Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA GOVT. APPEAL (DB) NO.37 OF 1990 ======================================================== THE STATE OF BIHAR……………………………..... ....APPELLANT/S VERSUS 1. SURENDRA KUMAR SON OF GIRWARDHAR KUMAR, R/O VILLAGE- DARGHAHPUR P.S.- BHAGWANPUR, DISTRICT- BEGUSARAI 2. SHIV SHANKER KUMAR SON OF DHANIK LAL KUMAR, R/O VILLAGE- JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI 3. BHASO KUMAR SON OF LATE SIYA SHARAN KUMAR, R/O VILLAGE- JHAMATIYA, P.S.- BACHHWARA, DISTRICT- BEGUSARAI 4. LAL BAHADUR YADAV SON OF DAROGI YADAV, R/O VILLAGE- JHAMATIYA, P.S.- BACHHWARA, DISTRICT- BEGUSARAI 5. SUDHIR YADAV SON OF BAIJNATH YADAV, R/O VILLAGE- NAREPUR, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI 6. UPENDRA YADAV SON OF BAIJNATH YADAV, R/O VILLAGE- JHAMATIYA, P.S.- BACHHWARA, DISTRICT- BEGUSARAI 7. UMESH KUMAR SON OF LATE SIA SHARAN KUMAR, R/O VILLAGE-JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI .... .... RESPONDENT/S WITH CRIMINAL REVISION NO. 314 OF 1990 ======================================================== DEO SUNDAR KUMAR SON OF SHRI RAMCHHARI KUMAR, R/O VILLAGE- JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI………………………...... .... PETITIONER/S VERSUS 1. SURENDRA KUMAR SON OF GIRWARDHAR KUMAR, R/O VILLAGE- DARGHAHPUR P.S.- BHAGWANPUR, DISTRICT- BEGUSARAI 2. SHIV SHANKER KUMAR SON OF DHANIK LAL KUMAR, R/O VILLAGE- JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI 3. BHASO KUMAR SON OF LATE SIYA SHARAN KUMAR, R/O VILLAGE- JHAMATIYA, P.S.- BACHHWARA, DISTRICT- BEGUSARAI 4. UMESH KUMAR SON OF LATE SIA SHARAN KUMAR, R/O VILLAGE-JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI 5. LAL BAHADUR YADAV SON OF DAROGI YADAV, R/O VILLAGE- JHAMATIYA, P.S.- BACHHWARA, DISTRICT- BEGUSARAI 6. SUDHIR YADAV SON OF BAIJNATH YADAV, R/O VILLAGE- NAREPUR, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI 7. UMESH KUMAR SON OF LATE SIA SHARAN KUMAR, R/O VILLAGE-JHAMATIA, P.S.- BACHHAWARA, DISTRICT- BEGUSARAI Patna High Court G. APP. (DB) No.37 of 1990 dt.23-11-2012 2 …………………………..OPPOSIT 1ST PARTIES 8. THE STATE OF BIHAR……………….OPPOSITE 2ND PARTY. ======================================================== Appearance : (In G. APP. (DB) No. 37 of 1990) For the Appellant/s : Mr. Ashwini Kumar Sinha, APP For the Respondent/s : None (In CR. REV. No. 314 of 1990) For the Petitioner/s : Mr. None For the Opposite Party : Mr. Ashwini Kumar Sinha, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 23-11-2012 The instant government appeal as well as the criminal revision has been preferred against the judgment of acquittal dated 4.8.1990 passed by the learned 4th Additional Sessions Judge, Begusarai in Sessions Trial No. 62 o 1990 by which the accused persons/respondents, namely, Surendra Kumar, Shiv Shanker Kumar, Bhaso Kumar, Lal Bahadur Yadav, Sudhir Yadav, Upendra Yadav and Umesh Kumar were acquitted from the charges under [STATUTE] and section 27 of the Arms Act. 2. The informant Dev Sunder Kumar (PW 5) on 16.6.1982 at 6.50 PM went to the medicine shop of Nizamul Hussain at Bachwara Bazar (Narepur) where he saw his son Surendra Kumar (deceased) standing at the tailoring shop of Idrish Miyan. In the mean time all the accused persons and one Ram Niranjan Chaudhary having country made pistol Patna High Court G. APP. (DB) No.37 of 1990 dt.23-11-2012 3 by forming unlawful assembly came in front of the tailoring shop of Idrish Miayan. Shiv Shankar Kumar was in possession of double barrel gun and a dagger in his hand. Other accused persons were possessing country made pistols with themselves. Surendra Kumar ordered for killing the son of the informant, upon which all the accused attacked upon the informant’s son. Firing of Bhaso Kumar caused injury on the chest of the informant’s son as a result of which he fell down, thereafter, accused Sudhir Yadav, Umesh Kumar, Lal Bahadur Yadav and Shiv Shankar Kumar fired on the deceased with their respective pistols and gun which led to death of the informant’s son. Upendra Yadav and Ram Niranjan Chaudhary entered in nearby fertilizer shop and dragged out the proprietor Gangaram Rai (PW 4) from the shop to the road and both the accused shot at him causing injury upon his mouth, stomach and arm. Gangaram Rai also fell down on the ground and the occurrence was witnessed by Brahamdev Kumar (PW 3), Kari Kumar (PW 2), Praduman Kumar (PW 1) and Sukhilal Kumar (not examined). The fard-beyan resulted into registration of Bachhwara P.S. Case No. 63 of 1982 dated 16.6.1982 under [STATUTE] and section 27 of the Arms Act. The Police submitted chargesheet showing the accused Niranjan Chaudhary absconder. 3. After taking cognizance the case was Patna High Court G. APP. (DB) No.37 of 1990 dt.23-11-2012 4 committed to the Court of Sessions where charges were explained to the accused who pleaded their innocence and trial proceeded. 4. Before the trial court the prosecution has examined 9 witnesses. PW 1 Praduman Kumar, PW 2 Kari Kumar, PW 3 Brahamdev Kumar, PW 4 Gangaram Rai and informant PW 5 were examined as witness to the occurrence. PW 6 Dr. Bibhas Chandra Choubey conducted post mortem upon the dead body of the deceased. PW 7 Dr. Shiv Nandan Prasad Singh examined the injured (PW 4) Gangaram Rai. PW 8 Raghunath Singh investigated the case. The formal witness was examined as PW 9 who proved the seizure list prepared by the Investigating Officer. 5. The Trial Court considered the prosecution version as well as the defence and found some irregularities in the prosecution version. The definite case of the prosecution was that the occurrence had taken place at the shop of Idris Miyan but he was not examined. The trial court found that he was the most important witness and the prosecution has withheld him without any explanation so this was noted promine

Applicable IPC Section: 149

Statute Text:
Section 149 of the Indian Penal Code. If an offence be committed by any member of an unlawful assembly, every other member of such assembly shall be guilty of the offence. 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.