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2016 DIGILAW 3140 (ALL)

SHREE PAL v. STATE OF U. P.

2016-09-14

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT By the Court.—The arguments of this appeal concluded on 14.9.2016. Following order was passed by us on that date: “Heard Shri Viresh Mishra, Senior Advocate assisted by Shri Sandeep Kumar Dubey, learned counsel appearing on behalf of the appellants and Shri A.N. Mulla, learned AGA for the State. We will give reasons later but we make the operative order now. The appeal is allowed. The impugned judgment and order dated 2.5.1983 passed by the Vth Additional Sessions Judge, Aligarh in Sessions Trial No. 415 of 1980, arising out of Case Crime No. 6 of 1980; State v. Shree Pal and others, convicting the appellants, Shree Pal and Girraj under Sections-147, 307/149 and 324/149 I.P.C. and sentencing them to one year’s R. I. on the first count, seven years’ R. I. on the second count and two years’ R. I. on the third count respectively is hereby set aside. The appellants Shree Pal and Girraj are acquitted of all the charges framed against them. Since the appellants are on bail, their bail bonds are cancelled and their sureties discharged. There shall be no order as to cost.” Here are the reasons : 2. The instant Criminal Appeal was initially preferred by five accused persons but was maintainable at the instance of first four appellants Shree Pal, Girraj, Rukum Pal and Bhudeo while Sheoraj Singh-appellant No. 5 was declared juvenile by the trial Court and accordingly he was not sent to jail but appropriate orders were passed for maintaining good behaviour for three years, under the supervision of concerned Information/Probation Officer, Aligarh, therefore, the present appeal is confined only in respect of aforesaid four appellants. 3. Appropriate to mention that during the course of appeal the other two accused persons-namely, Rukum Pal and Bhudeo expired, therefore, their appeal stood abated against them vide order of this Court dated 27.7.2016. Now we are left with merit of only two appellants Shree Pal and Girraj. 4. 3. Appropriate to mention that during the course of appeal the other two accused persons-namely, Rukum Pal and Bhudeo expired, therefore, their appeal stood abated against them vide order of this Court dated 27.7.2016. Now we are left with merit of only two appellants Shree Pal and Girraj. 4. This Criminal Appeal is directed against the judgment and order of conviction dated 2.5.1983 passed by Court of Additional Sessions Judge Vth, Aligarh in Sessions Trial No. 415 of 1980, under Sections 302, 307, 147, 148, 149 IPC, Police Station-Akrabad, District Aligarh arising out of Case Crime No. 6 of 1980, State v. Shree Pal and others, whereby Rukum Pal and Bhudeo have been sentenced to one year R.I. each under Section 147 IPC, sentenced to life imprisonment under Section 302/149 IPC, sentenced to 7 years R.I. each under Section 307/149 IPC and sentenced to 2 years R.I. each under Section 324/149 IPC. Similarly, appellants Girraj and Shree Pal have been sentenced to one year R.I. each under Section 147 IPC, sentenced to 7 years R.I. each under Section 307/149 IPC and two years R.I. each under Section 324/149 IPC. The aforesaid sentences to run concurrently. 5. Heard Sri Viresh Mishra, learned Senior Advocate assisted by Sri Sandeep Kumar Dubey, learned counsel appearing on behalf of the appellants and Sri A.N. Mulla, learned AGA for the State. 6. Prosecution story as unfolded by first information report-Exhibit Ka-1-lodged by Bhagwan Singh son of Uttam Singh, R/o Village-Kishanpur, Police Station-Akrabad, District Aligarh, on 12.1.1980 at 10.15 a.m. against five accused persons including the present appellants-Shree Pal and Girraj with allegations that informant’s brother Roop Singh has been using tap water for about twenty years whose water flows down the drainage in the street outside his house. This water also flows in front of room of Rukam Pal Singh son of Jodh Singh, which lies to the western side of the street. In the morning of 12.1.1980 around 6.30-7.00 a.m. Shree Pal son of Bhudeo Singh and Girraj son of Anek Singh, raised clay barrier and stopped flow of water (from drainage of Roop Singh), whereupon Ramdevi wife of Roop Singh, Malkhan, Pooran Singh son of Bhagwan Singh and Roop Singh son of Uttam Singh arrived on the spot and asked them not to raise clay barrier, whereupon they (accused) started abusing them. As soon as, the informant side tried to remove the clay barrier, when Rukam Pal son of Jodh Singh, Bhudev Singh son of Khyaliram exhorted ‘maaro salo ko’, whereupon Sheoraj Singh son of Rookam Pal Singh fired 3-4 times from SBBL gun. First shot hit Ramdevi wife of Roop Singh. She died on the spot and pellet injury was also caused to Malkhan and Poorn Singh son of Bhagwan Singh. In the meanwhile, various persons including Sheoraj Singh son of Ranchur Singh and other villagers also arrived on the spot and saw the incident. Dead body of Ramdevi was lying on the spot while injured Malkhan Singh and Pooran Singh have been brought by bullock-cart to the police station. Report be lodged and action be taken. Contents of this written report were taken in the concerned check FIR at Crime No. 6 of 1980, under Sections 147, 148, 149, 302, 307 IPC, Police Station-Akranbad, District Aligarh on 12.1.1980 at 10.15 a.m. Check FIR is Exhibit ka-4. 7. On the basis of aforesaid entries in Check FIR, a case was registered against the accused persons at Serial No. 17 in the General Diary dated 12.1.1980 at aforesaid crime number under aforesaid Sections of IPC at aforesaid police station. The relevant G.D. Entry is Exhibit Ka-5. Investigation of the case ensued and Sri Brajwasi Lal P.W.7 took over the investigation. He prepared site plan of the place of occurrence and also recorded statement of various persons, prepared inquest report of deceased Ramdevi and took clay roll, simple and blood stained from the spot-Exhibit Ka-8. Besides, he also took blood stained cloths of Malkhan Singh and Pooran Singh and prepared memo of the same Exhibit Ka-10. 8. It is reflected from record that inquest of deceased Ramdevi was held on 12.1.1980 and it was completed around 3 p.m. Inquest witnesses were appointed by the Investigating Officer and in the opinion of the inquest witnesses, it was thus decided to send the dead body for post-mortem examination for ascertaining the real cause of death. Inquest report is Exhibit Ka-7. Thereafter relevant papers were prepared for sending the dead body for post-mortem examination. Post-mortem examination of deceased Ramdevi was conducted at mortuary, Aligarh on 13.1.1980 at 3.45 p.m. by Dr. Inquest report is Exhibit Ka-7. Thereafter relevant papers were prepared for sending the dead body for post-mortem examination. Post-mortem examination of deceased Ramdevi was conducted at mortuary, Aligarh on 13.1.1980 at 3.45 p.m. by Dr. A.K. Sharma P.W.10, who found the following ante-motem injuries : Ante-mortem Injuries (1) Forty gun-shot wounds of entry front of left shoulder, outer surface of left upper arm and outer surface of upper part of left forearm on an area of 18" x 5" size of wound 1/10" x 1/10" skin deep five shot recovered in skin of arm. (2) Multiple Gun-shot wound of entry (20) in an area of 10"x5 “ front of upper part of chest size. 1/10” x 1/10" x cavity deep. Cause of death was reported to be due to shock and haemorrhage as a result of ante-mortem injuries. Post-mortem examination report is Exhibit Ka-14. Record further reflects that two injured Pooran Singh and Malkhan Singh were medically examined at PHC, Akrabad on 12.1.1980 at 10.40 a.m. and 11.10 a.m., respectively by Dr. Pradeep Kumar P.W.8. On the person of injured Pooran Singh, the following injuries were noted : (1) one lacerated wound on the forehead just above root of nose 1 cm x .5 cm x muscle deep. (2 cm above root and nose) (2) Lacerated wound one left side of face just near to left nostril .5 cm x .5 cm. Blackening seen around the wound. (3) Three gunshot wounds on the right side shoulder in the front. Each wound measuring .7 cm x .7 cm bleeding, blackening seen around the wounds. The distance in between the each wound 10 cm. (4) A lacerated wound on the dorsal surface of middle of middle finger of left hand horizontally obliqe 2.5 cm x .5 cm. Conclusion : Injury No. 1 caused by hard and blunt object. Injury No. 2 and 3 caused by firearm and injury No. 4 caused by hard and blunt object. Injury No. s 1 and 4 were stated to be simple in nature and injury Nos. 2 and 3 kept under observation and advised X-ray and patient referred to M.S. Hospital for expert opinion and treatment. Duration was stated to be fresh. On the person of injured Malkhan Singh, the following injuries were noted : (1) Multiple gunshot wounds all over the forehead and left side of temporal region about twelve in number. 2 and 3 kept under observation and advised X-ray and patient referred to M.S. Hospital for expert opinion and treatment. Duration was stated to be fresh. On the person of injured Malkhan Singh, the following injuries were noted : (1) Multiple gunshot wounds all over the forehead and left side of temporal region about twelve in number. Each wound measuring .3 cm x .3 cm-Blackening present around the wounds. (2) Echymosis with swelling on right eye covering upper and lower lid 5 cm x 4 cm. colour-blusih. (3) Echymosis with swelling on lower lid of left eye 4.5 cm x 2.5 cm. Colour-blue. G.C.-low, Pulse-150 per minute. Patient referred to M.S. Hospital, Aligarh for expert opiinion and treatment. Duration fresh. Conclusion-Injury No. 1 caused by firearm and injury Nos. 2 and 3 may be caused by firearm by hard blunt object. Advised X-ray of both orbital region. All the three injuries kept under observation for determination of nature of injury and advised X-rays and patient referred to M.S. Hospital, Aligarh for expert opinion and treatment. Both the injury reports are Exhibit Ka-2 and Ka-3, respectively. 9. The investigating Officer (Brajwasi Lal-P.W.7) also took various other steps and thereafter the investigation was taken over by another Investigating Officer namely Shyamveer Singh-P.W.9, on 15.1.1980. He, besides, taking statement of various witnesses, has also filed charge-sheet, vide Exhibit Ka-11. 10. Thereafter, this case was committed to the Court of Sessions, from where, it was made over for trial and disposal to the aforesaid Court of Additional Sessions Judge Vth, Aligarh, who heard the appellants on the point of charge and prima facie ground was found existing for framing charges under Sections 147, 302/149, 307/149, 324/149 IPC. Sheoraj (juvenile) was separately charged under Sections 148, 302, 307 and 324 IPC. The charges were read over and explained to the accused, who abjured charges and opted for trial. 11. Thereafter, the prosecution was asked to adduce its testimony, whereupon the prosecution examined as many as ten witnesses on its behalf. Brief sketch of the same is being made herein below: Bhagwan Singh P.W.1 is the first informant and the eye-witness of the incident. He has lodged written report Exhibit Ka-1. Pooran P.W.2 is injured eye-witness and has described about the incident. He is son of P.W.1 Bhagwan Singh. Malkhan Singh P.W.3 is also injured eye-witness. Brief sketch of the same is being made herein below: Bhagwan Singh P.W.1 is the first informant and the eye-witness of the incident. He has lodged written report Exhibit Ka-1. Pooran P.W.2 is injured eye-witness and has described about the incident. He is son of P.W.1 Bhagwan Singh. Malkhan Singh P.W.3 is also injured eye-witness. He has also testified on the same line as Pooran P.W.2. Shyodan P.W.4 is also eye-witness of the incident and has narrated the incident in his testimony. Constable Sri Krishna P.W.5 is the formal witness and has conveyed over, the dead body of Ramdevi, to the hospital and has proved the process. 12. Dr. S.B. Sharma P.W.6 is the formal witness, who examined injured Pooran Singh and Malkhan Singh at PHC Akarabad on 12.1.1980 at 10.40 a.m. and 11.10 a.m., respectively and noted injuries found on their persons and has proved these injury reports as Exhibits Ka-2 and Ka-3, respectively. 13. Sri Brajwasti Lal P.W.7, the Investigating Officer has conducted investigation of this case at initial stages and has proved several prosecution papers, Check FIR, Exhibit Ka-4., the relevant GD entry for registering case against accused as Exhibit ka-5. He also made site plan of the occurrence and has proved it as Exhibit ka-6. He also processed inquest of deceased Ramdevi and proved it as Exhibit Ka-7. Simple and blood stained soil was collected from the spot and memo of the same was prepared as Exhibit Ka-8. He also took into possession blood stained clothes of both the injured Malkhan and Pooran, prepared memo of the same as Exhibit Ka-10. This witness has stated in his examination-in-chief in the last paragraph of page-68 of the paper book that investigation was subsequently taken over by the Investigating officer Shyamveer Singh, S.O. (P.W.9) and he had filed charge-sheet against the accused persons and he has identified his signature on the charge-sheet and has proved the same as Exhibit Ka-11. 14. Dr. Pradeep Kumar P.W.8 has operated on injured Pooran (injured P.W.2) and has proved that he extricated two pellets from his right shoulder after administering anesthesia on him. He has proved his process and the relevant bed-head ticket containing such description as Exhibit Ka-12 and Ka-13, respectively. Shyamveer Singh P.W.9 is the subsequent Investigating Officer who took over the investigation on 15.1.1980, recorded statement of various witnesses and prepared charge-sheet already exhibited as Exhibit ka-11. Dr. He has proved his process and the relevant bed-head ticket containing such description as Exhibit Ka-12 and Ka-13, respectively. Shyamveer Singh P.W.9 is the subsequent Investigating Officer who took over the investigation on 15.1.1980, recorded statement of various witnesses and prepared charge-sheet already exhibited as Exhibit ka-11. Dr. A.K. Sharma P.W.10 has conducted autopsy on the cadaver of deceased Ramdevi wife of Roop Singh at mortuary, Aligarh on 13.1.1980 around 3.45 p.m. This witness has proved the post-mortem Exhibit ka-14. Thereafter, the evidence for the prosecution was closed and the statement of the accused persons recorded under Section 313 Cr.P.C. wherein they claimed their implication without any basis and on account of enmity. The defence produced Suresh Chandra Agrawal D.W.1, Bhagwan Das D.W.2 and Chaub Singh D.W.3. The testimony of all these defence witnesses is irrelevant for the purposes of this appeal for the reason that all these defence witnesses have deposed on point of date of birth of another co-accused Sheoraj Singh, who has already been declared juvenile (by the trial Court) and was released on probation for maintaining good conduct for three years period while the trial Court delivered its judgment in the concerned Sessions Trial No. 415 of 1980, on 2.5.1983. The learned trial Court after hearing the parties on merit and after considering the record returned with aforesaid verdict of conviction and and sentence dated 2.5.1983. Consequently, this appeal. 15. Learned counsel for the appellants initially invited our attention to fact that in this case initially the appeal was filed by all the five appellants but appellant No. 5 Sheoraj Singh was declared juvenile by the trial Court and obviously he has already suffered the entire sentence (Probation for good conduct for three years) and no appeal was preferred by the State against him. However, during the course of pendency of this appeal the other two accused persons-namely, Rukum Pal and Bhudeo, expired, therefore, their appeal abated vide order of this Court dated 27.7.2016. Therefore, the present appeal is basically confined to two co-accused-namely, Shree Pal and Girraj, i.e. appellant No. 1 and appellant No. 2, respectively. 16. However, during the course of pendency of this appeal the other two accused persons-namely, Rukum Pal and Bhudeo, expired, therefore, their appeal abated vide order of this Court dated 27.7.2016. Therefore, the present appeal is basically confined to two co-accused-namely, Shree Pal and Girraj, i.e. appellant No. 1 and appellant No. 2, respectively. 16. It has been claimed on behalf of both the appellants that role of Shree Pal and Girraj, the two appellants, is distinguishable in its entirety from the role of the other co-accused persons, and role of present two appellants and rest of the other appellants cannot be clubbed together. Prosecution version alleges, certains particular overt act of raising clay barrier in the street across drainage of Roop Singh because the water flowing from the tap of Roop Singh’s house flowed out through the drainage in the street in front of house of both the appellants. Thereafter, allegation proceeds on describing another part of incident, which occurred subsequently to vituperation. The latter part of incident followed after intervention of the informant’s side with the present appellants. The other three accused persons Rukum Pal, Bhudeo and Sheoraj Singh formed another group and had no prior or on the spot, nexus with the present appellants and objective of both the set of accused was quite different. They (Rukum Pal, Bhudeo and Sheoraj) conjointly fired on the first informant side, which resulted into death of Ramdevi. The prosecution witnesses of fact, in order to falsely, involve the present two appellants deliberately, improved their version describing the incident narrowly and assigned role of causing assault by shovel to appellant Shree Pal, which description of incident stands exposed by fact that no such statement was ever recorded under Section 161 Cr.P.C. or was described in the first information report, itself then what to say, about the assault, being caused by Shree Pal, on the spot to Roop Singh. There is no whisper of any shovel being possessed by the two appellants in the first information report itself. Viewing from that angle it is crystal clear that the present two appellants-Shree Pal and Girraj did not commit any offence at all. They only safeguarded their interest by raising clay barrier so that water from drainage of Roop Singh may not flow on the street in front of their house and that act cannot be said to have been committed within any criminal intent. They only safeguarded their interest by raising clay barrier so that water from drainage of Roop Singh may not flow on the street in front of their house and that act cannot be said to have been committed within any criminal intent. Therefore, the act and the role of both the appellants do not fall within the periphery of any criminal liability. The two appellants apart from above over act did not do anything more and their objective was complete. 17. Per contra, learned AGA has retorted to the above submissions by claiming that the act imputed against the present appellants, was the base, on which, the entire episode stands. The base of the story was laid down by none other than the present two appellants. These two appellants not only raised the mud/soil barrier by placing earth across the drainage of Roop Singh, but also, they insisted that no one should remove this barrier and, in the meanwhile, altercation ensued in the presence of all the offenders, who were present on the spot. The offenders first made unlawful assembly and their object was one and the same that the water from Roop Singh’s house should not flow out in the street in front of houses of all the accused persons. This specific act has not only been alleged in the first information report, but also testified by the prosecution witnesses of fact before the trial Court and the testimony on point of specific role being played by the appellants has been specifically attributed by the prosecution witnesses. It has emerged in the testimony of prosecution witnesses that during the course of incident one of the present appellants, Shree Pal caused blow/assault with shovel on Roop Singh. All this act when taken as a whole, is sufficient to fasten joint liability contemplated under Section 149 Cr.P.C. Minor inconsistencies, if any, appearing in the statement of the prosecution witnesses by itself, are not sufficient to throw away the entire prosecution case. Latches committed by the Investigating Officer cannot be fatal. The case of the prosecution has been proved beyond reasonable doubt. 18. We have also considered the respective submissions of both the sides. 19. Latches committed by the Investigating Officer cannot be fatal. The case of the prosecution has been proved beyond reasonable doubt. 18. We have also considered the respective submissions of both the sides. 19. At the very outset, upon perusal of contents of first information report, we come across facts that some drainage was opened from the house of Roop Singh, wherefrom, water from inside the house, used to flow out in the street towards the houses of accused persons and on the day of occurrence, around 6.30/7.00 a.m. Shree Pal and Girraj-present two appellants came in front of Roop Singh’s house and raised clay barrier across his drainage, whereupon Ramdevi, wife of Roop Singh, Malkhan Singh, Pooran Singh son of Bhagwan Singh, Roop Singh son of Uttam Singh asked them to refrain from doing so, whereupon the accused persons started abusing. As soon as, the informant’s side tried to remove clay barrier, in the meanwhile, Rookam Pal son of Jodh Singh, Bhudev Singh son of Khyaliram exhorted Sheoraj Singh son of Rookam pal Singh to open fire on the spot, whereupon Sheoraj Singh fired three to four times and the alleged first fire hit Ramdevi wife of Roop Singh as a result of which she fell down and died. Some Pellets also hit Malkhan and Pooran Singh son of Bhagwan Singh. In the meanwhile, Jagpal Singh, Shivraj Singh son of Ranchour Singh, Prasadi Lal of the village arrived on the spot and saw the incident. The first informant Bhagwan Singh while leaving the spot, left behind the dead body of Ramdevi on the spot and went to the police station alongwith Malkhan Singh and Pooran Singh, in bullock-cart and then report was lodged around 10.15 a.m. 20. After considering the entire allegations made against the present appellants, prosecution case and the claim of present appellants, the moot point that crops up for adjudication of this appeal, relates to fact whether, the prosecution has been able to prove beyond reasonable doubt, the charges against the appellants or whether, the participation of the appellants in the crime was doubtful ? 21. In the backdrop of aforesaid factual aspects of this case, we have to scrutinize and make a comparative analogy of circumstances vis-a-vis facts and evidence on record in order to arrive at just and proper decision in the case. 22. 21. In the backdrop of aforesaid factual aspects of this case, we have to scrutinize and make a comparative analogy of circumstances vis-a-vis facts and evidence on record in order to arrive at just and proper decision in the case. 22. We have scanned carefully, the testimony of prosecution witnesses of fact-Bhagwan Singh P.W.1, Pooran P.W.2, Malkhan P.W.3, Shydan P.W.4 and testimony of formal prosecution witnesses and particularly statement of prosecution witnesses of fact recorded under Section 161 Cr.P.C. by the Investigating Officer Brajwasi Lal P.W.7. It emerges out from construction of testimony of aforesaid four prosecution witnesses of fact that incident occurred on 12.1.1980 around 6.30/7.00 a.m. Shree Pal and Girraj raised clay-bund across drainage in front of house of Roop Singh due to which flow of water from drainage was stopped. At this, informant’s brother Roop Singh, his wife Ramdevi and informant’s son Malkhan and Pooran including the informant also, went to them and asked them to desist from doing so, whereupon some altercation took place and in the meanwhile, Bhudeo, Rukum Pal Singh and Sheoraj Singh also arrived on the spot and Rukum Pal son of Jodh Singh, Bhudev Singh son of Khyaliram exhorted ‘maaro salo ko’, whereupon, Sheoraj Singh son of Rukum Pal Singh took out the SBBL gun and fired by it, which fire hit Ramdevi. She fell down and died on the spot. Second fire hit Pooran Singh. He also fell down and third fire hit Malkhan Singh. He also fell down. Fourth fire hit on the wall. Informant and his brother, somehow, managed to save their lives. It has been specifically stated by all the prosecution witnesses of fact that Shree Pal and Girraj were raising clay-bund with their shovel when altercation took place and Shree Pal gave blow with shovel to Roop Singh on his hand, which caused him injury. 23. Testimony as a whole and record reveals that post-mortem report of Ramdevi Exhibit ka-14 specifies ante-mortem injuries in shape of a number of pellets hitting her body on shoulder, leg, arm and chest and the opinion of the doctor these injuries could have been caused by use of gun-fire and both the ante-mortem injuries may possibly be caused by gunshot. Obviously, the cause of death is due to shock and haemorrhage. It is obvious that the shot was fired by Sheoraj due to which Ramdevi died on the spot. Obviously, the cause of death is due to shock and haemorrhage. It is obvious that the shot was fired by Sheoraj due to which Ramdevi died on the spot. In so far as, use of shovel for causing assault to Roop Singh is concerned, we, on scrutinizing statements of all the prosecution witnesses recorded under Section 161 Cr.P.C. discover that use of shovel for causing assault by shovel was never recorded by the Investigating Officer. When, the prosecution witnesses were confronted on such omissions, in their statements under Section 161 Cr.P.C., they could not assigned any sanguine reason for the same. In this view of the matter, it trickles out that the prosecution version, on point of use of shovel at the time of raising clay barrier on the spot, cannot be believed to be the exact position, but the prosecution witnesses are found to be improving gradually on this aspect in order to actively involve the two appellants in overt criminal act. 24. Further, the testimony on record of prosecution witnesses of fact itself suggests that it so happened that informant’s side was aggrieved by the soil barrier raised on the spot in-front of house (of Roop Singh) and when initially the informant’s side asked the two accused Shree Pal and Girraj, to removed the same, they abused the informant side and in the meanwhile, the three other co-accused persons, namely, Rukum Pal, Bhudeo, and Sheoraj Singh arrived at the spot and Rukum Pal exhorted Sheoraj to assault informant’s side, whereupon, Sheoraj brought SBBL gun from inside room and fired on informant’s side, thus causing death of Ramdevi and injuring the other two persons, namely, Pooran Singh and Malkhan Singh. Perusal of their injury reports, Exhibit Kha-2 and Ka-3, respectively, verifies fact that injuries could have been caused by gunshot. Therefore, it is obvious that the two persons sustained pellets injuries on their person because of the incident and in consequence of firing done by Sheoraj. Legal premise crops up as to whether, the act of all the accused persons, can be cumulatively construed as a single work with common object and all the accused persons were sharing common object on the spot. Legal premise crops up as to whether, the act of all the accused persons, can be cumulatively construed as a single work with common object and all the accused persons were sharing common object on the spot. Here, we notice that the appellants Shree Pal and Girraj initially raised the clay barrier and thereafter some abuse was extended by them on informant’s side and in the meanwhile, another neighbour Rukum Pal Singh, Bhudeo and Sheoraj Singh also arrived at the spot and when only they with their own action caused incident of firing which caused death of one lady, besides, causing injuries on the persons of Pooran Singh and Malkhan Singh, the two sons of the informant. Before we indulge in deliberation on that aspect, it would be appropriate to have a look on Section 149 IPC, which prescribes for acts done by an unlawful assembly in prosecution of the common object of that assembly, which runs as under: “149. Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” Here, testimony on record, shows that initially only the appellants Shree Pal and Girraj alone were present and the other three accused persons reached on the spot when abuses were extended by the appellants for informant’s side. Here, in this case, it is obvious that there are two sets of accused persons. One set includes Shree Pal, Girraj and the another set includes Rukum Pal, Bhudeo and Sheoraj Singh. 25. Obviously, both the groups are neighbours and resident of the same vicinity and their houses are adjoining to and infront of Roop Singh’s house. It can be easily understood, under circumstances of this case, that all the five people had grievance against flow of water, which flowed down in the street from tap of Roop Singh (informant’s brother). 25. Obviously, both the groups are neighbours and resident of the same vicinity and their houses are adjoining to and infront of Roop Singh’s house. It can be easily understood, under circumstances of this case, that all the five people had grievance against flow of water, which flowed down in the street from tap of Roop Singh (informant’s brother). The point is that initially there were only two persons present on the spot and their object was completed the moment when they raised the mud barrier and thereafter they did no overt act, except exchanging abuses, there is no whisper, either in the first information report or in the statement recorded by the Investigating Officer of the prosecution witnesses that Shree Pal and Girraj did anything more than that. Possibility of use of shovel as a weapon of assault, as discussed above, cannot be accepted in view of absence of any statement recorded by the Investigating Officer to that effect under Section 161 Cr.P.C. 26. Further, it has been stated by the prosecution witnesses that Shree Pal caused assault by shovel on Roop Singh from blunt side, which caused injury on his arm but no medical examination was done nor any such report brought on record. To form an unlawful assembly, it is one of the essential ingredients that the persons forming unlawful assembly as defined under Section 149 IPC, must have common object and all the members present in the assembly, must know and have reason to believe the likelihood of the act committed by any member of the unlawful assembly that this sort of act may be committed. In legal parlance, it can be conveniently construed on the basis of testimony of prosecution witnesses that two sets of accused persons-one in group of two persons and other in group of three persons-though appeared on the spot but they never shared the common object of either causing death or injury on the informant’s side. In this case the act of the second set of three accused person had its own isolated object to given vent to their grievance in their own style and and when the occasion comes for that. The act of appellants Shree Pal and Girraj was as per factual testimony on record confined only to raising of mud barrier and beyond that their act seized to exit. The act of appellants Shree Pal and Girraj was as per factual testimony on record confined only to raising of mud barrier and beyond that their act seized to exit. It travelled further only to the level of vituperation extended by them on informant side. The other three accused persons, Rukum Pal, Bhudeo and Sheoraj Singh took advantage of this vulnerable situation and finding it opportune moment all the three aforesaid co-accused, with a view, to give concrete shape to their hidden design, committed the crime. The two accused persons Shree Pal and Girraj, neither expected nor knew about any such design. Consequently, the act of the three other co-accused persons Rukum Pal, Bhudeo and Sheoraj Singh cannot fasten any vicarious liability on the appellants Shree Pal and Girraj. 27. On perusal of testimony of the Investigating Officer Brajwasi Lal P.W.7, unfolds entire things and circumstances and exposes to the hilt that on the aspect of actual occurrence, the prosecution witnesses of fact are improving their version just to implicate and categorize all the accused in one circle which circle need be bifurcated between the two halves. On careful analogy of testimony and circumstances we may easily conclude that the fact of actual occurrence becomes crystal clear, therefore, no joint liability can be fixed on the present appellants-Shree Pal and Girraj for separate and exclusive act of other co-accused-Rukum Pal, Bhudeo and Sheoraj Singh. It has not come in the testimony of any prosecution witnesses of fact that all the five persons had common design or object or had reason to believe that such act or offence would be the outcome of embankment, so raised by accused Shree Pal and Girraj. They did not exhort anyone. 28. The learned trial Court while appraising evidence and marshalling facts of this case did not heed to certain vital aspects and circumstance which are self evident on point of participation of the appellants and on point of vicarious liability for act of others. 29. Here, we give benefit of doubt to both the appellants Shree Pal and Girraj. The above discussion of testimony, facts and circumstances of this case lead us to the conclusion that the charges framed against the appellants-Shree Pal and Girraj-have not been proved beyond reasonable doubt and no liability can be fastened on them by use of Section 149 IPC. Here, we give benefit of doubt to both the appellants Shree Pal and Girraj. The above discussion of testimony, facts and circumstances of this case lead us to the conclusion that the charges framed against the appellants-Shree Pal and Girraj-have not been proved beyond reasonable doubt and no liability can be fastened on them by use of Section 149 IPC. Consequently, their conviction recorded by the trial Court under Sections 147, 307/149, 324/149 IPC becomes erroneous and perverse and they are acquitted of the same. Both the appellants are on bail. They need not surrender in this case. Their personal bonds and bail bonds are cancelled and sureties are discharged. 30. These are the reasons upon which we set aside the impugned judgment and order of conviction dated 2.5.1983 passed by the Additional Sessions Judge Vth, Aligarh in Sessions Trial No. 415 of 1980 (State v. Shree Pal and others) arising out of Case Crime No. 6 of 1980, under Sections under Sections-147, 307/149 and 324/149 I.P.C., Police Station-Akrabad, District Aligarh. 31. However, we direct that the appellants will ensure compliance of provisions of Section 437A Cr.P.C. by appearing before the concerned trial Court at the earliest. 32. Let a copy of this order be certified to the concerned trial Court for its intimation and follow up action.