitted a charge sheet against 7 accused persons.

D. The learned trial Court, after holding trial, vide judgment and order dated 7.9.2005 convicted and sentenced all the seven accused persons, as has been stated hereinabove.

E. Aggrieved, all seven accused persons preferred Criminal Appeal No. 3990 of 2005 before the High Court, and by impugned judgment and order of the High Court, dated 27.4.2007, the conviction and sentence of the appellants was maintained. However, three of the convicts namely, Bane, Patiram and Phool Chand were acquitted of all charges. Hence, this appeal.

3. Shri S.R. Singh, learned senior counsel appearing for the appellants submitted that the High Court committed an error by convicting the appellants under Sections 302, 149 and 148 IPC, as after the acquittal of three persons among the accused, the total number of accused in the said case, are only four. Therefore, the provisions of Section 149 IPC would no longer be attracted. Moreover, the prosecution withheld its most material witness, that is, Ashok, the pillion rider of the motorcycle ridden by the deceased, Tej Bahadur and no explanation whatsoever was furnished, by the prosecution for his non-examination. Furthermore, it was not possible to inflict upon the deceased, the said gun shot injuries in the presence of a pillion rider on the motor bike. Shashi Bhushan (PW.5), a prime witness to the incident, turned hostile and did not support the case of the prosecution. Man Bahadur (PW.1) and Raj Bahadur (PW.2) are the real brothers of the deceased and therefore, their testimony should not be believed, as they are no doubt, interested witnesses. The evidence on record is insufficient to convict the said appellants. In view of the fact that the High Court acquitted three among the accused persons, dis-believing the testimony