ADALAT PANDIT & ANR.versusSTATE OF BIHAR

                    [2010] 7 S.C.R. 79

                ADALAT PANDIT & ANR.                         A
                            v.
                     STATE OF BIHAR
          (Criminal Appeal No. 716-717 of 2008)

                      MAY 14, 2010
                                                             B
[V. S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
                           JJ.)

     Penal Code, 1860 - ss. 147, 148, 302, 302 rlw s. 34, 109
and 149 - Murder - Enmity between the parties as regarcJ C
ownership and possession of mango orchard - Quarrel over
plucking of mangoes - Eleven accused persons formed
unlawful assembly and attacked complainant and his two sons
- Gun shots fired at sons, brutally attacked by spears and
body dragged to a certain distance resulting in instant death D
- Conviction of 11 accused u/ss. 147, 148, 302, 302 r/w s. 34,
109 and 149 ands. 27 of Arms Act by trial court- Conviction
of 9 accused persons upheld by High Court - On appeal,
held: Prosecution failed to prove that A-1, A-5 and A-9 had
common intention to commit the murder - Thus, given benefit E
of doubt and are acquitted - A-2, A-3, A-4, A-6, A-7 and A-10
were members of unlawful assembly - There was active
participation by them - A-4 had actually fired guns - Specific
overt acts attributed to A4, A-7 and A-10 by all the witnesses
- Evidence of eye-witnesses, though were partisan, is to be F
accepted - Plea of alibi of A 3 and A-10 rightly rejected by
courts below- Thus, conviction of A-2, A-3, A-4, A-6, A-7 and
A-10 upheld - Arms Act, 1959 - s. 27.

    According to the prosecution case, there was a fierce
enmity between the accused persons and the G
complainant on account of ownership and possession of
the mango orchard. On the fateful day, the accused
persons formed an unlawful assembly and committed the
murder of SN and his brother PN in pursuance of their
                          79                              H
    80     SUPREME COURT REPORTS             [2010] 7 S.C.R.


A common object. Eleven accused persons went to the
  mango orchard of the complainant for forcibly plucking
  mango fruits. When the complainant alongwith his two
  sons-SN and PN, protested against the act of accused
  persons in plucking the mangoes, accused persons
B attacked the three persons using fire arms and spear,
  resulting in the death of SN and PN. The accused
  persons were convicted for various offences punishable
  under ss. 147, 148, 302, 302 rw s 34 as also rw s. 109 and
  149 IPC and s. 27 of the Arms Act. A 4 died during the
c trial itself and A 8 was acquitted by the High Court giving
  him benefit of the Juvenile Justice Act. Hence these
  appeals by the nine accused persons.

      Allowing the appeals of A-1, A-5 and A-9 and
  dismissing that of A-2, A-3, A-4, A·6, A-7 and A-10, the
D Court

       HELD: 1.1 After appreciating the evidence of PW-2,
  PW-·4, PW-5, PW-7 and PW-8, the High Court recorded a
  finding that the genesis of the incident lied only in the
E 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 is correct in
  recording the finding that it is on that point of time when
  the exchange of words took place between the parties
F that the seeds of the further incident were sown.
  Ultimately, the High Court 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
G 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,
H who met their instantaneous death. It was on this basis
     ADALAT PANDIT & ANR. v. STATE OF BIHAR             81

that the High Court proceeded to convict the accused         A
persons against whom there was specific evidence. [Para
7) [91-G-H; 92-A-D]

        1.2 It cannot be said that A-1, A-5 and A-9 had the
  intentions to commit the murder and they cannot be said
                                                              6
  to be the members of the unlawful assembly on account 1
  of their mere presence at the place of occurrence and
  cannot be convicted of the offence u/s. 302/149 IPC. The
  evidence of the witnesses is seen closely. These three
  accused persons were undoubtedly referred to and all C
. that has been stated by PW-2 is that A-5 was carrying a
  /athi. The witness has not referred to even A-1 and A-9
  having any arms. As regards PW-4, he attributed A-1 and
· A-5 carrying a lathi while A-9 carrying a bhala (spear).
  However, did not refer to any overt act on part of these
  accused persons or use of the same by them. PW•5 D
-mentioned about A-1 and A-2 having lathi. He made a
  general statement that all other accused persons were ,
  holding a bhala. However, PW 5 did not refer to any overt
  act on the part of A-1, A-5 and A-9. PW-6 turned hostile.
  PW-7 also stated that A-1, A-5 and A-9 were carrying /athi. E
  The story is no different in respect of PW-8. His evidence
  is extremely general. Some of the witnesses did not refer
  to the exhortation given by the dead accused. At least
  insofar as the present accused persons are concerned,
  the role played by A-1, A-5 and A-9 appears to be that of F
  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 G
  of words started and the shot was fired, it cannot be said
  that the whole assembly had become unlawful. The
  assembly would become unlawful when the dead
  acc;osed allegedly gave the firing orders to A-4 and who
  in pursuance of that, fired on SN. Undoubtedly, these A- H
    82      SUPREME COURT REPORTS             [2010) 7 S.C.R.


 A 1, A-5 and 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 A-1, A-5 and A-9 on
   account of their presence even if they were armed with
 B lathis. There is no evidence about 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 failed to prove that they had
   a common intention to commit murder. [Para 8] [92-E-H;
 C 93-A-G]
        1.3 A-2 and A-6 had only dragged the body of PN.
   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
-D field would certainly make them the part of the unlawful
   assembly, which had the common object of eliminating
   SN and PN. The part played by these two accused
   persons of dragging the body of PN is clearly referred to
   by the witnesses. Thus, it cannot be said that A-2 and A-
 E 6 would also be entitled to be acquitted for the same
   reasons as A-1, A-5 and A-9 have been acquitted for.
   They were the members of the unlawful assembly. Similar
   is the case as regards A-4 who had actually fired the
   guns, A-7 and A-10. The evidence is against them as
 F 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 A-4, all the witnesses are
    unanimous that he was the one who had fired. [Paras 9
 G and 10] [94-A-F]
       1.4 A-7 and A-10 took active part in assaulting PN
   while the body of PN was dragged by A-2 and A-6. The
   witnesses specifically attributed the overt acts regarding
   assaulting of PN to these accused persons. The evidence
 H led on behalf of the prosecution in respect of these
        ADALAT PANDIT & ANR. v. STATE OF BIHAR               83

     accused persons, which has been accepted by both the A
     Courts below is satisfactory and there is no reason to
     disbelieve the witnesses who have attributed specific
     overt acts as regards the assault on PN to these accused
     persons. Insofar as A-10 is concerned, the plea was that
     of alibi, whil,;h plea has been rejected by the trial· court B
     and the High Court. Very heavy reliance was placed on
     the evidence of DW-20, DW-21, DW-22, DW-25 and DW-
     26 for his alibi. The plea of alibi by A-10 cannot be
     accepted and has to be disbelieved as has been done by
     the trial court and the appellate Court. The evidence of c
     the prosecution witnesses, more particularly the eye-
     witnesses, who had specifically attributed an active role
·!   to this accused person is accepted. The appeals of A-7
     and A-10 are dismissed holding that they were members
     of the unlawful assembly. Therefore, the judgments of the
                                                                  0
     trial court and the appellate court convicting A-7 and A-
     10 with the aid of s. 149 IPC is upheld. [Para 11) [94-G-H;
     95-A-B; 96-A-C]

         1.5 A-3 was mentioned practically by all the
     witnesses~ All the eye-witnesses referred to the specific     E
     overt act of A 3 of following SN and hitting him with spear
     on his baCk. 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 A-3
     would have no reason or motive to take part in the assault.   F
     However, the main claim in the evidence of PW-2
     regarding the overt act remained unshaken. Similar is the
     story of PW-4. The cross-examination of PW-4 is also of
     no consequence insofar as the main incident is
     concerned. PW-5 also repeated the same story without          G
     any substantial challenge to this version in the cross-
     examination. A typical suggestion was given to all the
     witnesses as if A-3 had issued a warrant for lagan (tax)
     on these witnesses. PW-7 also repeated the same story
     and there is very little or no cross-examination on the       H
   84     SUPREME COURT REPORTS              (2010] 7 S.C.R.

A main incident. In the cross-examination of PW 7 itself, the
  same stereotyped suggestion was given that A-3 had
  issued a lagaan against the father of PW 7, thereby
  suggesting an enmity. PW-8 is the only exception, who
  though referred to the presence of A-3 duly armed, did
B not refer to the overt act of A-3 of piercing SN with a
  spear. Much importance will not be attached to the
  evidence of PW 8 in view of the evidence of the other eye-
  witnesses. The evidence of the eye-witnesses in respect
  of the spear injuries on SN and PN is further
c corroborated by the medical evidence inasmuch as both
  SN and PN had suffered penetratin::J wounds and incised
  wounds in addition to the wounds caused by pellets. The
  Post Mortem Report was prepared by Dr. S (dead) as
  proved by Dr. J, who has proved all the injuries which are
  to be found in the Post Mortem Report. Therefore, there
0
  is very little scope for the argument that A-3 was not a
  part of the unlawful assembly and had not caused the
  wound to SN with spear after he was fired at. It cannot
  be said that A-3 was not concerned and has been falsely
E implicated. [Para 12) [96-D-H; 97-A-E]

       1.6 The witnesses-PW 14, OW 1 to 5, RS, OW 7 to 11,
  OW 16 and OW 17 were all interested witnesses since
  they were the colleagues of A-3. The distance between
  the spot where the incident took place and the place
F where the accused A-3 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 very difficult claim
  to be accepted. In the first place, there is nothing proved
G by way of documentary evidence to show that the levy
  of wheat was to be collected at the house of DW-7 or that
  the levy was proposed to be held at village DP on that
  day. It cannot be said that there would be no
  documentary evidence, particularly if it was an exercise
H of levy. There is bound to be some records somewhere.
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                 85

 The receipts, which have been filed by the witnesses are        A
 not impressing because there is nothing on those
 receipts as to when they were actually prepared. In fact,
 the evidence of PW-14 could not -De 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 A-3           8
 arrived there alongwith others. The trial court thoroughly
 discussed this evidence and held it not to be reliable. In
 view of the very short distance of 4 kilometers between
 the two places i.e. the place of incident M and the village
 DP, the evidence appears to be extremely doubtful. The          C
·evidence of DW-1, Deputy Superintendent of Police is not
 impressing as nothing would turn open the so-called
 report prepared by him in view of the direct evidence led
 by the prosecution. Th~-trial court and the appellate court
 were right in rejecting the defence of alibi. [Para 16) [100-
                                                                 0
 D-H; 101-A-B]

     1. 7 In the instant case, the evidence of the eye-
witnesses, though they were somewhat partisan, was
liable to be accepted, excepting against the three
accused persons A-1, A-5 and A-9. Hence they are                 E
acquitted. [Para 17] [102-B-C]

     Satbir Singh & Ors. Vs. State of Uttar Pradesh 2009 (13)
SCC 790; Maranadu & Anr. Vs. State by Inspector of Police,
Tamil Nadu 2008 (16) SCC 529; Masalti Vs. State of U.P. F
AIR 1965 SC 202; Yunis alias Kariya Vs. State of M.P. 2003
(1) SCC 425; Ramesh & Anr. Vs. State of Uttar Pradesh etc.
etc. 2009 (15) SCC 513; Akhtar & Ors. Vs. State of Uttaranchal
2009 (13) SCC 722; Ram Dular Rai & Ors. Vs. State ofBihar
2003 (12) SCC 352; Munshi Prasad & Ors. Vs. State of Bihar G
2002 (1) sec 351- referred to.
                     Case Law Reference:
     2009 (13) sec 190        Referred to.         Para 17
     2008 (16) sec 529        Referred to.         Para 17       H
                                       I
    86      SUPREME COURT REPORTS                 [2010) 7 S.C.R.


A        AIR 1965 SC 202           Referred to.        Para 17

         2003 (1) sec 425          Referred to.        Para 17

         2009 (15) sec 513         Referred to.        Para 17

         2009 (13) sec 122         Referred to.        Para 17
B
         2003 (12) sec 352         Referred to.        Para 17

         2002 (1) sec 351          Referred to.        Para 17

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
C Nos. 716-717 of 2008.

        From the judgment ~nd order dated 14J 1.2007 of the
    High Court of judicature at Patna in Criminal Appeal No. 296
    and 344 of 2001.
D                                  WITH

    Crl. A. Nos. 119-122 of 2009

    Crl. A. No. 833 of 2008 and

E Crl. A. No. 1907 of 2009.

      Nagendra Rai, S.B. Sanyal, Shantanu Sagar, Smarhar
  Singh, Abhishek Singh, T. Mahipal, Braj K. Mishra, Abhishek
  Yadav, Aparna Jha, Tanushree Sinha, M.P. Jha, Ram Ekbal Roy
F Harshavardhan Jha, Bhattacharjee and Kumud Lata Das (for
  Gopal Singh) for the appearing parties.

         The Judgment of the Court was delivered by
         V.S. SIRPURKAR, J. 1. This judgment will dispose of
G 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
H
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                 87
             [V.S. SIRPURKAR, J.]

dismissed. Initially, as many as 10 accused persons came to A
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 B
persons formed an unlawful assembly anp 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 C
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     o
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 E
Singh went to his orchard and protested against the act of the
accused persons in plucking the mangoes. It was stated that
Pa ti 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 F
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. G
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
(A-10) rushed to Prabhu Nath Singh and indiscriminately H
    88      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   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
B   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 en\ire
    incident. There was a fierce enmity between the two sides
c   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 AS.I. Abdul Malik of Garkha
  Police Station and the investigation ensued. The Investigating
D 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
E 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 meantime, one
  Shantruhan Singh (PW-15), the Officer-in-charge, Garkha
F 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,
G 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
H abjured the guilt, the trial proceeded and after the trial was over,
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                    89
             [V.S. SIRPURKAR, J.]

the accused persons came to be convicted for the various             A
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     B
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          c
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 for the offence punishable
under Section 302 IPC for causing the death of Prabhu Nath
Singh. The remaining 5 accused persons namely Akhilesh Ojha          D
(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
                                                                     E
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.
                                                                     F
     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         G
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     H
   90       SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A each witness of the prosecution as well as the defence was
  examined.

       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
8
  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
C 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,
D 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
E 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
F 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 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),
G 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
H
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                  91
             [V.S. SIRPURKAR, J.]
Singh alongwith his two sons Shambhu Nath Singh and Prabhu A
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 PatirantOjha (the dead accused), Thakur Ojha    s
(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        c
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
                                                                  0
Ram Prasad. Singh (PW-4), Badrinath Singh (PW-5),
Bhrigunath Singh (PW-7) and Laxman 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 E
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.                                                 F

     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 G
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 H
    92      SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A   of the incident lied only in the fact that w_pen the a~used
    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
s   the parties that the seeds of the further incident were sown.
    Ultimately, the High Court 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
c   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
0
    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
E 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
F 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
G Keshav Singh (A-9) having any arms. As regards 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
H by them. Badrinath Singh (PW-5) has mentioned about Thakur
       ADALAT PANDIT & ANR. v. STATE OF BIHAR                      93
                [V.S. SIRPURKAR, J.]

    $ingh (A-1) and Ram Pravesh Singh (A-2) having lathi. He has         A
 1
    rltlade a general statement that all other accused persons were
  . lnolding 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               B
    ~ostile. Bhrigunath Singh (PW-7) has also stated that these
    t,~ree accused persons were carrying lathi. The story is no
    different in respect of Laxman Singh (PW-8). His evidence is
    extreri:Jely general. Some of the witnesses have also not referred
    to the exhortation given by Patiram Ojha (the dead accused).         c
    At least insofar as the present accused persons are concerned,
    t~e 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.
                                                                         0
    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 start~d and the shot was fired, it cannot be said that the
\ , whole assembly had become unlawful. The assembly would
                                                                         E
    become unlawful  \
                           when Patiram Ojha (the dead accused)
    allegedly gave the firing orders to Thakur Ojha (A-4) and who
    in pursuan•ce 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         F
  · part''1.[l lh.e exchange of words. Under such circumstances, it
    wouldbe 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         G
     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                H
    94      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A 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
B 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 body of Prabhu Nath Singh is clearly
c 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
0 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
E 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
F 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
G 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
H by both the Courts below and we have no reason to disbelieve
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                    95
             [V.S. SIRPURKAR, J.]
             ,/
the witnesses who have attributed specific overt acts as regards    A
the assault on Prabhu Nath Singh to these accused persons.
Insofar as Adalat Pandit (A-1 O) 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 (OW-            B
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 Ada lat Pandit (A-10) over the postal receipt Exhibit-6. His
evidence has rightly been disbelieved on the ground that he had     c
prepared his report on the previous evenin~ after taking fees.
Praduman Dubey (DW-21) was a Head Clerk in the Sainik
Office, Oanapur and he proved the leave register of Adalat
Pandit (A-10) as Exhibit 0. A.B. Prasad (DW-22) was also an
employee in the Pay & Accounts Office, Sainik Office, Dan/ci~ur.
                                                                    0
 He proved the pay book of Ada lat Pandit (A-10) as Exhi!Jit 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.       E
 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 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          F
 leave of Adalat Pandit (A-10) was extended for 14 days from
 6.4.1973 to 19.4.1973 because Ada lat 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 Ada lat Pandit (A-10) was present in the unit   G
 on 3. 7.1973 was only on the basis of Exhibits P and Q being
 the pay book and acquittance roll of Ada lat Pandit (A-10)
 respectively. Exhibits P and Q have rightly been disbelieved by
 the High Court giving good reasons. The High Court has rightly
                                                                    H
    96      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A held that Exhibits P and Q were casually maintained by the
  Havildar and a poor attempt had been made to show that
  Ada lat Pandit (A-10) had reported for duty on 3. 7.1973. We are
  convinced that the plea of alibi by Ada lat Pandit (A-10) cannot
  be accepted and has to be disbelieved as has been done by
B 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
  Ada lat Pandit (A-10) will, therefore, have to be dismissed
c 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.

          12. That leaves us with the case of Gorakh Nath Singh (A-
D   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
E   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
F   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
G   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
H   stereotyped suggestion was given that Gorakh Nath had issued
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                     97
             [V.S. SIRPURKAR, J.]

 a lagaan against the father of this witness, thereby suggesting A
 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
 Shambhu with a srear. We will not attach much importance to
 the evidence of thi:; witness in view of the evidence of the other B
 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         c
  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 fof~he 0
  argument that Gorakh Nath Singh (A-3) was not a part of the
  unlawful assembly and had not caused the wound to Sbambhu
  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 E
  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).
                                                                      F
        13. Sultan Ahmad (PW-14) was a Block Development
  Officer (BOO) of the said area. He deposed that Gorakh Nath
  Singh was a Gram Sewak in 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 G
  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 H
    98       SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A 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
B 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),
c 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
0
  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
  the said so-called report, the Superintendent of Police had
  ordered to file the chargesheet against Gorakh Nath Singh (A-
E 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 Sarai Singh and the payment of the levied
F 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
G 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 BOO to him
  and had to admit that BOO had never asked for levy to him.
H Similar was the evidence of Munshilal Roy (DW-3), who spoke

                      •
    ADALAT PANDIT & ANR. v. STATE OF SIHAR                   99
             [VS. SIRPURKAR, J.]
about his reaching the spot at about 6 o' clock in the morning     A
to the house of Ram Sarai, 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 receip~s (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      s
even know how much levy wheat was required to be given by
him. The witness also could not show anything to suggest that
the levy was being collected from a particular house. He frankly
admitted that he never met SDO.

      15. To the same effect was the evidence of Ram Pravesh C
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. . D
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 Sarai Singh (DW-7) was Mukhiya E
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 F
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 G
was a levy going on on 5.7.1973. He also suggested that
Gorakh Nath 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 H ·
    100     SUPREME COURT REPORTS                   [201 OJ 7 S.C.R.


A th1:! 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
B same effect. He proved a document as Exhibit OF, 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
c 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
D   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
E   in the morning, it is a 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
F   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
G   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
H   discussed this evidence and held it to be not reliable. In view
   ADALAT PANDIT & ANR. v. STATE OF BIHAR                   101
            [V.S. SIRPURKAR, J.]
of the very short distance of 4 kilometers between the two A
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    s
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.

    17. A few decisions were referred to during the debate,         C
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_ D
            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 E.
            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           F
            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      G
            of appreciation of evidence, this Court relied on the
            _decision in Masalti Vs. State ofU.P. [AIR 1965 SC
            202], wherein it was observed that:-

    "it would be unreasonable to contend that evidence given        H
    102        SUPREME COURT REPORTS                     [2010] 7 S.C.R.


A         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
8
    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
C   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
D                  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
E                  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 was
                   also a case under Section 149 IPC, which was held
                   to be established on the basis of evidence and for
F
                   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
G                  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
H                  tested by the Court.
    ADALAT PANDIT & ANR. v. STATE OF BIHAR                 103
             [V.S. SIRPURKAR, J.]
    The other decisions referred to are Akhtar & Ors. Vs. State. A
of Uttarancha/ [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) sec 351), which are of no
consequence either for the prosecution or the defence.
                                                                   B
     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 C
stated above. The acquitted appellants/accused shall be
released forthwith unless required in any other matter. The bail .
bonds, if any, shall stand cancelled.

N.J.                                    Appeals disposed of.
                                                                  D