Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 474 (PAT)

State Of Bihar v. Nawal Singh

2007-03-02

CHANDRAMAULI KR.PRASAD, JAYANANDAN SINGH

body2007
Judgment , J. 1. State being aggrieved by the judgment dated 11.2.1988 passed by the Additional Sessions Judge, Begusarai in Sessions Trial No. 29 of 1980 acquitting all the accused persons of the charges levelled against them, have preferred this appeal. 2. During the pendency of the appeal Respondent Nos. 18, 25, 31, 47, 49 and 55 had died and, as such, appeal against them has abated. Further this appeal has been dismissed against respondent nos.1, 5 to 9, 11 to 13, 17, 20, 21, 23, 30, 33 to 36, 38 to 40, 42, 44, 48, 50 to 52, 54 and 60 to G2 for non-compliance of the peremptory orders. Thus, this appeal is confined only against respondent nos. 2 to 4, 10, 14 to 16, 19, 22, 24, 26 to 29, 32, 37, 41, 43, 45, 46, 53, 56 to 59. 3. According to the prosecution on 15.11.1978 at about 10 a.m. a mob of about 400-500 persons which included respondent no. 2 Durga Prasad Singh armed with gun and other accused persons with lathies, Bhala and Bamboos came from the direction of village Nayanagar on tractors, trailers, jeep, tyre-carts and on foot to village Bajitpur and collected at the Kachahri of accused Durga Prasad Singh, respondent no. 2 herein. According to the prosecution, after damaging crops in the field, the accused persons proceeded towards the village Bajitpur and some members of the mob looted the residential house of the villagers, assaulted them, committed rape upon some of the women of the village, demolished the houses and belonging of the villagers. Prosecution story further is that the members of the mob assaulted Jageshwar Sah as a result of which he subsequently died. In the occurrence, according to the prosecution, Jholi Yadav sustained grievous injury as also Paltu Sao from the hands of the members of the mob. It was further alleged that Manju Devi and Radha Devi were subjected to rape and on account of assault on Sugabati Devi, miscarriage took place. Pachia Devi, Urmila Devi and Narsing Sao are also alleged to have been assaulted by the members of the mob. It has been also alleged that several articles including the catties belonging to the villagers of Bajitpur were looted by the members of the mob which were subsequently recovered from their possession. According to the prosecution, the motive of occurrence was that respondent no. It has been also alleged that several articles including the catties belonging to the villagers of Bajitpur were looted by the members of the mob which were subsequently recovered from their possession. According to the prosecution, the motive of occurrence was that respondent no. 2 Durga Prasad Singh wanted to dispossess the villagers of Bajitpur forcibly from the land in their peaceful possession. 4. The injured persons were brought to Rosera Hospital on 16.11.1978. The fardbeyan of Jageshwar Sao, who subsequently succumbed to injury, was recorded by Assistant Sub-Inspector of Police Chhotelal Sao (P.W. 43) in Rosera Hospital which led to registration of Khodawandpur P.S. Case No. 8(11)78. The fardbeyan of Jholi Yadav and Paltu Sah were also recorded in the Hospital by the Assistant Sub-Inspector of Police which had led to registration of Khodawandpur P.S. Case No. 7(11)78 and 9(11)78 respectively. As all the three fardbeyans related to the same occurrence, the Officer-in-charge of the police station took up investigation of all the three cases simultaneously. Ultimately the investigation of the case was handed over to the Criminal Investigation Department and was investigated by P.W. 123 Bhuneswar Pathak, who after investigation submitted charge-sheet against 74 persons and ultimately they were committed to the Court of Sessions. At the time of framing of the charge the trial Court considered the material and finding that there is no sufficient ground for proceeding against three accused persons, they were discharged by order dated 6.9.1980. After the evidence was led six accused persons were acquitted by order dated 15.21984 on the ground that there is no evidence against those accused persons that they had committed the offence. Three accused persons died in course of trial and ultimately 62 persons faced the trial. 5. The accused persons pleaded not guilty to the charges levelled against them and from the trend of the cross-examination as well as from the evidence of defence witnesses their defence seem to be that Jagdeo Prasad Singh, father of respondent no. 2 Durga Prasad Singh had auction purchased more than 500 acres of land at village Bajitpur and had obtained delivery of possession through the process of the Court. In order to manage the cultivation of land he constructed a Kachahri contiguous west of the road where members of the staff were residing. 2 Durga Prasad Singh had auction purchased more than 500 acres of land at village Bajitpur and had obtained delivery of possession through the process of the Court. In order to manage the cultivation of land he constructed a Kachahri contiguous west of the road where members of the staff were residing. Their defence further is that contiguous east of the road infront of the Kachahri in the open land measuring four bighas, a Durga temple was constructed by Jagdeo Prasad Singh in a part thereof and in the major portion cattle fair was used to be held on every Wednesday in which tolls were collected on the sale and purchase of the cattle by aforesaid Jagdeo Prasad Singh. After his death, according to the defence, his son respondent no. 2 Durga Prasad Singh came in possession of the entire land, popularly known as Hat Gachhi, but sometime before the occurrence few villagers became active members of the Communist Party of India and started land grabing movement, led by P.W. 114 Ram Jeevan Thakur, P.W. 110 Umesh Chourasia and P.W. 113 Samim Ahmad. According to their defence these witnesses started propgating that the acquisition of land by Jagdeo Prasad Singh was improper and illegal and accordingly impressed upon the villagers of Bajitpur to unite and take possession of the land. 6. According to their defence on 14.11.1978 a meeting was held in village Bajitpur in which the aforesaid leader participated and on the following day i.e. 15.11.1978, a Wednesday, the day on which fair is held, a mob tresspassed into the Hat Gachhi and a clash took place in which some persons of village Bajitpur received injury and one Ram Sukhit Singh alias Baua was killed. The defence further alleged that attempt was made to loot the Kachahri of respondent no. 2 Durga Prasad Singh, which created a panic in village Bajitpur and when the sympathizers of aforesaid Baua Singh went to the village Bajitpur, they found all the houses vacated and inmates had left the village. The defence further disclosed that the sympathizers of Baua Singh damaged the houses at village Bajitpur. 7. The defence further disclosed that in the morning of 15.11.1978 the staff of respondent no. 2 Durga Prasad Singh came to know about troubles and one of them went to Khodawandpur Police Station and gave a written report. The defence further disclosed that the sympathizers of Baua Singh damaged the houses at village Bajitpur. 7. The defence further disclosed that in the morning of 15.11.1978 the staff of respondent no. 2 Durga Prasad Singh came to know about troubles and one of them went to Khodawandpur Police Station and gave a written report. Thereafter Arjun Choudhary gave another information on the same day at 5 p.m. which led to registration of Khodawandpur P.S. Case No. 4(11)78 against Ramjiwan Thakur, Ram Bahadur Thakur, Samim Ahmad, Sitaram Das and several others. According to the defence nearabout the date on which the occurrence had taken place, election for Parliament was being held from Samastipur Lok Sabha Constituency and aforesaid Ramjiwan Thakur a leader of village Bajitpur and a relation of Shri Karpoori Thakur, the then Chief Minister suppressed the true facts and innocent persons were sent up for trial. 8. Respondent No. 19 Satyendra Singh alias Tennu has also pleaded alibi. According to him by-election of Samastipur Parliamentary Constituency on account of resignation of the seat by Shri Karpuri Thakur on his becoming the Chief Minister, Smt. Tarkeshwari Sinha contested the said seat as Congress(I) candidate and he was the Election Incharge of said Smt. Sinha. According to him on 15.11.1978 at 10 A.M. all the candidates and the representative of all the political parties were invited by the District Magistrate to review the law and order situation during the election and he participated in the said meeting as representative of Congress(I), which meeting continued from 10 A.M. to 12 Noon. 9. To bring home the charge the prosecution had altogether examined 125 witnesses and several documents have been exhibited. Fifteen defence witnesses have also been examined. The trial Court on appraisal of evidence came to the conclusion that prosecution did not prove the charges beyond all reasonable doubt and accordingly acquitted all the accused persons. Appeal preferred against many have been dismissed and the present appeal survives against the respondent aforesaid, hence at the first instance I propose to take up the individual charges levelled against each one of them. 10. Appeal preferred against many have been dismissed and the present appeal survives against the respondent aforesaid, hence at the first instance I propose to take up the individual charges levelled against each one of them. 10. Respondent No. 43 Jagdish Singh besides other accused persons against whom this appeal does not survive either on account of their death or the dismissal of the appeal, were charged for dishonestly retaining a stolen she-goat belonging to P.W. 61 Jag Jeevan Ram punishable u/s. 411 of the Indian Penal Code. In order to bring home this charge prosecution had examined P.W.11 Raghunandan Paswan, P.W. 22 Jagdish Tanti, P.W. 61 Jag Jeevan Ram and the Investigating Officer of the case Bhuneswar Pathak (PW 123). P.W.11 Raghunandan Paswan in his evidence in the Court has not supported the fact that Jag Jeewan Ram (P.W. 61) had in possession of any goat which could be looted away. P.W. 22 Jagdish Tanti had however stated about the recovery of the goats from the house of this respondent but according to his evidence said cattle belonged to P.W.102 Ramsi Ram. Further this witness had disclosed in paragraph 15 of his evidence that he was never examined by the police during the course of investigation. P.W. 61 Jag Jeevan Ram had although stated that goats were looted away which was recovered from the house of this respondent Jagdish Singh for which a seizure list was prepared. However in the cross-examination he had admitted that he did not give any description of looted cattle, before its recovery. In the cross-examination at paragraph 18 this witness had admitted to have stated to the Criminal Investigation Department Inspector that stolen catties were recovered from the house of Ram Sakha Singh. 11. Thus Jag Jeevan Ram the victim of this offence had not given the description of catties to the police, which were recovered from the possession of this respondent. P.W. 11 Raghunandan Paswan had not supported the case of the prosecution that Jag Jeevan Ram possessed cattle. According to P.W. 22 Jagdish Tanti the cattle recovered from the house of this respondent No. 42 Jagdish Singh belonged to Ramsi Ram. Hence the evidence adduced does not prove beyond all reasonable doubt that Jag Jeevan Ram possessed cattle which were stolen and recovered. According to P.W. 22 Jagdish Tanti the cattle recovered from the house of this respondent No. 42 Jagdish Singh belonged to Ramsi Ram. Hence the evidence adduced does not prove beyond all reasonable doubt that Jag Jeevan Ram possessed cattle which were stolen and recovered. It is well settled that to bring home the charge u/s. 411 of the Indian Penal Code the prosecution is required to prove that the catties were stolen. Jag Jeevan Ram P.W. 61 had nowhere stated that his catties were stolen. In the face of it, it cannot be said that the catties recovered from the possession of this appellant was stolen property and hence the charge u/s. 411 of the Indian Penal Code levelled against this respondent has not been proved beyond all reasonable doubt. 12. Respondent No. 45 Arjun Choudhary and respondent no. 59 Sitaram Singh have been charged for causing hurt to Pachia Devi (P.W. 9) punishable u/s. 323 of the Indian Penal Code. In order to bring home this charge prosecution has examined Pachia Devi as PW. 9 and the Dr. D.P. Keshri, who examined her as P.W. 123. P.W. 9 had stated in her evidence that while she was at her Darwaja, the aforesaid respondent assaulted her by means of bamboo causing injury on her thigh and left hand finger. However in paragraph 8 of her deposition she had stated that accused persons when exploded bombs she alongwith the villagers fled towards the village Mangalgarh. She was chased by the mob and to avoid assault did not see back and fled away. She had further stated that while fleeing away she fell down twice. 13. P.W. 122 Dr. D.P. Keshri who examined her found four injuries on her person, which in his opinion were simple in nature caused by some hard blunt substance but he admitted in the cross-examination that those injuries one may sustain on fall. Pachia Devi had stated in her evidence that hearing the explosion she alongwith the villagers fled away and, while fleeing away, she fell down more than once. In the light of this evidence, it cannot be said that these respondents had the occasion to assault her. Further while fleeing away she had fallen down more than once and doctor who examined her has opined that injury found on her person is possible by fall. In the light of this evidence, it cannot be said that these respondents had the occasion to assault her. Further while fleeing away she had fallen down more than once and doctor who examined her has opined that injury found on her person is possible by fall. Aforesaid infirmities lead me to conclude the prosecution has not brought home this charge against respondent no. 45 Arjun Choudhary beyond all reasonable doubt. 14. Respondent No. 45 Arjun Choudhary and Respondent No. 59 Sitaram Singh have also been charged for committing house trespass having made preparation for causing hurt to Pachia Devi, punishable u/s. 452 of the Indian Penal Code. I have found that the prosecution has not been able to prove the charge u/s. 323 of the Indian Penal Code of causing hurt to Pachia Devi, hence charge u/s. 452 of the Indian Penal Code also must fail. 15. Respondent No. 45 Arjun Choudhary also stands charged for committing rape on Manju Devi (P.W. 3), punishable u/s. 376 of the Indian Penal Code. Respondent No. 57 Meghu Mahto has also been charged for abeting offence of rape on said Manju Devi punishable u/s. 370/109 of the Indian Penal Code. In order to bring home this charge prosecution had examined the victim Manju Devi (P.W. 3), P.W. 13, Fouzdar Das, P.W. 73 Dr. Vaidehi Kumari who examined her and P.W. 123 Bhuneswar Pathak the Investigating Officer of the case. 16. P.W. 3 Manju Devi has deposed that a mob of 400-500 persons came from Nayanagar side which included respondent No. 45 Arjun Singh and Respondent No. 57 Meghu Mahto. They entered inside her house, respondent no. 57 Meghu Mahto caught her and pulled her down in the courtyard and Arjun Choudhary committed rape despite her protest. According to her evidence thereafter Respondent No. 57 Meghu Mahto also committed rape and thereafter both fled away. She had also deposed that she saw respondent no. 2 Durga Prasad Singh standing on the road having a gun in his hand. In paragraph 17 of her evidence she had admitted that her father and uncle attempted for the release of the lands situated to the south of her house but Durga Prasad Singh did not agree. She had also deposed that she saw respondent no. 2 Durga Prasad Singh standing on the road having a gun in his hand. In paragraph 17 of her evidence she had admitted that her father and uncle attempted for the release of the lands situated to the south of her house but Durga Prasad Singh did not agree. She has further admitted that her father and uncle had stated that if Durga Prasad Singh gave the land situated to the south of her house, she will not depose in this case. In paragraph 18 of her deposition she had admitted that respondent No. 45 Arjun Choudhary and Respondent No. 57 Meghu Mahto used to look after the properties of Durga Prasad Singh at Bajitpur. She has also admitted that these respondents had prohibited her from cutting the grass in the field of Durga Prasad Singh, since two to four months. The victim girl had stated in her evidence that because of the rape committed on her, she had severe pain in her vagina and had started bleeding. Further according to her, respondent No. 45 Arjun Choudhary cut her cheeks by teeth causing bleeding injury. 17. P.W. 73 Dr. Vaidehi Kumari had stated in her evidence that on 20.11.1978 at 11.45 A.M., she had examined Manju Devi but had not found any positive sign of rape on her person. She had also stated that no mark of violence such as scratch and cut was found on any part of her body. She went to the extent of saying that Manju Devi did not complain of any pain on any part of her body, rather she was found smiling. No swelling on her person was either found or shown by Manju Devi. 18. P.W.13 Fauzdar Das has stated in his evidence that on being questioned, Manju Devi stated that she was subjected to rape by respondents Arjun Choudhary and Meghu Mahto. P.W.123 Bhuneswar Pathak the Investigating Officer of the case had stated that this witness had never disclosed during the course of investigation about the commission of rape upon Manju Devi by any particular person. 19. P.W.123 Bhuneswar Pathak the Investigating Officer of the case had stated that this witness had never disclosed during the course of investigation about the commission of rape upon Manju Devi by any particular person. 19. Thus, from the evidence of the victim lady, it is evident that there was dispute with Durga Prasad Singh in regard to the land situated to the south of her house and these respondents used to look after his property who had prohibited the victim from cutting the grass from the field of said Durga Prasad Singh. The doctor who had examined her had found no sign of rape or any kind of injury on her person, although the victim had clearly stated that she sustained scratch and cut mark on her person. Further the victim in her evidence had stated about the severe pain, caused on account of rape but no such complain was made to the doctor. P.W.13 Fouzdar Das had stated about the rape on Manju Devi by these respondents but no such allegation was made by him before the police during the course of investigation. 20. From the discussion aforesaid, it is evident that the victim girl had grievance against Durga Prasad Singh and these respondents were his employee. The evidence of the victim girl is not at all supported by the doctor who had examined her and omission on part of P.W.13 Fauzdar Das to disclose this allegation during the course of investigation leads me to conclude that Manju Devi has been set up to implicate these respondents in the false case due to land dispute. Accordingly, I come to the conclusion that this charge against these respondents have not been proved beyond all reasonable doubt. 21. Respondent No. 45 Arjun Choudhary and Respondent No. 57 Meghu Mahto have also been charged for the offence of committing house trespass by entering into the house of Manju Devi in order to commit offence of rape, punishable u/s. 450 of the Indian Penal Code. On appraisal of evidence I have found that the charge of rape and abetment to commit rape against these respondents have not at all been proved. Hence charge u/s. 415 of the Indian Penal Code automatically fails. 22. Respondent No. 46 Teran Singh and Respondent No. 57 have been charged for causing hurt to P.W.18 Pramila Devi punishable u/s. 323 of the Indian Penal Code. Hence charge u/s. 415 of the Indian Penal Code automatically fails. 22. Respondent No. 46 Teran Singh and Respondent No. 57 have been charged for causing hurt to P.W.18 Pramila Devi punishable u/s. 323 of the Indian Penal Code. She was examined by P.W. 116 Dr. Pramod Kumar Singh. 23. P.W. 18 Pramila Devi had stated in her evidence that she was assaulted by the aforesaid respondent by Lathi but in her examination-in-chief she has not stated in which part of the body she sustained injuries. In the cross-examination she has admitted that after the explosion took place she alongwith the villagers fled away from the village. Dr. Pramod Kumar Singh (P.W. 116) who examined her had found no apparent injury on her person. In my opinion, when this respondent has stated that she fled away after explosion there was no occasion for these respondents to assault her. Further the doctor had not found any injury on her person. Aforesaid infirmities lead me to conclude that the prosecution has not been able to prove this charge beyond all reasonable doubt. 24. Respondent No. 46 Teran Singh and Respondent No. 57 Meghu Mahto have also been charged for the offence punishable u/s. 452 of the Indian Penal Code for committing house trespass, having made preparation to cause hurt to P.W.18 Pramila Devi. The charge of causing hurt to said Pramila Devi has not been proved beyond all reasonable doubt and hence charge u/s. 452 of the Indian Penal Code levelled against them also fails. 25. Respondent No. 57 Upendra Rai beside another accused whose appeal does not survive were charged for offence punishable u/s. 323 of the Indian Penal Code for causing hurt to P.W. 53 Narsing Sao. In order to bring home this charge beside the injured, prosecution had examined P.W.116 Dr. Pramod Kumar Singh, who had examined him. 26. P.W. 53 had stated in her evidence that respondent no. 53 Upendra Rai assaulted him by means of Lathi on the right portion of his body as a result of which he sustained injuries on his little finger. He had further deposed that as soon as he saw a mob coming towards her house, he fled away and while he was fleeing away he fell down thrice and sustained injuries on his knee, hand and waist. He had further deposed that as soon as he saw a mob coming towards her house, he fled away and while he was fleeing away he fell down thrice and sustained injuries on his knee, hand and waist. P.W.116 Pramod Kumar Singh who had examined him has found injuries on his thigh, waist and right wrist but had opined that those injuries may occasion due to fall. 27. In the face of the evidence of P.W. 53 Narsing Sao that after he saw the mob coming towards his house, he fled away towards Mangalgarh side and fell down thrice pursuades me to hold that he did not sustain the injuries in the manner as alleged by the prosecution. Hence charge u/s. 323 of the Indian Penal Code against respondent no. 53 Upendra Rai fails. 28. Respondent No. 56 Umesh Singh and respondent No. 57 Meghu Mahto have been charged u/s. 313 of the Indian Penal Code for causing miscarriage to P.W. 8 Sugawati Devi. In order to bring home this charge prosecution relies on her evidence as also the evidence of P.W. 73 Dr. Vaidehi Kumari, who had examined her. According to the evidence of Sugawati Devi, the mob entered the village, started ransacking it and 10 to 12 members of the mob entered in her house which included the aforesaid respondents. They assaulted her by leg and fists and after she fell down, these respondents gave lathi blows. According to her, she was two to three months pregnant and as a result of assault, pain started in her uterus and ultimately led to miscarriage in the evening. According to her she went to her Naihar (parents home) from where she returned after nine to ten days. 29. As regards the manner of assault she had given different versions. She has stated that after the aforesaid respondents entered in her house, she was assaulted by means of leg and fists and thereafter with Bhala and Farsa which they were carrying. Then she changed her statement and deposed that she was assaulted by Lathi portion of Farsa and Bhala and then again changed her version and stated that she was assaulted by Hur portion of the Lathi by these respondents. 30. P.W. 73 Dr. Vaidehi Kumari had examined her on 20.11.1978 at 11.28 A.M. and not found any sign of abortion on her person. 30. P.W. 73 Dr. Vaidehi Kumari had examined her on 20.11.1978 at 11.28 A.M. and not found any sign of abortion on her person. This doctor had clearly stated that in case of miscarriage some sign of abortion is bound to be found on the person of the victim, even if examined after 8 to 9 days of the abortion. The Investigating Officer of the case Bhuneswar Pathak (P.W. 123) had stated that Sugawati Devi during the course of investigation has stated that these respondents had assaulted her with leg and fists. 31. Thus there is material contradiction in regard to the manner in which Sugawati Devi was assaulted by these respondents which led to miscarriage. Further the doctor had not found any sign of abortion, which in her opinion was bound to be present even if the victim is examined after eight to nine days of the occurrence. From the discussion aforesaid, it is evident that the prosecution has miserably failed to prove that Sugawati Devi was assaulted by these respondents which led to miscarriage. Hence charge u/s. 313 of the Indian Penal Code levelled against respondent no. 56 Umesh Singh and respondent no. 57 fails. 32. It is relevant here to state that the Court below on appraisal of evidence has come to the conclusion that the charges levelled against the aforesaid persons have not been proved beyond all reasonable doubt. It is well settled that this Court in an appeal against the judgment of acquittal does not interfere with the same, even if it is found that other view is possible. Here on appraisal of evidence, I am of the opinion that only view possible is the view taken by the trial Court that the prosecution had not been able to bring home the charges against the aforesaid respondents beyond all reasonable doubt. In fairness to Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, he in fact did not challenge the acquittal of the aforesaid respondents for the charges levelled against them and discussed above. 33. Respondent No. 2 Durga Prasad Singh has been individually charged u/s. 148 of the Indian Penal Code, while the rest of the accused persons have been charged u/s. 147 of the Indian Penal Code for committing rioting after forming unlawful assembly having common object to take forcible possession of the land in peaceful possession of the villagers of Bajitpur. 33. Respondent No. 2 Durga Prasad Singh has been individually charged u/s. 148 of the Indian Penal Code, while the rest of the accused persons have been charged u/s. 147 of the Indian Penal Code for committing rioting after forming unlawful assembly having common object to take forcible possession of the land in peaceful possession of the villagers of Bajitpur. From the evidence of P.W. 3, Manju Devi, P.W. 4 Kalicharan Sao, P.W. 14 Biltania Devi, P.W. 41 Tiko Paswan, P.W. 66 Tetri Devi, P.W. 70 Shyam Sharma, P.W. 72 Jholi Yadav and P.W. 86 Ram Dulari Devi, it is evident that 500 Acres of land of Village Bajitpur was acquired by the father of respondent no. 2 Durga Prasad Singh in Court auction and he came in physical possession, which continued till the date of occurrence. It has further come in evidence that in a portion of land so acquired, Durga Prasad Singh was holding Hat which was protested by the villagers. Jagdish Prasad Singh father of Durga Prasad Singh constructed Kachahri in that village for managing the cultivation work. He died 15-16 years before the occurrence and thereafter respondent no. 2 Durga Prasad Singh came in its possession. From their evidence it is evident that the lands in fact were in peaceful cultivating possession of Durga Prasad Singh and not in possession of raiyats. Once it is held so the charge that the respondents were member of the unlawful assembly, the common object whereof was to take forcible possession of land belonging to villagers of Bajitpur cannot be substantiated. Hence charge u/s. 147 of the Indian Penal Code, levelled against all the accused persons and charge u/s. 148 of the Indian Penal Code levelled against respondent no. 2 Durga Prasad Singh fail. 34. All the accused persons have been charged u/s. 120B of the Indian Penal Code for conspiring to take forcible possession of the land in possession of the tenants of village, Bajitpur and for ransacking the entire village, houses, commiting murder, assault, rape, theft, house trespass, miscarriage and damage to their properties. The admission made by prosecution witnesses actually go to suggest that the prosecution party intended to dispossess respondent no. 2 Durga Prasad Singh from Hatgachi. The admission made by prosecution witnesses actually go to suggest that the prosecution party intended to dispossess respondent no. 2 Durga Prasad Singh from Hatgachi. It is evident from the evidence of the prosecution witnesses that predecessor-in-interest of Durga Prasad Singh had acquired the property and was in possession thereof and thereafter this respondent came in possession of the property. He used to hold a cattle fair thereon, which was protested by the villagers. Their admission in fact go to suggest that some of the villagers were bent upon to dispossess respondent no. 2 Durga Prasad Singh from the land of village Bajitpur. The prosecution has not brought on record any direct or circumstantial evidence to support the charge of conspiracy against the accused persons. Hence the charge u/s. 120B of the Indian Penal Code fails. 35. All the accused persons have been charged of being the member of unlawful assembly having common object to commit mischief by damaging the property and theft, punishable u/s. 427/149 of the Indian Penal Code. Further the common object of the unlawful assembly was to take forcible possession of the land of the raiyats of village Bajitpur which were in their cultivating possession. I have considered the evidence with regard to the claim of possession and found possession of accused Durga Prasad Singh over the land and hence the common object mentioned in the charge that accused intended to take forcible possession of the land in peaceful cultivating possession of the raiyats of the village is not at all proved. Common object of taking forcible possession having not been proved, the respondents cannot be said to be the member of unlawful assembly and hence cannot be convicted for offence u/s. 427/149 of the Indian Penal Code. 36. It is relevant here to state that all the accused persons have also been charged for offence u/s. 380/149 of the Indian Penal Code. Having found that the common object of the assembly was not unlawful, the respondents cannot be said to be the member of the unlawful assembly and hence charge u/s. 380/149 of the Indian Penal Code is not substantiated. 37. According to the prosecution Jageshwar Sah was murdered by Nawal Singh, a member of the unlawful assembly, besides the respondents in furtherance of their common object punishable u/s. 302/149 of the Indian Penal Code. 37. According to the prosecution Jageshwar Sah was murdered by Nawal Singh, a member of the unlawful assembly, besides the respondents in furtherance of their common object punishable u/s. 302/149 of the Indian Penal Code. In order to bring home this charge prosecution has relied on the evidence of P.W. 2 Kanchania Devi, the wife of deceased Jageshwar Sao. It is relevant here to state that Jageshwar Sao gave statement in regard to the incident on 16.11.1978 at 10.30 hours before P.W. 43 Chotelal Sao, the Assistant Sub-Inspector of Police. Said Jageshwar Sao died subsequently. His statement is on record as Exhibit 7/A. Jageshwar Sao died later on. His statement gave the cause of death, hence same is fit to be treated as dying declaration. To bring home this charge the prosecution relies on only one eye-witness P.W. 2 Kanchania Devi, the dying declaration, the post mortem report (Ext. 9) and the evidence of Dr. Brahmadeo Prasad (P.W. 112) who had conducted post mortem examination. 38. Dr. Brahamanand Prasad (P.W. 112) who had conducted post mortem examination on the dead body of Jageshwar Sah on 18.11.1978 found the following ante mortem injury on his person: "(i) One bandage was wrapped round his head and chin on removing it, one lacerated wound 1 1/2 " x 1/2" on the middle of vault of front temporal junction on right side was found. On opening the skull, blood clots were present on the right cerebral hemisphere on the brain. (ii) One bandage with cotton and wooden was wrapped round wound of the left upper arm. On removing the bandage, fracture of left (humerous bone at its upper end was seen. No mark of external injury present. (iii) One swelling with lacerated wound of size 3/4" x 3/4" on outer portion of right elbow. (iv) One bandage was wrapped round the right knee. On removal of the bandage, an incised wound 11/2" x 1/ 2" was found on outer portion of right knee. Blood clots were seen present round about the margins wound. (v) One lacerated wound 1/2" x 3/ 4" on front of right knee, just below the patella bone. (vi) One swelling 2 1/2" x 2 1/2" on outer portion of the right ankle was found. (vii) One stitched wound with two stitches present and covered with bandage on the inner side and lower portion of the left leg. (v) One lacerated wound 1/2" x 3/ 4" on front of right knee, just below the patella bone. (vi) One swelling 2 1/2" x 2 1/2" on outer portion of the right ankle was found. (vii) One stitched wound with two stitches present and covered with bandage on the inner side and lower portion of the left leg. The stitched wound was 1" long and ran vertically below the said limb." 39. In the opinion of the doctor injuries No. 1 to 3, 5 and 6 were caused by some hard and blunt substance, may be Lathi and Paina, whereas injury No. 4 was caused by some sharp weapon like Bhala. According to the doctor death had taken place due to shock and haemorrhage on account of the injuries found on the person of the deceased. He further opined that injury Nos.1 and 2 were sufficient in ordinary course of nature to cause death. From the aforesaid injury found on the person of the deceased, it is evident that he died a homicidal death. 40. According to the dying declaration of Jageshwar Sao on the date of occurrence at about 9-10 A.M. while he was plucking bamboo leaves, a mob of about 15 to 20 persons armed with Lathi, Bhala and Farsa reached there and enquired the name of his village. He disclosed that he is resident of village Bajitpur, whereupon the mob started assaulting him. According to the dying declaration the son of Bhola Singh, whose name he did not know, assaulted him by means of Bhala and other unidentified accused persons assaulted him by Lathi and Bhala. Due to the assault, according to the dying declaration, Jageshwar Sao sustained injuries on left arm, left leg and right leg. He fell down in the ditch, and became senseless. The accused persons, according to the dying declaration, were the residents of village Nayagaon. According to him he was brought to the Rosera Hospital in a jeep by Respondent No. 56 Umesh Singh. 41. P.W. 2 Kanchania Devi had stated in her evidence that while she was plucking bamboo leaves alongwith her husband, a mob variously armed came from Nayanagar side in which she could identify Durga Prasad Singh, armed with gun. According to her evidence 5 to 10 persons reached at the place where she was plucking bamboo leaves and other went to village Bajitpur. According to her respondent no. According to her evidence 5 to 10 persons reached at the place where she was plucking bamboo leaves and other went to village Bajitpur. According to her respondent no. 2 Durga Prasad Singh was standing on the road and accused Nawal Singh armed with Bhala, Respondent No. 45 Arjun Choudhary armed with Bhala, accused Bodhu Singh armed with lathi came near her husband and assaulted him. According to her evidence she did not stay there and left for the village in search of her son where he saw mob engaged in looting the village. Thereafter according to her evidence she proceeded to village Bariara in search of her son but he was not found there. She returned to the bamboo-clump where her husband was assaulted and found that the members of the mob had taken away her husband. 42. In the cross-examination she had admitted that due to old age she had lost her eye-sight. She had further deposed that bamboo-clumps where her husband received injuries is contiguous east of hatgachi and hatgachi is located south of Katchahri intervened by road running from north to south. However, according to the Investigating Officer P.W. 123 Bhuneswar Pathak during the course of investigation this witness showed a different place, where the occurrence had taken place. 43. The Court below on appraisal of evidence came to the conclusion that the prosecution has not been able to prove beyond all reasonable doubt that Jageshwar Sao was murdered in the manner disclosed by the prosecution. 44. Mr. Lala Kailash Bihari Prasad, appearing in support of the appeal contends that for bringing home the charge u/s. 302/149 of the Indian Penal Code, prosecution is not required to prove the act of individual accused persons. He submits that in a case in which accused persons are charged for offence u/s. 302/149 of the Indian Penal Code, it is not necessary to prove the exact place where the occurrence had taken place. He submits that in a case in which accused persons are charged for offence u/s. 302/149 of the Indian Penal Code, it is not necessary to prove the exact place where the occurrence had taken place. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Mohinder Singh and Others V/s. State of Punjab, 2006 3 SCC(Cri) 578 and our attention has been drawn to the following passage from paragraph 25 of the judgment, which reads as follows: "If the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not." 45. Reliance has also been placed on the decision of the Supreme Court in the case of Lalji V/s. State of U.P., AIR 1989 SC 754 and our attention has been drawn to the following passage from paragraph 9 of the judgment, which reads as follows: "Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offence as the members of unlawful assembly knew to be likely to be committed in prosecution of that object." 46. Mr. Bhupendra Narain Sinha, who led argument on behalf of the respondents, however, contends that in a case in which the prosecution has come out with the definite story that Jageshwar Sao was murdered at the Hatgachi and that having not been proved, the prosecution has to fail. 47. Having appreciated the rival submission, I do not find that the submission of Mr. Prasad has any application in the facts of the present case. 47. Having appreciated the rival submission, I do not find that the submission of Mr. Prasad has any application in the facts of the present case. There may be a case in which the magnitude of the crime is so immense and so wide that it may not be possible for the prosecution to prove the specific place where the fatal injury is caused and specific overt act of individual accused persons and all may be held guilty on the principle of vicarious liability created u/s. 149 of the Act. However, in a case in which prosecution has come out with a specific case that Jageshwar Sao was murdered at the Hatgachi, it has to prove that. It is well settled that prosecution has to prove the story beyond all reasonable doubt, which it has unfolded. 48. According to P.W. 2 Kanchania Devi the occurrence has taken place at Hatgachi whereas from the evidence of the Investigating Officer P.W.123 Bhuneswar Pathak it is evident that she had shown another place to him where the occurrence had taken place. Thus, there is vital contradiction in regard to the place where occurrence had taken place. Further from the dying declaration, it is evident that the deceased had not identified any person excepting the son of Bhola Singh whose name also he did not know. It is relevant here to state that P.W. 2 Kanchania Devi in her evidence has stated that she was plucking bamboo leaves alongwith her husband but in the dying declaration the deceased has not stated about the presense of his wife Kanchania Devi. Kanchania Devi had also deposed that after her husband was assaulted she left him and went to the village Bajitpur in search of her son where he saw mob engaged in looting the village. According to her evidence, when she did not find the son in the village, she proceeded to village Bariara in search of her son and thereafter returned to the bamboo clump where her husband was assaulted and found her husband missing and taken away by the members of the mob. According to her, on the next date she went to the hospital where her husband was admitted. This conduct of P.W. 2 Kanchania Devi seems absolutely unnatural. According to her, on the next date she went to the hospital where her husband was admitted. This conduct of P.W. 2 Kanchania Devi seems absolutely unnatural. It is unnatural that the wife would leave the husband in injured condition and proceed to the village in search of her son and then to another village. It is not her case that she left her husband in injured condition on account of fear or threat of the accused persons. The conduct of P.W. 2 Kanchania Devi in showing different place as the place of incident and further her conduct aforesaid clearly go to show that the claim made by her to be eye-witnesses to the occurrence is not worth acceptance. 49. Not only this, there is serious contradiction in the evidence of P.W. 2 Kanchania Devi in court and before the Investigating Officer. Although during the course of investigation this witness had not stated that accused Tenu assaulted the deceased which would be evident from paragraph 83 of the evidence of Investigating Officer P.W. 120 Sheo Shankar Jha. Further during the course of investigation she has stated about the arrival of 25 persons armed with Lathi and Bhala and assault on her husband, while during the course of trial she had stated about the arrival of 10 accused persons. These contradictions also create doubt to her claim of being eye-witness to the occurrence. 50. There is yet another infirmity in the case of the prosecution. According to the dying declaration as also the evidence of P.W. 2 Kanchania Devi, Jageshwar Sao was assaulted in the Hat Gachhi and not in the field, which was attacked by the mob. According to the dying declaration only 15 to 20 persons had gone there, whereas according to the evidence of Kanchania Devi only 10 persons had gone there. From the dying declaration it is further evident that none of the accused persons who had gone to the bamboo clump even knew Jageshwar Sao as the mob inquired from him the place of his residence. Durga Prasad Singh had got huge property at village Bajitpur and therefore it cannot be accepted that the deceased did not know him from before. Name of Durga Prasad Singh does not find place in dying declaration. Durga Prasad Singh had got huge property at village Bajitpur and therefore it cannot be accepted that the deceased did not know him from before. Name of Durga Prasad Singh does not find place in dying declaration. Thus, it cannot be said that Jageshwar Sao was assaulted by the members of the mob consisted of 62 accused persons including the respondents in prosecution of that common object. Once it is held so it has to be held that the prosecution failed to bring home the charge u/s. 302/ 149 of the Indian Penal Code. 51. It is relevant here to state that all the time Mr. Prasad emphasised that in case of mob violence if an accused is identified by more than two persons, such accused deserve to be convicted. He submits that if two or more witnesses identify accused persons in a mob, they come within the mischief of Sec. 149 of the Indian Penal Code and liable for conviction. In fact he has taken us to the evidence of the witnesses and contends that each of the respondents have been identified by two or more witnesses. I am of the opinion that the aforesaid principle has no application in the facts and circumstances of the case. I have found that the prosecution has not been able to prove its case beyond all reasonable doubt. The manner of occurrence, the place of occurrence and further that Jageshwar Sah was murdered in, furtherance of the common object by the members of the unlawful assembly, have not all been proved. Thus the identification of the accused by two or more persons loses its significance. 52. To put the record straight Mr. Sinha had contended that the judgment of acquittal is based on sound reason and hence same is not fit to be interfered with by this Court in appeal. Mr. Prasad; however, contended that in appeal against the judgment of acquittal this Court possesses power to reappraise evidence and come to its own conclusion. 52. To put the record straight Mr. Sinha had contended that the judgment of acquittal is based on sound reason and hence same is not fit to be interfered with by this Court in appeal. Mr. Prasad; however, contended that in appeal against the judgment of acquittal this Court possesses power to reappraise evidence and come to its own conclusion. In my opinion, power of the High Court to reassess the evidence and reach its own conclusion in an appeal against acquittal are as wide as in an appeal against the order of conviction but as a rule of prudence this Court interferes with the judgment of acquittal only when it is found that the conclusion drawn by the trial Court on the evidence on record is unreasonable, perverse or unsustainable. In the present case the conclusion arrived at by the trial Court while recording the judgment of acquittal, in my opinion, is the only view possible in the state of evidence on record. In any view of the matter, the conclusion arrived at by the trial Court at worse is a possible view, therefore on any count the judgment of acquittal does not deserve to be interfered with by this Court in the present appeal. 53. Accordingly, I do not find any merit in the appeal and it is dismissed accordingly. Jayanandan Singh, J. 54 I agree.