CRIMINAL APPEAL No.477 OF 1988 ----- Against the judgment of conviction and order Of sentence dated 30.08.1988 passed by 2nd Additional Sessions Judge, Bettiah in Sessions Trial No. 14 of 1983. ----- 1. Gobardhan Kaji. 2. Chandrabali Kaji. Sons of Bhajan Kaji. 3. Abilakh Kaji. 4. Kailash Kaji. Sons of Gobardhan Kaji. 5. Deonath Kaji, son of Chokat Kaji. 6. Jaleshwar Kaji, Son of Palat Mahto. 7. Girja Kaji, son of Jhakar Kaji. 8. Suresh Kaji, son of Lakshman Mahto. 9. Ramnath Kaji, Son of Chokat Kaji. 10.Jhakkar Kaji, son of Jagannath Kaji. All residents of village-Gamharia, Police Station-Gaunaha, District- West Champaran. ..Accused..Appellants. -Versus- The State of Bihar………………………………….Respondent. ----- For the Appellants: Mr. Ramakant Sharma,Sr. Advocate and M/S.L.K. Sharma & Rajesh Kumar, Advocates. For the State : Ms. Shashi Bala Verma, A.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S.K.Sharma & D.K.Singh,JJ. A supplementary affidavit sworn by Malik Singh, son of Late Satyadeo Singh, and nephew of appellant No. 1 has been filed and it has been submitted by Sri Rama Kant 2 Sharma, Senior counsel appearing on behalf of the appellants that appellant no. 1 Gobardhan Kaji and appellant no.2, Chandrabali Kaji both sons of late Bhajan Kaji, appellant no. 5 Deonath Kaji, son of late Chokat Kaji and appellant no. 10 Jhakkar Kaji, son of late Jagannath Kaji died respectively on 05.09.2000, 11.02.1998, 19.06.2006 and 13.08.2009. (2) The supplementary affidavit contains the certificates issued by Sarpanch, Gram- Kutchhari-Belsandi, P.S- Gaunaha, West Champaran showing the death of Gobardhan Kaji, Deonath Kaji, Jhakkar Kaji and Chandrabali Kaji. (3) In view of the supplementary affidavit containing the death certificates, which is not opposed by the learned Additional P.P., the appeal against appellant nos. 1, 2, 5 and 10 stands abated. (4) The other appellants, namely, Abilakh Kaji, Kailash Kaji, Jaleshwar Kaji, Girja Kaji, Suresh Kaji and Ramnath Kaji were tried alongwith four dead appellants and they were found guilty for committing offence under Section 147 of the Indian Penal Code by 3 the Learned 2nd Additional Sessions Judge, Bettiah, West Champaran vide its judgment dated 30.08.1988 in Sessions Trial No. 14 of 1983 arising of Gaunaha P.S. Case No. 64 of 1981 and sentenced under the aforesaid Section 147 of the Indian Penal Code to undergo rigorous imprisonment for two years each. (5) The appellant no. 1 Gobardhan Kaji was also tried alongwith others was held guilty under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. (6) The prosecution case is that one Nakchhed Missir has taken 16 Kathas of land in which the paddy was grown. The allegation in the F.I.R. was that on 06.10.1981 at about 11.00 A.M, the informant P.W.11, Baijnath Mahto, Baithawak of Nakchhed Missir and P.W.14 Nand Kishore Missir son of Nakchhed Missir went to the field alongwith 20-25 labourers for harvesting the crops which was grown by informant. The labourers were arranged from other villages because the labourers of Gamariya village have refused to work for the informant and his family 4 members. (7) The allegation is that about 100 persons armed with Lathi, Suila etc came. The appellants and other accused persons were amongst the mob and they indiscriminately started assaulting. Then the labourers and the informant tried to escape but appellant no. 1 Gobardhan Kaji(since dead) chased Laljee Baitha and assaulted on his head, by means of Lathi. Laljee Baitha fell down and became unconscious and even thereafter Gobardhan Kaji repeated blows after blows. Mukhlal(P.W.4), the informant and others escaped to hide themselves in the sugarcane field. The labourers were chased to some distance and Jangi Raut (P.W.7), Daulat (P.W.3), Shankar Manjhi (P.W.5) and Malakh Ram (not examined) were beaten by the accused persons. The accused persons looted away the paddy crops worth Rs. 1000/-. (8) On the basis of the fardbayan of the informant, the case was registered under Sections 147, 148, 149, 302, 323 and 379 of the Indian penal Code and after completion of the investigation charge sheet was submitted under Sections 147, 148, 149, 302, 307, 337 5 and 323 of the Indian Penal Code against the appellants and one another accused, namely, Chhatrasan Kaji but during pendency of the case, he died. (9) The case was committed to the Court of Sessions. The charges were framed and explained to the accused persons they pleaded not guilty. Hence, trial proceeded. (10) The defence was that they have been unnecessarily named as members of the mob and they have stated that they were in fact not present at the time of occurrence. Hence they can not be treated as members of unlawful assembly. Moreover, as no overt act is alleged against them. Their further defence was that the land was in possession of Gobardhan Kaji and members of prosecution party committed various acts of violence for which the matter was reported to the police which has resulted into registration of an F.I.R. (Ext-A). The litigation between the parties was pending before the L.R.D.C. vide Case no. 02 of 1982-83. (11) In view of the fact that the main accused Gobardhan Kaji who was found to be guilty under Section 302 of the Indian 6 Penal Code has been reported to be dead and it will not be necessary to discuss the entire facts leading to the appeal in detail. (12) At best the evidence against the rest appellants is that they were the members of unlawful assembly but if the evidence of witnesses is scanned properly then it appears that no allegation of assault is attributed against them. (13) On the point of presence of the appellants alongwith others in the mob it was difficult to observe that only these persons can be spotted in the mob of 100. There appears no valid explanation as to why only these appellants have singled out from the mob though the F.I.R. and the consistent evidence of the witnesses indicated that the mob was consisting of about 100 persons. 14. Considering various evidences on record we are of the view that there is nothing to prove the charges against these appellants that they were the members of unlawful assembly which have committed the offence. As such they deserve to be acquitted. 15. In the result, the judgment of 7 conviction and the order of sentence dated 30.08.1988 passed against these appellants is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are directed to be discharged from the liabilities of their respective bail bonds. Patna High Court Dated 16th September,2010 U.K./ N.A.F.R. (Shyam Kishore Sharma, J) (Dinesh Kumar Singh, J)