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2017 DIGILAW 1989 (JHR)

Krishna Baraik etc. v. State of Jharkhand

2017-11-18

AMITAV K.GUPTA, D.N.PATEL

body2017
JUDGMENT : AMITAV K. GUPTA, J. 1. The above appeals have been preferred against the judgment dated 31.7.2006 in Sessions Trial No. 126 of 2004. passed by the Additional Sessions Judge, Simdega, whereby the appellant-Krishna Baraik of Cr. Appeal No. 622 of 2010 has been convicted for the offence under Section 302 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo life imprisonment and rigorous imprisonment of 5 years respectively. Accused-appellants in Cr. Appeal No. 1370 of 2006 and Cr. Appeal No. 1510 of 2006 have been convicted for the offence under Section 302 read with Section 149 of the Indian Penal Code (for short IPC) and sentenced to undergo life imprisonment arid the appellants/accused have also been convicted under Section 149/449 and sentenced to under go rigorous imprisonment for 7 years. 2. The case of the prosecution as narrated in the fardbeyan, dated 14.7.2004, of Babli Devi (PW 7) is that on 13.7.2004 at 3:00 p.m. she had gone to fetch water from the well and when she returned, she saw that the accused-appellants, Krishna Baraik, Ahlad Baraik, Prahalad Baraik, Chhotu Baraik, Nand Kishore Baraik, Mahabir Baraik, Lodro Baraik, and three unknown persons standing near her house. That Krishna Baraik enquired about the whereabouts of her husband namely, Biraju Baraik (since deceased) and out of fear she stated that he was not in the house. Thereafter, Krishna Baraik threatened to shoot her and out of fear she disclosed that Biraju Baraik was sleeping in the house. Thereafter, accused-Ahlad Baraik, Prahald Baraik, Chhotu Baraik, Nand Kishore Baraik, Mahabir Baraik and Lodro Baraik, entered into her house and they dragged out Biraju Baraik and took him to the western side of the courtyard where Krishna Baraik fired pistol shot from behind on her husband. Due to the pistol shot her husband died on the spot. That all the accused persons thereafter proceeded to the house of Krishna Baraik. It is alleged that Krishna Bairaik wanted the dealership of Public Distribution Ration shop which was being run by Biraju Baraik for which he had given threats, on earlier occasion, to her husband and it was due to the said dispute that Krishna Baraik had killed her husband. On the basis of the fardbeyan, FIR bearing Bano P.S. Case No. 21/04 was registered on 14.7.2004 at 8:30 a.m. and charge-sheet was laid. On the basis of the fardbeyan, FIR bearing Bano P.S. Case No. 21/04 was registered on 14.7.2004 at 8:30 a.m. and charge-sheet was laid. The accused denied the charges and faced the trial. 3. In support of the prosecution case 11 witnesses have been examined :- PW 1 Karampal Baraik The father of the deceased Birju Baraik. PW 2 Ful Kumari - The sister of the deceased Birju Baraik. PW 3 Bhuneshw ar Baraik The brother of deceased Biraju Baraik. PW 4 Lakhmi Devi - The mother of deceased Biraju Baraik. PW 5 Deepak Baraik - The younger brother of deceased Biraju Baraik. He has proved his signature and signature of Babli Devi in the carbon copy of Inquest report, i.e. marked as Exts. 1 and 1/1 respectively. PW 6 Basanti Devi - The sister of deceased Biraju Baraik. PW 7 Babli Devi – The informant and the wife of deceased Biraju Baraik. She has proved her signature (Ext. -2) on the fardbeyan. PW 8 Dr. Sarvar Alam The Doctor who conducted the - Post-mortem of the dead body of Biraju Baraik and has proved the Post-mortem report (Ext. 3). PW 9 Bhanjan Baraik PW 10 Chando Devi PW 11 Buddhiman Bhagat (I.O.)- The Investigating Officer has proved the fardbeyan (Ext. 4) and endorsement (Ext. 5) on the fardbeyan, the formal FIR, (Ext. 6) and Inquest report (Ext. 7) and the seizure list (Ext. 8). The defence has examined two witnesses :- DW 1 Khirodhar Baraik DW 2 Ramanuj Prasad On behalf of prosecution the following documents have been marked as exhibits : Ext. 1 - Signature of Deepak Baraik (PW 5) in the carbon copy of Inquest report. Ext. 1/1-Signature of Babli Devi (PW 7) in the carbon copy of Inquest report. Ext. 2 - Signature of Babli Devi in the fardbeyan. Ext. 3 - Post-mortem report. Ext. 4 - Fardbeyan. Ext. 5 - Endorsement over the fardbeyan Ext. 6 - Formal FIR. Ext. 7 - Inquest report. Ext. 8 - Seizure list. On consideration and appreciation of the evidence the learned trial Court recorded the findings and convicted and sentenced the appellants/accused by the aforesaid judgment impugned in the present appeal. 4. Mr. B.M. Tripathy, learned senior counsel, on behalf of the accused-appellant Krishna Baraik (Cr. 6 - Formal FIR. Ext. 7 - Inquest report. Ext. 8 - Seizure list. On consideration and appreciation of the evidence the learned trial Court recorded the findings and convicted and sentenced the appellants/accused by the aforesaid judgment impugned in the present appeal. 4. Mr. B.M. Tripathy, learned senior counsel, on behalf of the accused-appellant Krishna Baraik (Cr. Appeal No. 622 of 2010), has assailed the impugned judgment mainly on the ground that the trial Court has failed to appreciate that there was dispute with respect to running of Public Distribution Ration shop between the deceased and appellant-accused, as disclosed in the fardbeyan/F.I.R. and admitted by (informant) PW 7 in her deposition. He has argued that the independent witnesses namely, PW 9 (Bhanjan Baraik) and PW 10 (Chando Devi) have not supported the prosecution case. That PWs 1 to 7 are highly interested witnesses, being the family members of the deceased, and are on inimical terms with the appellant on account of the said dispute. It is argued that in the absence of corroboration by any independent witness the probability cannot be ruled out that the appellant has been falsely implicated to feed fat an old grudge due to previous dispute. 5. It is urged that there is no plausible explanation for the delay in lodging the F.I.R. since the occurrence took place on 13.7.2004 at 3:00 p.m. whereas the F.I.R. was lodged on the next day, i.e. on 14.7.2004. It is argued that the Court below should have considered that the father namely, Karampal Baraik (PW 1) and the brothers namely, Bhuneshwar "Baraik and Deepak Baraik (PWs 3 and 5), who are hearsay witnesses, had reached the place of occurrence, on receiving the information, within a short span of time but they did not endeavor to lodge the F.I.R. immediately. Learned senior counsel contended that delay in lodging in FIR is suggestive of the fact that the family members confabulated and thereafter they tailored and concocted a story to falsely implicate the appellant-accused. It is contended that the Court below has not considered and appreciated that the witnesses have made contradictory statement, as some of the witnesses have stated that a shot was fired in the air and others have remained silent on this point. 6. It is contended that the Court below has not considered and appreciated that the witnesses have made contradictory statement, as some of the witnesses have stated that a shot was fired in the air and others have remained silent on this point. 6. It is also argued that the Court below has not appreciated the evidence of DW 1 and DW 2 who have categorically deposed that the appellants-accused were not present at the place of occurrence. In fact they have deposed that the deceased was shot dead by three miscreants who had come riding on the motorcycle. It is argued that the possibility cannot be ruled out that the deceased was killed by the members of a banned outfit/organizations as the area is infested with extremists. Learned counsel has strenuously argued that the learned Court below has held the accused guilty without appreciating the testimony of DWs 1 and 2 which is against. he settled proposition of law. 7. On the above grounds, it is contended that the impugned judgment is not sustainable in law or on facts and is fit to be set aside and the appellant-accused-Krishna Baraik, should be acquitted of the charges. 8. Learned counsels appearing on behalf of the appellant-Nand Kishore Baraik (in Cr. Appeal No. 1510 of 2006) and appellants namely, Ahlad Baraik, Prahalad Baraik, Chhotu Baraik and Lodro Baraik (in Cr. Appeal No. 1370 of 2006) have adopted the arguments advanced by the learned senior counsel. It is submitted that the Court below has. erred in law and on facts by holding the appellants guilty and convicting the above named appellants for the offence under Sections 302/149 and 449/149, IPC. It is argued that there is no material evidence on record to show that these appellants had committed any overt act. That the allegation that they had dragged the deceased out from the house is omnibus. While reiterating the argument of learned senior counsel it is argued that defence witnesses have deposed that the appellants were not present at the place of occurrence. Accordingly, it is canvassed that there is no material evidence on record to hold the appellants guilty for the offence under Section 302 and Section 449, IPC read with Section 149, IPC. 9. Heard. Accordingly, it is canvassed that there is no material evidence on record to hold the appellants guilty for the offence under Section 302 and Section 449, IPC read with Section 149, IPC. 9. Heard. In view of the arguments of the learned counsels, the question which arises for consideration is whether impugned judgment is sustainable in law or on facts, in view of the evidence available on record. 10. PW 1, Karampal Baraik, has deposed that he was in the Mahabuwang Bazar where he received the news that his son had been killed. He came to the house and saw the dead body of his son. That police had come and prepared the seizure list of the blood stained soil and empty cartridges and he had put his LTI on the seizure list. 11. PW 2, Ful Kumari, has deposed that the accused-appellants had come to her house and had enquired from PW 7 regarding the deceased, and thereafter all of them entered the house and brought the deceased out of the house where after the appellant-accused Krishna Baraik fired pistol shot from behind. In cross-examination, she has stated that accused-appellants had tied her brother with rope and dragged him out where after pistol shot was fired on him and she had seen the pistol in the hand of accused-appellant-Krishna Baraik. 12. PW 3, Bhuneshwar Baraik, has deposed that he had heard two firearm shots and on hearing cries of the family members, he came to his house and saw his brother lying dead. PW 7 had told him that accused-appellants had entered the house and had dragged the deceased out where after, accused-appellant-Krishna Baraik had fired a gunshot from behind. 13. PW 4, Lakhmi Devi, has deposed that the accused persons had asked PW 7 regarding the whereabouts of Biraju Baraik. That the accused persons, except accused-appellant-Krishna Barillk, entered the house and had dragged out the deceased where after accused-Krishna Baraik had fired a gunshot on the deceased from behind. In cross-examination she has reiterated that accused-Krishna Baraik was armed with pistol. That she resides 100 steps away from the house of the deceased and accused-Krishna Baraik had shot the deceased. 14. PW 5, Deepak Baraik, has deposed that he had gone to the Bazar and came to know about the occurrence from PW 7 and his father, i.e., PW 7. That she resides 100 steps away from the house of the deceased and accused-Krishna Baraik had shot the deceased. 14. PW 5, Deepak Baraik, has deposed that he had gone to the Bazar and came to know about the occurrence from PW 7 and his father, i.e., PW 7. That he had put his signature on the Inquest report along with PW 7. 15. PW 6, Basanti Devi's deposition is similar to that of PW 2. She testified that accused-Krishna Baraik was standing outside the door and other accused-appellants entered the house and brought out the deceased where after appellant Krishna Baraik had shot her brother (the deceased) from behind. In cross-examination, she has reiterated that accused-Krishna Baraik was standing outside the house and she had seen Krishna Baraik firing a gunshot. 16. PW 7, Babli Devi, the informant, has deposed that all the accused-appellants had come to her house. That Krishna Baraik had enquired about her husband and threatened that if she lied he would shoot her whereupon she told him that her husband was sleeping inside the house. That Krishna Baraik kept standing at the darwaja and other. Co-accused entered the house and dragged and brought her husband out of the house. That some unknown person fired in the air, thereafter Krishna Baraik fired a pistol shot from behind on her husband. That prior to the occurrence-Krishna Baraik had given threats to her husband as he wanted to run, the Public Distribution Shop which was being run by her husband. She deposed that due to this reason Krishna Baraik had killed her husband. In cross-examination, she has deposed that accused Ahlad Baraik had tied rope around the waist of her husband and dragged him out of the house. That Krishna Baraik had shot her husband from a distance of a hand or two. 17. PW 8 (Dr. Sarvar Alam) had conducted the post-mortem over the dead body of deceased and he has deposed that he had found wound of entry at left interior angle of scapula about 1/2" x 1/4" in dimension and there was mark of gun powder scattered around the entry point. He found the wound of exit about 1" x 1/2" in between two nipples of the deceased (Biraju Baraik). In the opinion of the doctor. He found the wound of exit about 1" x 1/2" in between two nipples of the deceased (Biraju Baraik). In the opinion of the doctor. injuries were ante-mortem in nature and caused by gun powder producing weapon and it may be caused by firing pistol shot. The evidence of PW-8 and the findings in the post-mortem report establishes the fact that the deceased Biraju Baraik died due to fire-arm injuries. 18. PWs 9 and 10 have been declared hostile but it is noticed that PW 10 has deposed that on hearing gunshots she came to the house of PW 7 where she saw the dead body of Biraju Baraik. On enquiry PW 7 told her that accused-appellant-Krishna Baraik had shot her husband. It is evident that though she has been declared hostile but she has admitted that PW 7 had disclosed to her the name of Krishna Baraik as the assailant. 19. PW 11 is the Investigating Officer, and he has stated that he had heard rumors that a person of Jam Toli had been murdered whereupon he drew Sanha No. 222, dated 13.07.2004, and had sent two chawkidars to verify the same. He has deposed that since the area is infested with extremists, hence he did not go to the place of occurrence immediately and visited the place of occurrence' on the next day, i.e., 14.7.2004 at 4:00 a.m., along with the Officer-in-Charge and other police personnel. He had recorded the statement of PW 7 and has proved the fardbeyan. He had prepared the Inquest report and seized the empty cartridges of 315 bore and 9 mm and a pellet of 315 and blood stained soil and prepared the seizure list. The material exhibits are marked Exts. I to IV. His attention has been drawn to the deposition of PW 7 and he denied that PW 7 in her statement under Section 161, Cr PC had stated that accused-Ahlad Baraik had tied the deceased with rope and brought him out of the room. 20. The defence has examined two witnesses, i.e., DW 1 and DW 2. DW 1 has deposed that, he had gone to the house of the deceased for kerosene oil. PW 7 had told him that her husband is taking rest, therefore he waited near the home of PW 7. 20. The defence has examined two witnesses, i.e., DW 1 and DW 2. DW 1 has deposed that, he had gone to the house of the deceased for kerosene oil. PW 7 had told him that her husband is taking rest, therefore he waited near the home of PW 7. That while he was waiting, three persons came riding on a motorcycle and when the deceased came out then one miscreant fired in the air and also shot the deceased. That the miscreants fled away on the motorcycle. In cross-examination, he has admitted that he had not informed the police neither gave any statement before the police. DW 2 has deposed that he had gone to the house of PW 7 because she had asked him to give some medicines to her child who was suffering from dysentery. He deposed that when he was coming out of the house of PW 7 then three persons came riding on a motorcycle. They asked PW 7 to tell her husband to come out of the house and when the deceased came out, the motorcycle riders asked him about payment of money and he heard shot of firearms. That he went to the house of PW 7 and saw that the deceased was lying dead, where after he went to the bazar and informed PW 1. In cross examination, he has admitted that he did not give any information to the police of Bano PS., nor any statement was given by him to the police. He has deposed that at the time of occurrence PW 7 and PW 4 were present in the house. 21. Considering the evidence of the. prosecution witnesses as elucidated above, it is evident that PW 11, i.e., Investigating Officer, has admitted that on receiving information about the murder on 13.7.2004 he had made a Sanaha entry and sent chowkidars to verify the same. He has testified that he did not proceed to the place of occurrence immediately, because the area is infested with extremists. The deposition of PW 11 sufficiently explains as to what prevented the informant or the members of the family of the deceased from lodging the FIR immediately. As noticed, PW 11 has admitted that the area is infested with extremists. He had despatched the chowkidars to verify about the incident. PW 11 along with police reached the place of occurrence on the next day. As noticed, PW 11 has admitted that the area is infested with extremists. He had despatched the chowkidars to verify about the incident. PW 11 along with police reached the place of occurrence on the next day. Therefore, the argument of the learned counsels that there is• no plausible explanation for the delay in lodging the FIR is not tenable as PW 11 has explained the cause and reason for not recording the FIR immediately and deposition of PW 11 answers and addresses the question as to why the FIR was not lodged immediately. The expo sited facts and the evidence tendered by PW 11 plausibly explains the delay in lodging the FIR. 22. In response to the argument that the delay in lodging the FIR was with an intention to concoct and tailor a story to falsely implicate the accused-appellants, it would be evident that PW 10 (an independent witness). though she has been declared hostile by prosecution, but she has testified that on hearing sound of gun-shots she reached the house of PW 7, and saw Biraju Baraik lying dead. On enquiry PW 7 had disclosed to her that accused-appellant-Krishna Baraik had shot her husband. As evidenced PW 7 in her deposition in Court has proved the statement made by her in the fardbeyan. Though there is some embellishment in her testimony in Court vis-a-vis the statement as recorded under Section 161, Cr PC, to which attention has been drawn in PW 11's deposition, but such infringement or improvement cannot be termed as material contradiction to demolish the substratum of prosecution case. It is evident that no suggestion has been given to the prosecution witnesses that they have connived and concocted a. story and lodged the FIR with the intent and object to falsely implicate the accused Krishna Baraik, on account of previous enmity or dispute. On careful scrutiny of the evidence adduced by the prosecution it is explicit that the defence has not been able to elicit any vital contradictions to dent or discredit the creditworthiness of the evidence of the prosecution hi fact the plea that the fardbeyan has been lodged as an afterthought to falsely implicate the accused on concocted story to feed fat an old grudge has not been substantiated. 23. 23. In this context it is also pertinent to scrutinize the deposition of DWs 1 and 2, in context of the plea taken by the defence that appellant-accused Krishna Baraik has been falsely implicated on account of previous dispute. On perusal of the deposition of DW 1 And DW 2, it is apparent that they have not whispered or stated anything on the point of false implication of the accused Krishan Bariak on account of previous enmity. 24. There is no dispute to the settled legal position that evidence of defence witness has to receive equal treatment as that of prosecution. It is settled principle of criminal jurisprudence that the prosecution must establish its case beyond all reasonable doubt and evidence of defence witnesses cannot be relied upon or considered or taken advantage of to prove the case of the prosecution. There is also no dispute to the general proposition that the evidence of defence witness cannot be ignored rather the testimony of the defence witness has to be tested on the touchstone of reliability, credibility and trustworthiness, meaning thereby, it needs a careful scrutiny by the Courts to weigh the probability of the case of the defence. 25. In the backdrop of the settled proposition, and on scrutiny and analysis of the evidence of DW 2 it is evident that he has admitted that PWs 7 and 4 were present in the house when he visited the house of PW 7, on her asking, for giving medicines to her child. He has testified that when he was leaving the house of PW 7, he had seen that three persons had come riding on the motor-cycle and they had told PW 7 to ask her husband to come out. In this connection it is relevant to take notice of testimony of DW 1-who testified that on being told by PW 7 that her husband was resting, then he decided to wait for her husband to come out. On appraisal of the deposition of DWs 1 and 2, it is abundantly clear that both of them have admitted that they were present at the place of occurrence when the alleged miscreants came riding on a motor-cycle but surprisingly neither DW 1 and, DW 2 has testified that they had witnessed each others presence at the place of occurrence at the relevant time when the crime was committed. The disturbing and baffling question is that neither of them reported the matter to the police nor did they record their statement before the police. This conduct of DW 1 & DW 2, casts a grave doubt regarding their presence at the scene of crime as also the reliability of their testimony. 26. On the point of contradiction in the deposition of the witnesses as argued by the learned counsels that some have stated that one shot was fired in the air while some have remained silent on this aspect. In this context it is pertinent to emphasize that it is well-settled legal proposition that while appreciating the evidence the Court has to weigh and consider whether the contradiction, inconsistencies or embellishment are of such magnitude which affects or demolishes the foundation of the prosecution's case. It is well. settled that minor embellishment or improvements are made even by truthful witnesses and this cannot be a ground for rejecting or disbelieving the testimony in its entirety. The presence of PWs 4 and 7 at the place of occurrence has not been controverted rather it is fortified by the evidence of independent witnesses PW 10 and the DW 2. 27. The concept of falsus in uno and falsus in omnibus has no application and minor embellishment or embroidery is bound to occur and what is relevant to be examined and determined is whether the evidence stands the test of credibility and is reliable to prove the case of the prosecution. 28. In the backdrop of the settled legal position and the evidence as obtaining on record, it is explicit that no material contradictions has been brought forth by the defence to discredit the trustworthiness of PWs 4 and 7. In fact consistency in their evidence proves that accused-appellant Krishna Baraik had fired the pistol shot on the deceased. The medical evidence supports the testimony of PWs 4 and 7 accordingly the plea that some unknown criminals had authored the firearm injuries on the deceased is patently fallacious and not acceptable. 29. Argument advanced by the learned counsel that the witnesses being family members are highly interested hence in the absence of any corroboration from independent witnesses the evidence should not have been relied upon is rather• misconceived. In this context it is relevant to refer to the decision in the case of Mohd. 29. Argument advanced by the learned counsel that the witnesses being family members are highly interested hence in the absence of any corroboration from independent witnesses the evidence should not have been relied upon is rather• misconceived. In this context it is relevant to refer to the decision in the case of Mohd. Ishaque v. State of W.B. (2013) 14 SCC 581 , wherein the Apex Court has referred to the decision in the case of Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 , and the observation made in paras 15 and 17 as under : "15. ... But it is well-settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested, evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable it may, by itself, be sufficient in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard-and-fast rule can be laid down yet. in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question whether the presence of the witness at the scene of the crime at the material time was probable. If so whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasis that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations. 17. In this respect reference may be made to the judgment of this Court in Jaishree Yadav v. State of U.P., (2005) 9 SCC 788 , wherein this Court held that whether witnesses are interested persons and whether they had deposed out of some motive cannot be the sole criterion for judging credibility of a witness, but the main criterion would be whether their physical presence at the place of occurrence was possible and probable." (Emphasis supplied) It is well-settled that evidence of interested witness is not to be mechanically overruled, rather if it is found consistent and credit worthy it can be relied upon for the simple reason that an interested witness will not let the real culprit to go Scot free. 30. The aspect of related witness and an interested witness has been dealt with by the Hon'ble Apex Court in the case of State of Rajasthan v. Kalki, (1981) 2 SCC 752 , wherein in para-7 it has been held as under : "7. ... True, it is, she is the wife of the deceased but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be 'interested'." (Emphasis supplied) This has also been reiterated by the Hon'ble Apex Court in the case of Gangabhavani v. Rayapati Venkat Reddy, (2013) 15 SCC 298 , wherein in para-18, it has been held as under :" 18. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnesses the crime, his deposition cannot be discard merely on the ground of being closely related to the victim/deceased." (Emphasis supplied) 31. In this connection, it is relevant to take notice of the deposition of PW 10, an independent witness, (though she has been declared hostile by the prosecution) wherein she has testified that, PW 7 had told her that appellant-accused-Krishna Baraik had shot her husband. This has not been dented or controverted in cross-examination. In fact PWs 7 and 4 are not interested witnesses, rather they are natural witnesses who were present at the place of occurrence, therefore, this Court is of the considered opinion that the. trial Court has appreciated the evidence in its right perspective and committed no manifest error in law or on facts in recording the finding that the accused-appellant-Krishna Baraik is guilty for the offence under Section 302, IPC and 27 of the Arms Act. That said finding does not require any interference by this Court. 32. The arguments advanced on behalf of the appellants namely, Ahlad Baraik, Prahalad Baraik, Chhotu Bariak, Lodro Baraik and Nand Kishore Baraik, that the trial Court has erred by holding these accused-appellants guilty for the offence under Sections 149, 302 and 449/149, IPC has to weighed in the backdrop of the evidence brought on record. For answering the arguments, it is pertinent to refer to the provision of Section 149, IPC, which reads as under :" 149. For answering the arguments, it is pertinent to refer to the provision of Section 149, IPC, which reads 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.", On plain reading of the provision of Section 149, it is abundantly clear that first part of Section 149 prescribes for commission of offence in prosecution of the common object of an unlawful assembly and the second part requires proof that the act done by a member or members of that assembly was within the knowledge of the members that such offence was likely to be committed in prosecution of the common object of that assembly. This section fastens vicarious liability on any of the member of an unlawful assembly for an offence committed by any other or others. But, before holding the members guilty for the offence on the principle of constructive liability, it requires ascertainment and determination whether the members of the unlawful assembly had the knowledge that there was likelihood that murder was likely to be committed in prosecution of the common object of this assembly. 33. In the case of Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 , it has been observed by the Hon'ble Apex Court that since the section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the• offence or offences committed by their associate or associates in carrying out of the common object of the assembly. The object and purpose of section is that the liability of the members rests upon the fact whether those members knew that offence actually committed or likely to be committed in prosecution of the common object by another member. 34. The object and purpose of section is that the liability of the members rests upon the fact whether those members knew that offence actually committed or likely to be committed in prosecution of the common object by another member. 34. In view of the settled proposition the onus is on the prosecution to prove and establish that the members had knowledge that such unlawful assembly's common object was to commit the murder of deceased and the members had knowledge of the same. PW 7 has supported her statement as made in fardbeyan that it was accused-appellant-Krishna Baraik who had enquired from her regarding the whereabouts of her husband, Biraju Baraik,. i.e., deceased and thereafter the other accused had entered the house and brought out the deceased. PWs 7 and 4 have stated that accused-appellant-Krishna Baraik was standing. outside when the other accused brought the deceased out of the house. They have deposed that Krishna Baraik had fired pistol shot on the deceased from behind. Though PW 7, in her chief, has deposed that accused-appellant-Ahlad Baraik tied rope around the waist of the deceased and dragged him out from the room and she had pleaded to spare life of the deceased. That Krishna Baraik fired pistol shot from the behind. However, the Investigating Officer, i.e., PW 11, has testified that such statement was not made by PW 7 in her statement recorded under Section 161, Cr PC, therefore, the evidence of PW 7 on this point that accused-appellant-Ahlad Baraik had tied rope and brought the deceased out of the house is an embellishment and cannot be accepted. Moreover PW 4 whose presence at the time of occurrence has been established, has not deposed about tying of rope or deceased being dragged out of the house by the accused by tying of a rope. 35. It is proved that accused-appellant-Krishna Baraik had shot the deceased on the back. In such circumstances the burden lies on the prosecution to establish that these accused had the knowledge about the common object of unlawful assembly to commit the murder as has been held by the Hon'ble Apex Court in the case of Bhudeo Mandal v. State of Bihar, AIR 1981 SC 1219 . 36. It is well-settled that judgment and conviction is to be recorded on the basis of the evidence brought forth in case. 36. It is well-settled that judgment and conviction is to be recorded on the basis of the evidence brought forth in case. It is evidenced neither PW 7 nor PW 4 whispered or testified that these accused had uttered any word or instigated the accused-appellant- Krishna Baraik to fire gunshot on the deceased or to kill the deceased. In fact no overt act is alleged against these accused except for the fact they dragged out the deceased from the house. The accused-appellant-Krishna Baraik might have been harboring the motive to eliminate the deceased. The possibility or probability cannot be ruled out that these accused did not have the knowledge of the motive of accused Krishna Baraik. If such knowledge is attributed to them then there was no intervening factor which prevented the accused from assaulting and killing the deceased while he was being dragged or brought out of the house. 37. It is well-settled that common object does not require prior common meeting of minds, but then common object is to be gathered by the acts done by the various members. The prosecution has not been able to establish that these accused had any animus against the deceased. Biraju Baraik, rather they had accompanied the accused Krishna Baraik. The trial Court has not recorded any finding that these persons had knowledge that such unlawful assembly was in prosecution of common object to commit murder of the deceased. 38. Thus, in the obtaining facts and circumstances. doubt is created that these accused had knowledge that the common object of the unlawful assembly was to commit murder of the deceased. In the absence of any cogent evidence on this point benefit of doubt accrues in favour of these appellants therefore the appellants accused are acquitted of the offence under sections 302 and 449 read with Section 149. IPC. However from the evidence on record the accused. namely, Ahlad Baraik, Prahalad Baraik, Chhotu Bariak, Lodro Baraik and Nand Kishore Baraik, are held guilty for the offence under Section 448 read with Section 149, IPC. 39. Accordingly, the conviction of the appellants for the offence under Sections 302/149 and 449/149. IPC is set aside and they are convicted for the offence under Section 448 read with Section 149. IPC. 39. Accordingly, the conviction of the appellants for the offence under Sections 302/149 and 449/149. IPC is set aside and they are convicted for the offence under Section 448 read with Section 149. IPC. On perusal of the record it transpires that the accused have remained in custody for more than five years accordingly they are sentenced, to the period already undergone by them. 40. Since the accused-appellants (Cr. Appeal Nos. 1370 of 2006 and 1510 of 2006) are on bail, accordingly they are discharged of their respective bail bonds and the liabilities thereof. 41. With the aforesaid modification in the impugned judgment, as indicated above, Cr. Appeal (D.B.) Nos. 1370 of 2006 and 1510 of 2006 are partly allowed and Cr. Appeal (D.B.) No. 622 of 2010 stands dismissed. Cri. Appeal No. 622 of 20 10 dismissed. Cri. Appeal Nos. 1370 and 1510 of 2006, Partly allowed.