In cases of unlawful assembly leading to murder, all involved members can be held vicariously liable, and eyewitness testimonies must be credible even if witnesses are related to the victim.

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

Date: 06-03-2025

The present appeal under Section 374 (2) and Section 389 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) has been preferred against the judgment of conviction and order of sentence dated 27.08.2016 and 02.09.2016 respectively, passed in Sessions Trial No. 936 of 2007 (arising out of Adapur P.S. case No. 15 of 2007) by the learned VIII^th Additional Sessions Judge, East Champaran at Motihari (hereinafter referred to as “the learned Trial Judge). By the said judgment, the learned Trial Judge has convicted the Appellant No. 1 under Section 147 and 302 of the Indian Penal Code (hereinafter referred to as “the IPC”) and has sentenced him to undergo two years imprisonment under Section 147 of the IPC and life imprisonment under Section 302 of the IPC with a fine of Rs. 10,000/- and in default thereof, the Appellant No. 1 has been directed to undergo additional six months rigorous imprisonment. As far as the Appellants No. 2 to 6 are concerned, they have been convicted under Section 147 of the IPC and Section 149 /302 of the IPC and have been sentenced to undergo two years imprisonment under Section 147 of the IPC and life imprisonment under Section 149 /302 of the IPC with fine of Rs. 10,000/- each and in default thereof, they have been directed to undergo further six months rigorous imprisonment. Both the sentences have been ordered to run concurrently.

2. Short facts of the case are that on 24.01.2007, a written report was submitted by Suresh Prasad (the informant) before the Officer-in-Charge, Police Station-Harpur (Adapur, East Champaran), wherein he has stated that he is resident of Harpur and on 24.01.2007 at about 06:30 am in the morning, his elder brother, Shiv Nath Prasad was coming after easing himself and when he had reached at the door of the house of Ram Darshan, Laxman Sah (Appellant No. 1), Awdhesh Sah, Mahanth Sah (Appellant No. 5), Vijay Sah (Appellant No. 3), Ajay Sah (Appellant No. 4), Ram Ekbal Sah (Appellant No. 6), Sanjay Sah, Inar Sah (Appellant No.2) and Ram Sewak Sah had surrounded him, who were sitting there from before. Thereafter, these accused persons had caught hold of the elder brother of Suresh Prasad (informant), namely Shiv Nath Prasad and had started assaulting him as also abusing him. In the meantime, Laxman Sah had given a lathi blow on the forehead of Shiv Nath Prasad, resulting in his elder brother becoming injured and falling down on the ground. Thereafter, the rest of the accused persons had also assaulted him with lathi and fatha, leading to his elder brother becoming unconscious. The witness to the occurrence, namely, Ram Darshan Sah, Santosh Prasad, Vinod Sah, Manoj Prasad and Ram Ekbal Prasad had intervened leading to his life being spared. During the course of intervention, Awadhesh Sah had given a lathi blow on the right hand of Ram Darshan Sah leading to his right hand being fractured, whereafter Mahanth Sah had taken out a sum of Rs. 600/- from the pocket of the elder brother of Suresh Prasad (informant) which he had earned upon selling vegetables. The informant, namely, Suresh Prasad, has further stated that on the previous day i.e. on 23.01.2007 in the night the accused persons, without any reason, had assaulted Shambhu Sah and Biru Kumar badly and injured them, whereafter he had given information about the same to the Officer-in-Charge and then the Office-in-Charge had come in the night and had seen the injured. It has been stated that on account of the said reason, tod