1. Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant; Sri Arvind Agrawal, learned counsel for the informant and learned A.G.A for the State.

2. There is allegation in the FIR that there is dispute regarding land between the informant and co-accused, Vijay Nath Mishra and a civil suit is pending before the civil Court. Despite pendency of civil suit today i.e., on 11.02.2022, co-accused, Vijay Nath Mishra, was constructing a balcony, hence the informant went to him and asked him to stop the construction. Co-accused, Vijay Nath Mishra, along with other co-accused persons started abusing him and started beating him by lathi, sariya, knife and hammer. Co-accused, Krishnawati, wife of Vijay Nath Mishra and his daughter, Reeta Mishra, were exhorting the other named co-accused. Sister of the informant, Kanya Kumari, came to save him and thereafter the accused persons left him and put his sister on fire. Initially the FIR was lodged under Section 326 IPC and other sections but later implication was converted under Section 306 IPC and other Sections.

3. Learned counsel for the applicant submits that he has been implicated in this case on account of ulterior motives being son of co-accused, Vijay Nath Mishra. He has submitted that the informant suffered only simple injuries. In C.D. No. 12, the investigating officer has recorded that when the informant was being beaten the deceased, Kanya Kumari, set herself on fire. He has submitted that only to prevent the accused persons from beating her father, she took the extreme step of putting herself on fire. Hence, the implication of the applicant and other accused have been made under Section 306 IPC and not under Section 302 IPC. He has pointed out that the bail application of father of the applicant, namely, Vijay Nath Mishra, has been rejected by this Court. One of the co-accused, S.K. Mishra, was granted anticipatory bail by this Court which was challenged before the Apex Court and the Apex Court has set aside the same. The copy of the plaint, written statement and injunction suit along with order of injunction directing the parties to maintain status quo with regard to property in dispute has been brought on record.

4. Counsel for the informant has vehemently opposed the bail application and has submitted that the accused persons set the sister of the informant on fire. The statements of the witnesses were recorded wherein the aforesaid fact was reiterated. There is also a dying declaration recorded in presence of the Magistrate which is against the applicant. The statement of the mother of the deceased is also against the applicant. The investigating officer has relied upon the C.C.T.V footage of the C.D provided by Subhadra Kumari, the mother of the informant.

5. The concerned Circle Officer issued show cause notice to the investigating officer regarding the consideration of the C.C.T.V footage and the video clip prepared on its basis.

6. Counsel for the applicant has rejoined and has submitted that C.D has been relied upon by investigating officer only after obtaining a certificate under Section 65 of the Evidence Act. He has submitted that C.D was given by the mother of the informant and not from accused side.

7. After hearing the rival contentions, this Court finds that in the statement of one eye-witness, Aditya Kumar Mishra, in C.D. No. 12 he has stated that when the informant, Vivekanand Mishra, was being abused and beaten by the accused persons, his daughter threatened that she will put herself on fire. Then wife of co-accused, Vijay Nath Mishra, and his daughter started abusing her and asked her to put herself on fire and die but the balcony shall be constructed by them. They did not stopped and kept on making construction and therefore on the instigation of accused persons, Kanya Kumari, put herself on fire. Similar statements of other eye-witnesses, namely, Aman Mishra and Ajeet Mishra, were also recorded.

8. In the statement of the eye-witnesses, it has come that the co-accused, Krishnawati and Reeta Mishra, abeted the deceased to commit suicide. There is no specific role assigned to the applicant regarding abetment of suicide. It is also not clear, as per the FIR allegations that who put the deceased sister of the informant on fire out of the 7 accused persons. The applicant has been implicated in this case, inter-alia, under Section 149 IPC also

9. Section 149 I.P.C is one of the most misused, misinterpreted and misleading provision of the present times so far as the investigation by the Investigating Officers of police or any other investigating agency of crime is concerned. The edifice of Section 149 I.P.C stands on substratum of Sections 141 I.P.C, 142 I.P.C and 143 I.P.C . Chapter VIII of the IPC provides for offences against the public tranquillity. Section 141 I.P.C defines unlawful assembly to be an assembly of five or more persons. They must have a common object, amongst others, to commit any mischief or criminal trespass, or other offence. Section 142 I.P.C postulates that whoever being aware of facts which render any assembly an unlawful one, intentionally joins the same would be a member of the same. Section 143 provides for punishment of being a member of unlawful assembly.

10. Section 149 I.P.C provides for constructive liability to every person of an unlawful assembly. If an offence is committed by any member thereof in prosecution of 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. Formation of unlawful assembly having its common object and knowledge of common object are matters of fact which are required to be proved by the prosecution beyond all reasonable doubt for securing conviction of an accused under Section 149 I.P.C. There cannot be any straight jacket formula to arrive at a finding as to who was the member of unlawful assembly and for which object the same was formed. It can be inferred and proved by the cogent evidence only.

11. Section 149 I.P.C has following three essentials (i) there must be unlawful assembly; (ii) commission of offence may be by any member of unlawful assembly; (iii) such offence must have been committed in prosecution of the common object of the assembly, or must be such as member of the assembly knew to be likely to be committed.

12. In the present case as per the allegations in the FIR, the condition number 2 is only satisfied but the condition nos. 1 and 3 required for constituting the offence under section 149 IPC is not made out since the formation of unlawful assembly as discussed hereinabove has not been proved nor there is evidence that all the accused persons shared a common object of putting the deceased-sister of the informant on fire.

13. The concept of constructive liability must not be so stretched as to lead to false implication of innocent person or if general allegations are made against large number of accused, the Court has to be cautious unless reasonable direct and indirect circumstances lend assurance to the prosecution case that all the accused shared common object of unlawful assembly and hence their implication / conviction not be justified, as held by the Apex Court in the case of Subal Ghorai and others Vs. State of West Bengal , 2013(4) SCC 607. Ready reference to paragraph 53 would be relevant :-

14. Apex Court has also cautioned that when there is sudden action by one member in the assembly, all are not liable. In the case of Roy Fernandes Vs. State of Goa , 2012(3) SCC 221, it was held that a group attack on the victim is not the only decisive factor to infer common object of the unlawful assembly. It would be useful to refer to paragraph 27 to 33 in this context :-

29. In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai Vs. Emperor [AIR 1946 Pat 242]:

30. This Court then reiterated the legal position as under:

31. In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572] this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of IPC was, therefore, attracted and the conviction of the members of the assembly for murder legally justified.

32. This Court analysed Section 149 in the following words:

33. In Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR 1960 SC 725], this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object.

As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar - Behera and Others Vs. State of Orissa [2002 ( 8) SCC 381] and Bishna Alias Bhiswadeb Mahato and Others Vs. State of West Bengal [2005 (12) SCC 657] similarly explain and reiterate the legal position on the subject.

15. Common object has to be ascertained from the member-ship, weapon used and the nature of injuries as well as other circumstances as held by the Apex Court in the case of Haramant Laxmappa Kukkadi Vs. State of Karnataka , 1994(1) SCC 736.

16. In view of the above considerations, case for grant of bail to the applicant is made out. He is in jail since 12.02.2022.

17. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India; considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I. , passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

18. Let the applicant, Prabhat Kumar Mishra, involved in Case Crime No. 100 of 2022, under Sections- 147, 148, 149, 352, 323, 306, 504 and 506 IPC , Police Station- Kotwali, District- Basti, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year as per Section 309 Cr.P.C from the date of production of certified copy of this order.

Order Date :- 24.01.2023 Rohit