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IN THE HIGH COURT OF JUDICATURE AT PATNA
BIBEK CHAUDHURI, ANSHUMAN, JJ.
Kamakhya Singh and Anr. – Appellants
Versus
The State of Bihar – Respondent
Criminal Appeal (DB) No. 393 of 1995
Decided On : 11-09-2025
Indian Penal Code, 1860 – Sections 302/149 – Indian Evidence Act, 1872 – Sections 145 and 157 – Murder – Common object – Life sentence – FIR is not a substantive piece of evidence and can only be used to corroborate statement of FIR maker under Section 157 of Evidence Act or to contradict it under Section 145 of Evidence Act – It cannot be used as evidence against maker at trial, nor to corroborate or to contradict evidence of other witnesses – It is not expected that informant would make a statement of incident in mathematical precision stating what had happened in seriatim – FIR do not suffer from concoction, exaggeration and infirmity – Contradictions in evidence of informant cannot also be treated as material contradiction – Only because PWs were close relatives and interested witnesses, their evidence cannot be treated as false and concocted – Appellants cannot roped with aid of vicarious liability described in Section 149 of IPC on the ground that four suspected persons were standing outside house of victim – Oral evidence of witnesses on record is absolutely silent as to formation of unlawful assembly by appellants and other unknown persons – Facts and circumstances does not inspire Court to hold that appellants formed unlawful assembly within meaning of Section 141 of IPC and in prosecution of common object of assembly, appellants committed murder of father and grandfather of informant and injury to brothers and nephew of informant and witnesses – Conviction and sentence modified. (Paras 24, 27, 28, 36, 46, 49, 51, 58, 78, 79 and 80)
Indian Penal Code, 1860 – Sections 141 and 149 – Common object of unlawful assembly – Mere presence in unlawful assembly cannot render a person liable unless there was a common object and members of unlawful assembly were actuated by that common object and that object is one of those set out in section 141 – Where common object of unlawful assembly is not proved accused cannot be convicted with help of Section 149 of IPC – Crucial question is as to whether assembly consisted of five or more persons and whether said persons entertained one or more of common objects, as specified in Section 141 of IPC – Common object may be formed by express agreement after mutual consideration, but that is by no means necessary – It may be formed at any stage by all or few members of assembly and other members may just join and adopt – Once formed, it need not continue to be same – It may be modified or altered or abandoned at any stage – Expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object" – It must be immediately connected with common object by virtue of nature of object – There must be community of object and object may exist only up to a particular stage and not thereafter. (Paras 39 and 40)
Indian Penal Code, 1860 – Section 149 – Common object of unlawful assembly – Section 149 has essential 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 common object (under Section 141 of IPC) of that assembly or such as members of that assembly knew to be likely to be committed in prosecution of common object – If a body of persons go armed to take forcible possession of land, it would be right to say that someone is likely to be killed and all members of unlawful assembly must be aware of that likelihood and would be guilty under second part of Section 149 IPC – There may be cases which would come within second part, but not within first – Distinction between two parts of Section 149 IPC cannot be ignored or obliterated. (Para 44)
| Table of Content |
|---|
| 1. incident leading to conviction detailed (Para 1 , 2 , 4 , 5 , 7 , 8 , 9 , 11) |
| 2. arguments against credibility of witnesses (Para 12 , 14 , 16 , 18 , 32 , 54) |
| 3. court's analysis of evidence presented (Para 15 , 17 , 26 , 39 , 61) |
| 4. legal examination of unlawful assembly and common object (Para 38 , 49 , 50 , 60) |
| 5. final decision on sentencing (Para 79 , 83 , 85) |
JUDGMENT :
BIBEK CHAUDHURI, J.
1. The instant appeal is directed against the judgement and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Bhojpur at Ara on 27th of November, 1995 in Sessions Trial No. 271 of 1991, whereby and whereunder, the appellants were held guilty and convicted of the charges under Section 302 of the INDIAN PENAL CODE and also under Sections 149 /302 of the INDIAN PENAL CODE and sentenced to suffer rigorous imprisonment for life on the above two heads of charge.
2. Accused Binod Singh was further sentenced to undergo rigorous imprisonment for 8 years for the offence punishable under Section 307 of the INDIAN PENAL CODE . Both the appellants were further sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 148 of the I.P.C. and Section 27 of the ARMS ACT , 1959. It was directed by the Trial Court that substantive sentences of rigorous imprisonment shall run concurrently.
3. Sworn of unnecessary details, the facts, leading to the present appeal is as follows: -
4. One Baban Prasad, son of Jagannath Prasad, since deceased, made a statement before the Officer Incharge of Charphokhari Police Station on 28th of August, 1990 at about 09.00 P.M. that on the self-same date at around 08.00 P.M., while he was sitting in the inner courtyard of his house and the entrance door of the house was open, he suddenly heard sounds of two gun-shots from outside. Thereafter, continuous firing started. Out of fear, the brother of the informant Hareshwar Prasad and the informant hid themselves behind the southern door of their house. From there, they saw Kamakhya Singh, Binod Singh and Kamlesh Bhat, all residents of village-Balwan, being armed with a rifle, a pistol and a double barrel gun respectively, and one unknown person with a rifle in his hand, entered into their house. Accused Kamakhya Singh fired with rifle at his younger brother, Baleshwar Prasad, who was sitting at the door way of the western room in the inner courtyard. On being hit, he received gun-shot injury on his arm. Accused Kamlesh Bhat fired at the younger brother of the informant Umesh Prasad and his nephew Dharmendra Prasad with the help of his double barrel gun and both of them sustained gun-shot injury on their legs.
5. After this, all four persons went on firing inside the house and while making their exist from the northern side of the house, they also opened fire at the father of the informant, namely, Jagannath Kahar, who died at the spot, receiving bullet injury. The informant found the dead-body of his father lying on the ground in pool of blood. When he came out of the house, he saw his grand father Banwari Kahar lying dead in pool of blood by the side of a hand pump in front of their house. After causing massacre as aforesaid, the appellants fled away towards eastern side while firing. It was also stated by the informant that there were, in all, 8 miscreants, armed with rifle, guns and other fire arms. Except the accused persons named in the F.I.R., he could not identify any other person.
6. The informant also stated that the houses of accused Kamakhya Singh and Binod Singh are situated 150- 200 away from their house on the north eastern direction. About 10 days before the incident, Kamakhya Singh ate some sweets from the shop of the brother of the informant Hareshwar Prasad, but did not pay the money for the said sweets. Over the said incident, an altercation took place between Hareshwar Prasad and Kamakhya Singh and during such altercation, accused Kamakhya Singh threatened him to wipe out al
The court ruled that evidence from interested witnesses is credible if consistent and supported by circumstances, necessitating careful evaluation of roles in unlawful assemblies under IPC.
The prosecution must prove the formation of an unlawful assembly and the shared common object beyond reasonable doubt, and essential witnesses must be produced to unfold the narrative.
Conviction for murder upheld based on unlawful assembly doctrine; presence in assembly sufficient for accountability under Section 149 IPC.
Point of law : Object of the proceedings under Section 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its ....
The court affirmed the conviction for murder based on the established common object of the unlawful assembly, supported by credible witness testimonies and medical evidence.
The prosecution must establish a common object for unlawful assembly under Section 149 IPC; absence of motive and specific allegations can lead to acquittal.
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