Point of Law: Though for applicability of Section 149, there need not be a prior meeting of mind. Even mere presence in the unlawful assembly, with an active mind to achieve the common object, makes such a person vicariously liable for the act of the unlawful assembly.

JUDGMENT :

Sadhna Rani (Thakur), J.

As both the appeals arise from the same incident and common judgment, we have heard them together and they are being disposed of by this common judgment.

2. Both the above mentioned criminal appeals have been filed by the appellants Ramashankar Kushwaha, Mohan Gaur, Ravindra Prasad @ Doctor, Bacchan Gaur and Pappu @ Manoj Kumar Thakur against the judgment and order dated 27.8.2013 passed by the learned Additional Sessions Judge, Court No. 7, Deoria in S.T. No. 219 of 2010 ( State Vs. Mohan Gaur and others) whereby the appellants have been convicted and sentenced under sections 147, 328/149, 302/149, 201 and 118/149 I.P.C. Police station Bankata, Distrct Deoria.

3. As per the prosecution story, the first information report was lodged by one Shakul Gaur on 08.02.2010 at the police station Bhatni, District Deoria stating therein that his sister Indu Devi was married to Mohan Gaur son of late Baharan Gaur. Out of their wedlock, they had three sons namely Harikesh, Rakesh and Vikash and two daughters Sita and Shilpi. His brother-in-law had developed bad association and started taking liquor. He had purchased a tractor after selling his land but due to his bad habit of drinking, he had agreed to sell the tractor to one Bhola Singh for Rs.2,50,000/-. Out of the sale amount, he took rupees one lac as advance and had spent the money on his friends enjoying liquor. At this, the complainant’s sister namely, Smt. Indu Devi asked Bhola Singh (the vendee of the tractor) to give the rest of money in her hands so that she could deposit the same in the bank. His brother-in -law (Mohan Gaur) being annoyed with that had started harassing his sister. She had narrated her plight to the complainant and other family members. They tried to pacify the matter but Mohan Gaur paid no heed. On 07.02.2010, they came across a news in the newspaper that near Bankata railway station, six people were crushed over by a train and died. They suspected the dead bodies being of their sister and her children. The complainant along with other villagers then reached the railway station Bankata. The complaint’s brother Ajay and Vijay went to the post-mortem house and had identified the dead bodies as of their sister, nephews and nieces. They cremated the dead bodies in the village Bhaisahi. The house of the complainant’s sister was found to be washed and cleaned. Near the railway line, the wheat crop was lying down. It was asserted that the deceased persons appeared to have been first murdered in their house in the night and then to give the whole incident the colour of suicide their dead bodies were thrown on the railway line by the accused Mohan Gaur (his brother-in-law) and his friends. Near the railway line, no blood was found. The complainant stated that he also came to know that upto 8.00 A.M. in the morning on 6.2.2010 accused Mohan Gaur was in his house and after that he had absconded.

4. Shrawan Kumar, the Assistant Station Master, Bankata, reported the incident to the G.R.P. Bhatni station at about 8.45 A.M. on 6.2.2010. Received the information, the police concerned reached the spot, recorded the requisite statements, prepared site plan, collected samples of blood stained stones from the railway track. The house of the deceased was also searched wherefrom a bottle of liquor (Royal Vat Premium Whisky) and a mobile phone without SIM were recovered. Inquest reports were prepared. The dead bodies were sent for the post-mortem on 6.2.2010. Near the railway track, from the Corn-field of Nathuni Gupta one woolen shawl was recovered. From the field of Ram Sakal Maurya some broken pieces of red bangles and red thread were recovered. From the nearby wheat field of Indrajeet Maurya one steel glass, one heir clip, one necklace, one plastic bottle of liquor, a half piece of blade broken into two pieces with its cover and one pen were recovered. From the open field of Vijay Maurya, recovery of one plastic glass, one liquor bottle of 'Banti-B