‘Reportable’

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 716-717 OF 2008

Adalat Pandit & Anr. ... Appellants

Versus

State of Bihar ... Respondent

With

CRIMINAL APPEAL NOS. 119-122 of 2009  

Thakur Singh & Ors. … Appellants

Versus

State of Bihar … Respondent

With

CRIMINAL APPEAL NO. 833 of 2008

Gorakh Nath Singh …Appellant Versus

State of Bihar …Respondent

With

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CRIMINAL APPEAL NO. 1907 of 2009

Shri Thakur Ojha …Appellant

Versus The State of Bihar …Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal Nos. 716-717 of 2008,  

Criminal Appeal Nos. 119-122 of 2009, Criminal Appeal No. 833 of 2008  

and Criminal Appeal No. 1907 of 2009.  All these appeals are against the  

common judgment passed by the High Court, whereby the appeals filed by  

the  appellants  herein  came to  be  dismissed.   Initially,  as  many  as  10  

accused  persons  came  to  be  tried  for  the  offences  punishable  under  

Sections  147,  148,  302,  302  read  with  Section  34  as  also  read  with  

Sections  109  and  149  of  the  Indian  Penal  Code  (“IPC”  for  short  

hereinafter) and Section 27 of the Arms Act.  The prosecution alleged that  

on the fateful  day,  i.e.  5.7.1973,  at  about  7 a.m.,  the accused persons  

formed an unlawful assembly and committed the murder of one Shambhu  

Nath Singh and his brother Prabhu Nath Singh, both deceased persons, in  

pursuance of their common object.  The First Information Report (FIR) was  

lodged by one Baijnath Singh and it was alleged therein that one Thakur  

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Ojha (A-4), Patiram Ojha (now dead), Akhilesh Ojha (A-5), Jitendra Singh  

(A-6), Raj Nath Singh (A-7), Gorakh Nath Singh (A-3), Keshav Singh (A-9),  

Bachcha Singh (A-8), Adalat Pandit (A-10), Thakur Singh (A-1) and Ram  

Pravesh Singh (A-2) went to his Mango orchard standing on Plot No. 4905,  

situated in Mauza – Mohammadpur, P.S. Gorkha, Distt. Saran, which was  

situated  at  a  distance  of  about  three  furlong  from  village  for  forcibly  

plucking mango fruits.   

2. It  was  further  stated by Baijnath Singh that  he alongwith  his  two  

sons namely Shambhu Nath Singh and Prabhu Nath Singh went  to his  

orchard and protested against the act of the accused persons in plucking  

the  mangoes.   It  was  stated  that  Pati  Ram  Ojha  (the  dead  accused)  

ordered Thakur  Ojha (A-4) to attack on those three persons,  on which  

Thakur Ojha (A-4) fired two shots aiming at Shambhu Nath Singh, who  

was injured due to fire and tried to run away towards his house, but fell on  

the ground at some distance in the nearby orchard of one Arjun Singh.  It  

was then contended that Gorakh Nath Singh (A-3) went after him and gave  

spear  blow on the  back of  Shambhu Nath Singh while  Shambhu Nath  

Singh was still lying on the ground.  In the meantime, Thakur Ojha (A-4)  

again fired two shots on the elder son of Baijnath namely Prabhu Nath  

Singh, who also fell on the ground in the orchard of Arjun Singh.  After he  

fell down, Raj Nath Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit  

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(A-10) rushed to Prabhu Nath Singh and indiscriminately assaulted him by  

means of spear and his body was dragged by Raj Nath Singh (A-7) and  

Ram Pravesh Singh (A-2).  It was further stated in the FIR that on seeing  

this,  Baijnath  Singh  asked  himself  to  be  killed;  however,  Patiram Ojha  

(dead accused)  said  that  it  was  useless  to  cause  the  death  of  an  old  

person like him and that he should better be left to flee.  It was suggested  

that  one Laxman Singh (PW-8),  Arjun Singh,  Bhrigunath Singh (PW-7),  

Ram Prasad Singh (PW-4) and others were present on the spot and had  

seen the entire incident.  There was a fierce enmity between the two sides  

though  they  were  related  to  each  other,  on  account  of  ownership  and  

possession of the said orchard and a civil dispute was pending in the Court  

of 3rd Additional District Judge, Saran.   

3. The FIR was recorded by A.S.I. Abdul Malik of Garkha Police Station  

and the investigation ensued.  The Investigating Officer arrested the dead  

accused Patiram Ojha, Thakur Ojha (A-4), Jitendra Singh (A-6), Raj Nath  

Singh (A-7), Keshav Singh (A-9), Bachcha Singh (A-8), Thakur Singh (A-1)  

and Ram Pravesh Singh (A-2) from the house of Raj Nath Singh (A-7).  

The Investigating Officer effected the search of the house and recovered a  

double barrel gun kept on the cot under the bed.  Two spears were also  

recovered during the investigation, the blades of which were stained with  

blood.   The  seizures  were  effected  and  arrests  were  made.   In  the  

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meantime, one Shantruhan Singh (PW-15), the Officer-in-charge, Garkha  

Police Station reached the spot and took charge of the investigation from  

A.S.I.  Abdul  Malik.   He  carried  out  the  further  investigation;  effected  

Seizure Memo and Spot Panchnama etc. and recorded the statement of  

the witnesses.  On 21.9.1974, he made over the charge of investigation to  

one S.D. Ghos, who made over the investigation to one Madhav Kant and  

it  was  Madhav Kant  who  submitted the  chargesheet  against,  in  all,  11  

accused  persons  (including  the  dead  accused  Patiram  Ojha).   The  

accused persons were committed to Sessions Court.  The Sessions Court  

framed  the  charges.   The  accused  having  abjured  the  guilt,  the  trial  

proceeded and after the trial was over, the accused persons came to be  

convicted for the various offences i.e. offences punishable under Sections  

147, 148, 302, 302 read with Section 34 as also read with Sections 109  

and 149 IPC and Section 27 of the Arms Act.  Patiram Ojha (the dead  

accused) was not convicted as he died during the trial itself.  Out of all  

these accused persons, Thakur Singh (A-1) and Ram Pravesh Singh (A-2)  

were held guilty by the Sessions Court for the offence punishable under  

Section 147 while the remaining 8 accused persons were held guilty under  

Section 148 IPC.  Thakur Ojha (A-4) and Gorakh Nath Singh (A-3) were  

convicted for the substantive offence under Section 302 IPC for committing  

the murder of  Shambhu Nath Singh while Thakur Ojha (A-4),  Raj  Nath  

Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit (A-10) were convicted  

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for the offence punishable under Section 302 IPC for causing the death of  

Prabhu Nath Singh.  The remaining 5 accused persons namely Akhilesh  

Ojha (A-5), Jitendra Singh (A-6), Keshav Singh (A-9), Ram Pravesh Singh  

(A-2) and Thakur Singh (A-1) were booked under Section 302 read with  

Section 149 IPC.  Separate appeals were filed by these accused persons  

before the High Court.  While the appeals of the other accused persons  

were dismissed, the appeal filed on behalf  of Bachcha Singh (A-8) was  

allowed, giving him the benefit of the provisions of Juvenile Justice Act.  

The other  appeals were  dismissed and that  is  how 9 accused persons  

have come up before us in the present appeals.

4. It is significant to note that Gorakh Nath Singh (A-3) had raised a  

plea of alibi and examined as many as 11 defence witnesses in support of  

that plea.  That plea was of course rejected by the Trial Court. There were  

some defence witnesses examined on behalf of Adalat Pandit (A-10) also,  

raising the plea of alibi even in his case.  But even that contention was  

rejected by the Trial Court.  The other accused persons had merely made  

a plea of denial and their defence was also rejected.  The High Court has  

taken stock of evidence of all the witnesses in great details.  In fact, the  

evidence  of  practically  each  witness  of  the  prosecution  as  well  as  the  

defence was examined.

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5. Shri Nagendra Rai, Learned Senior Counsel has appeared for the  

appellants Thakur Singh (A-1), Ram Pravesh Singh (A-2), Akhilesh Ojha  

(A-5),  Jitendra Singh (A-6)  and Keshav Singh (A-9)  in  Criminal  Appeal  

Nos. 119-122 of 2009 and addressed on various aspects of the matter.  

Similarly, Shri S.B. Sanyal, Learned Senior Counsel has appeared for the  

appellant Gorakh Nath Singh (A-3) in Criminal Appeal No. 833 of 2008 and  

addressed on various aspects, while Shri M.P. Jha, Shri Ram Ekbal Roy,  

Shri Harshvardhan Jha and Shri Bhattacharjee, Learned Counsel (acted  

as  Amicus  Curiae)  addressed  on  behalf  of  other  appellants/accused  

persons,  namely  Thakur  Ojha  (A-4),  Raj  Nath  Singh  (A-7)  and  Adalat  

Pandit  (A-10).   Ms.  Kumud  Lata  Das  and  Shri  Gopal  Singh,  Learned  

Counsel have appeared for the State in all the cases and supported the  

conviction of the accused persons.  We will, therefore, consider the matter  

as per the appeals.

6. Shri  Nagendra Rai,  learned Senior  Counsel,  who represented the  

appellants Thakur Singh (A-1), Ram Pravesh Singh (A-2), Akhilesh Ojha  

(A-5),  Jitendra Singh (A-6)  and Keshav Singh (A-9)  in  Criminal  Appeal  

Nos. 119-122 of 2009, addressed firstly on behalf of Thakur Singh (A-1),  

Akhilesh Ojha (A-5) and Keshav Singh (A-9).  The learned Senior Counsel  

was at pains to point out that no witness has attributed any overt act to any  

of these accused persons and that they were mere mute bystanders.  Shri  

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Rai invited our attention to the evidence of the eye-witnesses, they being  

Sukeshwar  Singh (PW-2),  Ram Prasad Singh (PW-4),  Badrinath  Singh  

(PW-5), Bhrigunath Singh (PW-7) and Laxman Singh (PW-8).  He was at  

pains to point out that the High Court has specifically referred to each of  

these witnesses individually considering their evidence who were almost  

unanimous that they saw eleven accused persons when they came to the  

orchard  of  the  informant  (Baijnath  Singh).   The  witnesses  stated  that  

Baijnath Singh alongwith his two sons Shambhu Nath Singh and Prabhu  

Nath Singh had come a little later in the said orchard and the accused  

persons who wanted to pluck the mangoes, were stopped from doing so by  

Baijnath and in that the exchange of hot words took place.  The witnesses  

claimed that thereafter, on the orders of Patiram Ojha (the dead accused),  

Thakur Ojha (A-4) fired two shots with his gun hitting Shambunath Singh  

who ran towards the West and fell  down in the orchard of Arjun Singh.  

Thereafter, he was assaulted by Gorakh Nath Singh (A-3) on the back with  

a spear.   When Prabhu Nath Singh ran towards Shambhu Nath Singh,  

Thakur Ojha (A-4) again fired two shots on Prabhu Nath Singh and he also  

fell down in the orchard of Arjun Singh, whereafter, he was assaulted by  

Raj Nath Singh (A-7), Bachcha Singh (A-8) and Adalat Pandit (A-10).  It is  

to  be  seen  that  beyond  this  version,  nothing  more  has  come  in  the  

evidence.  It is further to be seen that the witnesses Ram Prasad Singh  

(PW-4),  Badrinath Singh (PW-5),  Bhrigunath Singh (PW-7) and Laxman  

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Singh  (PW-8)  had  seen  the  occurrence.   The  witnesses  then  saw the  

accused persons running away from the spot towards the house of Raj  

Nath Singh (A-7).  Almost same story was repeated by Ram Prasad Singh  

(PW-4) who claimed that he was present, as he had to cut bamboos from  

the place which was near the orchard of the informant Baijnath Singh.  He  

also admitted about the litigation between the parties.  There was omission  

about Thakur Ojha (A-4) having ordered for dragging the dead body to the  

orchard of the informant.   

7. Badrinath Singh (PW-5) also claimed that he had accompanied Ram  

Prasad Singh (PW-4) for cutting bamboos and he has also given almost  

the same version.  Bhrigunath Singh (PW-7) and Laxman Singh (PW-8)  

also have repeated the same story but without attributing any overt act to  

the aforementioned three accused persons, namely, Thakur Singh (A-1),  

Akhilesh  Ojha  (A-5)  and  Keshav  Singh  (A-9).   After  appreciating  the  

evidence of these witnesses, the High Court recorded a finding in Para 20  

of its judgment that the genesis of the incident lied only in the fact that  

when the accused persons insisted on plucking the mangoes, the same  

was  objected  to  by  the  complainant  and  his  sons.   The  High  Court,  

undoubtedly,  is correct in recording the finding that it  is on that point of  

time when the exchange of words took place between the parties that the  

seeds  of  the  further  incident  were  sown.   Ultimately,  the  High  Court  

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recorded the  finding  that  the identity  of  the accused persons was  fully  

established by the prosecution witnesses and that all the appellants had  

gone  to  the  place  of  occurrence  alongwith  their  respective  arms  as  

members of an unlawful assembly with a common object of asserting right  

of harvesting the mango crops in the orchard of the informant and were  

prepared for meeting any resistance with the help of arms carried by the  

accused persons and that was the common object behind the firing on the  

two deceased, who met their instantaneous death.  It was on this basis  

that  the  High  Court  proceeded to  convict  the accused persons against  

whom there was specific evidence.

8. In our opinion, at least insofar as the aforementioned three accused  

persons,  namely  Thakur  Singh  (A-1),  Akhilesh  Ojha  (A-5)  and  Keshav  

Singh (A-9) are concerned, it cannot be said that they had the intentions to  

commit  the murder and they cannot be said to be the members of  the  

unlawful  assembly  on  account  of  their  mere  presence  at  the  place  of  

occurrence and cannot be convicted of the offence under Section 302 read  

with  Section  149  IPC.   We  have  closely  seen  the  evidence  of  the  

witnesses.   These three accused persons were undoubtedly referred to  

and all that has been stated by Sukeshwar Singh (PW-2) is that Akhilesh  

Ojha (A-5) was  carrying a lathi.   The witness has not  referred to even  

Thakur Singh (A-1) and Keshav Singh (A-9) having any arms.  As regards  

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Ram Prasad  Singh  (PW-4),  he  has  attributed  Thakur  Singh  (A-1)  and  

Akhilesh Ojha (A-5) carrying a lathi while Keshav Singh (A-9) carrying a  

bhala (spear).  However, he has not referred to any overt act on part of  

these accused persons or use of the same by them.  Badrinath Singh (PW-

5) has mentioned about Thakur Singh (A-1) and Ram Pravesh Singh (A-2)  

having lathi.   He has made a general  statement  that all  other accused  

persons were holding a bhala.  However, this witness also has not referred  

to any overt act on the part of the above accused persons, namely Thakur  

Singh (A-1),  Akhilesh Ojha (A-5)  and Keshav Singh (A-9).   As regards  

Ram Lakhan Singh (PW-6), he has turned hostile.  Bhrigunath Singh (PW-

7) has also stated that these three accused persons were carrying lathi.  

The story is no different in respect of Laxman Singh (PW-8).  His evidence  

is extremely general.  Some of the witnesses have also not referred to the  

exhortation given by Patiram Ojha (the dead accused).  At least insofar as  

the  present  accused  persons  are  concerned,  the  role  played  by  these  

three accused persons, namely Thakur Singh (A-1), Akhilesh Ojha (A-5)  

and Keshav Singh (A-9) appears to be that of the bystanders.  There was  

a dispute between the parties on account of the possession of the field.  

Even the Court litigation was on between the parties.  Therefore, merely  

because the accused persons went to the field carrying lathis and arms, at  

least till such time when the exchange of words started and the shot was  

fired, it cannot be said that the whole assembly had become unlawful.  The  

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assembly would become unlawful when Patiram Ojha (the dead accused)  

allegedly gave the firing orders to Thakur Ojha (A-4) and who in pursuance  

of that, fired on Shambhu Nath Singh.  Undoubtedly, these three accused  

persons [Thakur Singh (A-1), Akhilesh Ojha (A-5) and Keshav Singh (A-9)]  

acted as mere mute bystanders,  as there is no evidence also that they  

took part in the exchange of words.  Under such circumstances, it would  

be  difficult  to  attribute  a  common object  to  these  accused  persons  on  

account of their presence even if they were armed with lathis.  There is no  

evidence  about  Akhilesh  Ojha  (A-5)  carrying  a  spear.   Under  such  

circumstances, benefit of doubt must go to these three accused persons.  

They would be entitled to acquittal as the prosecution has failed to prove  

that they had a common intention to commit murder.

9. Insofar  as  the  rest  of  the  accused  persons  are  concerned,  Shri  

Nagendra  Rai,  learned  Senior  Counsel  insisted  that  admittedly  Ram  

Pravesh Singh (A-2) and Jitendra Singh (A-6) had only dragged the body  

of  Prabhu  Nath  Singh.   That  would  certainly  amount  to  the  active  

participation of these two accused persons.  Their continuance even after  

the  firing  in  doing  overt  act  of  dragging  the  body  from the  field  would  

certainly  make them the  part  of  the  unlawful  assembly,  which  had  the  

common  object  of  eliminating  Shambhu  Nath  Singh  and  Prabhu  Nath  

Singh.  The part played by these two accused persons of dragging the  

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body of Prabhu Nath Singh is clearly referred to by the witnesses.  We,  

therefore, reject the contention raised by Shri Rai, learned Senior Counsel  

that these two accused persons would also be entitled to be acquitted for  

the same reasons as we have acquitted Thakur Singh (A-1), Akhilesh Ojha  

(A-5)  and Keshav Singh (A-9)  for.   The appeals of  these two accused  

persons would be liable to be dismissed as we are satisfied on the point  

that they were the members of the unlawful assembly.

10. Similar is the case as regards Thakur Ojha (A-4) who had actually  

fired  the  guns,  Raj  Nath  Singh  (A-7)  and  Adalat  Pandit  (A-10).   The  

evidence is against them as accepted by both the Courts below.  They  

were certainly the members of the unlawful assembly and specific overt  

acts have been attributed to them by almost all the witnesses.  As regards  

Thakur Ojha (A-4), all the witnesses are unanimous that he was the one  

who had fired.  His appeal will, therefore, have to be dismissed.   

11. Insofar  as  Raj  Nath  Singh  (A-7)  and  Adalat  Pandit  (A-10)  are  

concerned, they took active part in assaulting Prabhu Nath Singh while the  

body of Prabhu Nath Singh was dragged by Ram Pravesh Singh (A-2) and  

Jitendra Singh (A-6).  The witnesses have specifically attributed the overt  

acts regarding assaulting of Prabhu Nath Singh to these accused persons.  

We are satisfied  with  the evidence led on  behalf  of  the prosecution  in  

respect of these accused persons, which has been accepted by both the  

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Courts  below and we have no reason to disbelieve the witnesses  who  

have attributed specific overt acts as regards the assault on Prabhu Nath  

Singh  to  these  accused  persons.   Insofar  as  Adalat  Pandit  (A-10)  is  

concerned, the plea was that of alibi, which plea has been rejected by the  

Trial Court and the High Court.  Very heavy reliance was placed on the  

evidence of  Rajiv  Ranjan Shrivastava (DW-20),  Praduman Dubey (DW-

21),  A.B.  Prasad  (DW-22),  Col.  Pritam Singh  (DW-25)  and  Col.  Amrik  

Singh (DW-26)  for  his  alibi.   Rajiv  Ranjan  Shrivastava  (DW-20)  was  a  

handwriting expert for proving the signatures of Adalat Pandit (A-10) over  

the postal receipt Exhibit-6.  His evidence has rightly been disbelieved on  

the ground that he had prepared his report on the previous evening after  

taking fees.  Praduman Dubey (DW-21) was a Head Clerk in the Sainik  

Office, Danapur and he proved the leave register of Adalat Pandit (A-10)  

as Exhibit O.  A.B. Prasad (DW-22) was also an employee in the Pay &  

Accounts  Office,  Sainik  Office,  Danapur.   He  proved  the  pay  book  of  

Adalat Pandit (A-10) as Exhibit P and his acquittance roll as Exhibit Q.  It  

was suggested that Adalat Pandit (A-10) was on leave from 11.6.1973 till  

2.7.1973  and  that  he  received  the  payment  on  26.5.1973  as  also  on  

3.7.1973.  The High Court has disbelieved this evidence on the ground that  

the document did not show the date 3.7.1973.  Col. Pritam Singh (DW-25)  

was a commanding officer of 10, Bihar Regiment at the relevant time and  

he  had  admitted  that  he  had  no  personal  knowledge  regarding  actual  

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presence of Adalat Pandit (A-10) on the said date.  Similarly, Col. Amrik  

Singh (DW-26) had claimed that by an order dated 26.1.1973, the leave of  

Adalat Pandit (A-10) was extended for 14 days from 6.4.1973 to 19.4.1973  

because Adalat Pandit (A-10) did not resume his duty on 6.4.1973.  The  

High Court has rejected his evidence and for good reasons.  The assertion  

of Col. Amrik Singh (DW-26) that Adalat Pandit (A-10) was present in the  

unit on 3.7.1973 was only on the basis of Exhibits P and Q being the pay  

book and acquittance roll of Adalat Pandit (A-10) respectively.  Exhibits P  

and  Q  have  rightly  been  disbelieved  by  the  High  Court  giving  good  

reasons.   The High Court  has rightly  held that  Exhibits  P and Q were  

casually maintained by the Havildar and a poor attempt had been made to  

show that Adalat Pandit (A-10) had reported for duty on 3.7.1973.  We are  

convinced that the plea of alibi by Adalat Pandit (A-10) cannot be accepted  

and has to be disbelieved as has been done by the Trial Court and the  

appellate  Court.   We  would  accept  the  evidence  of  the  prosecution  

witnesses,  more  particularly  the  eye-witnesses,  who  had  specifically  

attributed an active role to this accused person.  The appeals of Raj Nath  

Singh (A-7) and Adalat Pandit (A-10) will, therefore, have to be dismissed  

holding that they were members of the unlawful assembly.  We, therefore,  

confirm the judgments of the Trial Court and the appellate Court convicting  

Raj Nath Singh (A-7) and Adalat Pandit (A-10) with the aid of Section 149  

IPC.

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12. That leaves us with the case of Gorakh Nath Singh (A-3).  It must be  

appreciated that Gorakh Nath Singh (A-3) has been mentioned practically  

by  all  the  witnesses.   All  the  eye-witnesses  have  also  referred  to  the  

specific overt act of this accused of following Shambhu and hitting him with  

spear  on  his  back.   Sukeshwar  Singh  (PW-2)  is  very  specific  in  his  

evidence insofar as the said act of the accused was concerned.  Some  

cross-examination was directed to suggest that Gorakh Nath Singh (A-3)  

would have no reason or motive to take part in the assault.  However, the  

main claim in the evidence of this witness regarding the overt act remained  

unshaken.  Similar is the story of Ram Prasad Singh (PW-4).  The cross-

examination  of  Ram  Prasad  Singh  (PW-4)  is  also  of  no  consequence  

insofar as the main incident is concerned.  Badrinath Singh (PW-5) also  

repeated the same story without any substantial challenge to this version  

in  the  cross-examination.   A  typical  suggestion  was  given  to  all  the  

witnesses as if Gorakh Nath Singh had issued a warrant for lagan (tax) on  

these witnesses.  Bhrigunath Singh (PW-7) also repeated the same story  

and there is very little or no cross-examination on the main incident.  In the  

cross-examination of this witness itself, the same stereotyped suggestion  

was given that Gorakh Nath had issued a lagaan against the father of this  

witness, thereby suggesting an enmity.  Laxman Singh (PW-8) is the only  

exception,  who  though  referred  to  the  presence  of  this  accused  duly  

armed,  has  not  referred  to  the  overt  act  of  this  accused  of  piercing  

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Shambhu  with  a  spear.   We  will  not  attach  much  importance  to  the  

evidence of this witness in view of the evidence of the other eye-witnesses.  

It is again to be seen that the evidence of the eye-witnesses in respect of  

the  spear  injuries  on  Shambhu  Nath  Singh  and  Prabhu Nath  Singh  is  

further corroborated by the medical evidence inasmuch as both Shambhu  

Nath Singh and Prabhu Nath Singh had suffered penetrating wounds and  

incised wounds in addition to the wounds caused by pellets.  The Post  

Mortem Report was prepared by Dr. B.M. Srivastava (dead) as proved by  

Dr. J.C. Brahmo, who has proved all the injuries which are to be found in  

the Post Mortem Report (Exhibits 5 and 5/1).  Therefore, there is very little  

scope for the argument that Gorakh Nath Singh (A-3) was not a part of the  

unlawful assembly and had not caused the wound to Shambhu Nath Singh  

with  spear  after  he  was  fired  at.   The  argument  of  Shri  S.B.  Sanyal,  

Learned  Senior  Counsel,  appearing  on  behalf  of  the  appellant/accused  

Gorakh Nath Singh (A-3) that this accused was not concerned and has  

been falsely implicated, cannot, therefore, be accepted.  Finding this, the  

learned  Senior  Counsel  heavily  relied  on  the  evidence  of  defence  

witnesses,  who  were  examined  in  support  of  the  plea  of  alibi  of  this  

accused as also the evidence of Sultan Ahmad (PW-14).

13. Sultan Ahmad (PW-14) was a Block Development Officer (BDO) of  

the said area.  He deposed that Gorakh Nath Singh was a Gram Sewak in  

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his  block and was  working  in  Devariya Panchpariya  village  Panchayat.  

Regarding the fateful day, the witness deposed that he went on that day to  

Devariya to collect levy of wheat crops and reached Devariya at about 1 o’  

clock in the afternoon.  He stated that Gorakh Nath Singh reached after  

half an hour later when he reached there.  He also suggested that there  

was  a Special  Planning  for  levying  wheat  in  those days.   The witness  

suggested  that  one  Umashankar  was  Block  Agriculture  Officer  and  he  

alongwith Gorakh Nath Singh (A-3) and other witnesses like one Kuldeep  

Singh,  Karamchari  (DW-8),  Ram Sewak,  Jan  Sewak  and  Mukhiya  and  

Sarpanch of the Panchyat (DW-7) were levying wheat at that time.  Shri  

Sanyal,  learned Senior Counsel, while trying to taking advantage of the  

evidence of this witness,  also asserted that his claim that  Gorakh Nath  

Singh  (A-3)  reached  there  at  about  1  o’  clock,  was  not  correct.   The  

learned Senior Counsel relied on an omission in that behalf.  The learned  

Senior Counsel also heavily relied on the evidence of Kapil Narayan Sinha  

(DW-1), a Deputy Superintendent of Police, who proved the carbon copy of  

a report which he had prepared in pursuance of the orders passed by the  

Superintendent of Police.  This was on account of an application having  

been made by Gorakh Nath Singh (A-3), claiming that he was in fact not  

present at the spot and was busy in the activity of wheat levy in the other  

village.  The witness also proved the application of Gorakh Nath Singh at  

Exhibit C.  It is to be seen that he had to admit that even after preparing  

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the said so-called report, the Superintendent of Police had ordered to file  

the chargesheet against Gorakh Nath Singh (A-3).   

14. The  other  witness  relied  on  by  the  learned  Senior  Counsel  was  

Kailash Singh (DW-2), who deposed that the levy was being collected from  

6 o’ clock in the morning at the door of Mukhiya Ram Barai Singh and the  

payment of the levied wheat was being paid after taking its weight there.  

According to him, other witness namely Ram Sewak Roy was weighing the  

wheat.  According to him, the weight of his wheat was also taken and the  

receipt for that was written and signed by Gorakh Nath Singh (A-3) and the  

payment  was  also  made  to  him  after  obtaining  his  signatures  on  the  

receipt.   He produced Exhibit  D being a  receipt  written  and signed  by  

Gorakh Nath Singh (A-3) on that day.  In his cross-examination, however,  

he was unable to show any notice having been given by BDO to him and  

had to admit that BDO had never asked for levy to him.  Similar was the  

evidence of Munshilal Roy (DW-3), who spoke about his reaching the spot  

at about 6 o’ clock in the morning to the house of Ram Barai, Mukhiya with  

wheat  of  levy.   He also spoke that  Ram Sewak Roy was weighing the  

wheat and Gorakh Nath Singh (A-3) was writing on the receipts (Exhibit D-

1) for that.  He could not produce the notice which was allegedly given to  

him by the Department for levy.  He did not even know how much levy  

wheat was required to be given by him.  The witness also could not show  

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anything  to suggest  that  the levy was  being collected from a particular  

house.  He frankly admitted that he never met BDO.

15. To the same effect was the evidence of Ram Pravesh Singh (DW-4),  

who  generally  spoke  about  the  levy  activity  and  asserted  that  it  was  

Gorakh Nath Singh (A-3) who was writing the receipts and was distributing  

the amounts on that day and that the levy work was started at 6 o’ clock in  

the morning and Gorakh Nath Singh was with the Group of levy since that  

time.   Similar  was  the  evidence  of  Fulkan  Manjhi  (DW-5),  who  was  a  

Chowkidar at Madhupur, P.S. Gorkha, District Saran.  He also spoke about  

the said activity of  levy and the fact that Gorakh Nath Singh (A-3) was  

present writing the receipt and paying money to the farmers.  Ram Barai  

Singh (DW-7) was Mukhiya of Devariya, Panchpariya Gram Pranchayat,  

who asserted that it was at his door that the special levy collection was  

going on, which exercise started at 6 o’ clock in the morning.  The witness  

further asserted that Gorakh Nath Singh (A-3) was paying the cost of levy  

wheat after making receipts of that and he had done this work from 6 o’  

clock in the morning to 11 o’ clock in day time on that day.  The witness,  

however, could not produce any documentary evidence to show that the  

levy work was done at his place.  The evidence of Kuldeep Narayan Singh  

(DW-8) was to the same effect.  He was a Karamchari and said that there  

was a levy going on on 5.7.1973.  He also suggested that Gorakh Nath  

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Singh (A-3) was present for the levy and was continuously working from 6  

o’ clock in the morning till 12 o’ clock in the day time on that day.  The  

evidence of Ram Lal Manjhi (DW-9) was to the same effect, so also the  

evidence  of  the  landlord  of  Gorakh  Nath  Singh  (A-3),  namely  Vidya  

Narayan Singh, who as DW-10 claimed that Gorakh Nath Singh (A-3) had  

taken room in his house and had gone for the levy work at 5.45 a.m.  The  

evidence of Adya Narayan Singh (DW-11), who was a Panchayat Sewak  

in the Gorkha Block, was also to the same effect.  He proved a document  

as  Exhibit  DF,  which  was  a  carbon  copy  of  the  slip  (receipt),  as  also  

Exhibits 3/2 and 3/3 being the registers bearing the signatures of Gorakh  

Nath Singh (A-3).  Ram Nagina Singh (DW-16) and Sona Lal Sah (DW-17)  

also asserted about the levy.  Both the Courts had chosen to accept the  

evidence  of  the  eye-witnesses  and  have  rejected  the  evidence  led  on  

behalf of the defence.

16. It is to be noted that these witnesses were all interested witnesses in  

the  sense  that  they  were  the  colleagues  of  Gorakh  Nath  Singh  (A-3).  

Before we venture to appreciate this evidence, it must be noted that the  

distance between the spot where the incident took place and the place  

where the accused Gorakh Nath Singh claimed to have been present is  

extremely short.  Admittedly, it is 3 or 4 kilometers.  When all the witnesses  

claimed that the work of levy began from 6 o’ clock in the morning, it is a  

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very  difficult  claim to  be  accepted.   In  the  first  place,  there  is  nothing  

proved by way of documentary evidence to show that the levy of wheat  

was to be collected at the house of Ram Barai Singh, Mukhiya (DW-7) or  

that the levy was proposed to be held at village Devariya Panchpariya on  

that day.  We cannot accept that there would be no documentary evidence,  

particularly  if  it  was  an exercise  of  levy.   There  is  bound  to  be  some  

records somewhere.  We are not much impressed by the receipts, which  

have  been  filed  by  the  witnesses  because  there  is  nothing  on  those  

receipts as to when they were actually prepared.  In fact, the evidence of  

Sultan Ahmad (PW-14) could not be demolished when he said that he had  

reached the place where the levy work was going on and it was at about 1  

o’ clock that Gorakh Nath Singh (A-3) arrived there alongwith others.  The  

Trial  Court  thoroughly  discussed  this  evidence  and  held  it  to  be  not  

reliable.  In view of the very short distance of 4 kilometers between the two  

places i.e. the place of incident Mauza – Mohammadpur and the village  

Devariya Panchpariya, the evidence appears to be extremely doubtful.  We  

are also not impressed by the evidence of Kapil Narayan Sinha (DW-1),  

Deputy Superintendent of Police, as nothing would turn open the so-called  

report  prepared  by  him  in  view  of  the  direct  evidence  led  by  the  

prosecution.  In our opinion, the Trial Court and the appellate Court were  

right in rejecting the defence of alibi.

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17. A few decisions were referred to during the debate, which are as  

follows:-

(i) Satbir Singh & Ors. Vs. State of Uttar Pradesh [2009 (13)   

SCC 790].  This decision was relied upon to show that the  

non-examination of the concerned medical officer would affect  

the prosecution case.  This was probably in order to show that  

the original Doctor (Dr.  B.M. Srivastava) who had done the  

Post Mortem, had expired and the Post Mortem Report had to  

be proved by another Doctor namely Dr. J.C. Brahmo.  We do  

not find anything wrong with the Report having been proved  

by the other Doctor.

(ii) Maranadu & Anr. Vs. State by Inspector of Police, Tamil   

Nadu [2008 (16) SCC 529].  This decision is on the question  

of  law  under  Section  149  IPC.   This  Court  has  cautioned  

against  the  acceptance  of  the  evidence  of  the  partisan  

witnesses, particularly in case involving Section 149 IPC.  We  

do not find this case to be of any support to the prosecution.  

However,  while  stating  the  principles  of  appreciation  of  

evidence,  this  Court  relied  on  the  decision  in  Masalti  Vs.  

State of U.P. [AIR 1965 SC 202],  wherein it  was observed  

that:-

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“it  would  be  unreasonable  to  contend  that  evidence  given  by  witnesses  should  be  discarded  only  on  the  ground  that  it  is  evidence  of  partisan  or  interested  witnesses.  The mechanical rejection of such evidence  on the sole ground that it is partisan, would invariably  lead to failure of justice.”

We are quite convinced in this case that the evidence of  

the eye-witnesses, though they were somewhat partisan, was  

liable  to  be  accepted,  excepting  against  the  three  accused  

persons who were acquitted.  We have given the reasons for  

acceptance of that evidence and also for the acquittal of three  

accused persons, who could not be held to be the part of the  

unlawful assembly.

(iii) Yunis alias Kariya Vs. State of M.P. [2003 (1) SCC 425].   

This  decision  was  relied  upon  to  suggest  that  when  eight  

accused persons armed with  deadly weapons,  attacked the  

deceased in broad daylight in a marketplace causing his death  

and  the  same was  witnessed  by  several  persons,  three  of  

whom were  eye-witnesses  and  where  the  testimony  of  the  

eye-witnesses was tallying with each other, the oral testimony  

of  the  eye-witnesses  as  well  as  the  medical  and  other  

evidence established the commission of crime.  In fact,  the  

decision in this case is completely against the defence.  This  

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was also a case under Section 149 IPC, which was held to be  

established on the basis of evidence and for good reasons.

(iv) Ramesh & Anr. Vs. State of Uttar Pradesh etc. etc. [2009   

(15) SCC 513].  This is also a decision by this Court on the  

appreciation of evidence.  In this case also, it was held that  

the minor contradictions,  inconsistencies, exaggerations and  

embellishments in the testimonies of the eye-witnesses were  

bound  to  be  there,  however,  they,  by  themselves,  did  not  

decide the credibility of the witness which has to be tested by  

the Court.

The other  decisions  referred to  are  Akhtar  & Ors.  Vs.  State  of  

Uttaranchal [2009 (13) SCC 722],  Ram Dular Rai & Ors. Vs. State of   

Bihar  [2003 (12)  SCC 352] and  Munshi  Prasad & Ors.  Vs.  State of  

Bihar [2002 (1) SCC 351],  which are of no consequence either for the  

prosecution or the defence.

18. In the result, the appeals of Thakur Singh (A-1), Akhilesh Ojha (A-5)  

and Keshav Singh (A-9) are allowed and that of Ram Pravesh Singh (A-2),  

Gorakh Nath Singh (A-3),  Thakur  Ojha  (A-4),  Jitendra Singh (A-6),  Raj  

Nath Singh (A-7) and Adalat Pandit (A-10) are dismissed for the reasons  

as  stated  above.   The  acquitted  appellants/accused  shall  be  released  

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forthwith unless required in any other matter.  The bail bonds, if any, shall  

stand cancelled.

………………………………….J. (V.S. Sirpurkar)

…………………………………….J. (Dr. Mukundakam Sharma)

New Delhi; May 14, 2010

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