1 - Smt. Sunita W/o Hridesh, Aged About 22 Years R/o Village Raisara, P.S v. 1 - State of Chhattisgarh Through Office In Charge P.S. Jhilmili District Surajpur, Chhattisgarh
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR Digitally signed by INDRAJEET SAHU Date: 2025.04.17 17:13:14 +0530 CRA No. 1374 of 2017 1 - Smt. Sunita W/o Hridesh, Aged About 22 Years R/o Village Raisara, P.S. Jhilmili, District Surajpur, Chhattisgarh. --- Appellant versus 1 - State of Chhattisgarh Through Office In Charge P.S. Jhilmili District Surajpur, Chhattisgarh. --- Respondent CRA No. 324 of 2018 1 - Nanku S/o Sukhram Aged About 45 Years R/o Village- Raisara, Police Station- Jhilmili, District- Surajpur, Chhattisgarh. 2 - Ramsunder S/o Ramfal Aged About 25 Years R/o Village- Raisara, Police Station- Jhilmili, District- Surajpur, Chhattisgarh. 3 - Smt. Supali W/o Ramsunder Aged About 25 Years R/o Village- Raisara, Police Station- Jhilmili, District- Surajpur, Chhattisgarh. Versus 1 - State of Chhattisgarh Through The Incharge, Outpost Chendra, Police Station- Jhilmili, District - Surajpur, Chhattisgarh. ---Appellant --- Respondent CRA No. 1999 of 2019 1 - Ramfal S/o Sukhram Agariya Aged About 55 Years R/o Village Raisara, Police Station Jhilmili District Surajpur Chhattisgarh. 2 - Hirday S/o Ramfal Aged About 20 Years R/o Village Raisara, Police Station Jhilmili District Surajpur Chhattisgarh. 3 - Bhondu S/o Nanku Aged About 20 Years R/o Village Raisara, Police Station Jhilmili District Surajpur Chhattisgarh. 4 - Tijo Bai W/o Ramfal Aged About 45 Years R/o Village Raisara, Police Station Jhilmili District Surajpur Chhattisgarh. Versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Jhilmili District Surajpur Chhattisgarh. ---Appellant --- Respondent CRA No. 880 of 2018 1 - Lala @ Larbhar S/o Shri Nanku Agariya Aged About 19 Years R/o Anrokha, P. S. Bhatgaon, Distt. Surajpur Chhattisgarh. Versus ---Appellant 2 1 - State of Chhattisgarh Through The Station House Officer, Police Station Jhilmili, Distt. Surajpur Chhattisgarh. --- Respondent For Appellants For State : : Shri Santosh Bharat, Shri Rahul Mishra, Shri Dashrath Kushwaha and Shri C.R. Sahu, Advocates. Shri Jitendra Shrivastava, Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 14.01. 202 5 1. All these appeals arise out of same crime number, same incident, same sessions trial and therefore, they are being heard and decided together by his common judgment. 2. CRA No.324 of 2018 and 1999 of 2019 arise out of judgment of conviction and order of sentence dated 23.03.2017 passed by IIIrd Additional Sessions Judge, Surajpur, in Sessions Case No.49 of 2014 whereby the appellants have been convicted for the offence under Sections 304-Part-I read with Section 149 and 148 IPC and sentenced for RI for 10 years with fine of Rs.200/-, in default of payment of fine, additional RI for 2 months and RI for 3 years with fine of Rs.200/-, in default of payment of fine amount, additional RI for 2 months respectively. 3.
Legal Reasoning
CRA No.1374 of 2017 has been filed by the appellant Smt. Sunita against the impugned judgment of conviction and order of sentence dated 17.05.2017 passed by IIIrd Additional Sessions Judge, Surajpur, in Sessions Case No.49 of 2014 whereby the appellant Smt. Sunita has also been convicted for the offence under Sections 304-Part-I read with Section 149 and 148 IPC and sentenced for RI for 10 years with fine of Rs.200/-, in default of payment of fine, additional RI for 2 3 months and RI for 3 years with fine of Rs.200/-, in default of payment of fine amount, additional RI for 2 months respectively. 4. CRA No.880 of 2018 has been filed the appellant Lala @ Larbhar against the impugned judgment of conviction and order of sentence dated 28.04.2018 passed by IIIrd Additional Sessions Judge, Surajpur, in Sessions Case No.49 of 2014 whereby the appellant has been convicted for the offence under Sections 304-Part-I read with Section 149 and 148 IPC and sentenced for RI for 10 years with fine of Rs.200/-, in default of payment of fine, additional RI for 2 months and RI for 3 years with fine of Rs.200/-, in default of payment of fine amount, additional RI for 2 months respectively. 5. Brief facts of the case are that in all these appeals are that, there was a previous dispute between the appellants and the complainant Lalsai with respect to the access way to his house. On 09.02.2014 at about 9 PM the appellants made unlawful assembly armed with Lathi, Danda and Knife, and in furtherance thereof, assaulted the deceased Ashok Agariya who was brother in law of complainant Lalsai. It is alleged that the appellant Hridesh Agariya have assaulted the deceased Ashok Agariya by knife. Unnumbered Merg Ex.P/1 was given by the complainant to the police stating about the incident. The numbered Merg intimation was also recorded at Police Station Jhilmili, outpost Chendra, District Surajpur. Unnumbered FIR Ex.P/2 was recorded on 09.02.2014 against the accused Ramfal Agariya, Nanjku, Ramsundar, Hridesh, Bhondu, Narbhar, wife of Ramfal, wife of Ramsundar and wife of Hridesh for the offence under Sections 147, 148, 149 and 302 IPC. Inquest of the dead body of the deceased Ex.P/25 was prepared by 4 the police in presence of the witnesses and dead body was sent for postmortem to Govt. Hospital, Jhilmili. Dr. B.C. Paikra, PW-7, conducted postmortem of the dead body of the deceased and gave his report Ex.P/23. While conducting postmortem, the doctor found one incised wound on left Hypochondriacle 1.6 inchx1cmx3inch (omentum pulled out from the incised wound and bleeding from incised wound was present). The injury was antemortem in nature and can be caused by sharped edged cutting object. Spleen was also damaged by incised wound and doctor opined that the cause of death is syncope, mode of death is excessive internal bleeding and nature of death of homicidal. The numbered FIR Ex.P/22 was recorded on 10.02.2014 against the accused persons. Spot map Ex.P/3 was prepared by the police whereas Ex.P/4 by the Patwari. The clothes of deceased was seized vide seizure memo Ex.P/21. The accused persons namely Lala, Bhondu, Ramsunder, Hridesh, Nanku, Ramfal, Tijo Bai, Supali and Sunita Bai have been arrested on 11.02.2014. The memorandum statement Ex.P/20 of accused Hridesh @Kilo @ Gopi was recorded and based on his memorandum statement, one knife was seized from him vide seizure memo Ex.P/5. Wooden clubs were seized from appellants Lala, Bhondu @ Rajkumar, Ramsunder, Ramfal and Nanku Ram vide seizure memos Ex.P/6, Ex.P/7, Ex.P/8, Ex.P/9 and Ex.P/10 respectively. The Knife seized from appellant Hridesh was sent for its query report to the doctor who conducted the postmortem, who gave its query report Ex.P/24 that injuries found on the body of the deceased could have been caused by the said knife and death may be possible by the injury inflicted by the said knife. The co-accused 5 Jaisingh and Rambai Agariya were arrested on 19.04.2014. The knife seized from the appellant Hridesh and clothes of deceased were sent for FSL examination to regional FSL Ambikapur from where initially report dated 21.05.2014 has been received according to which blood was found on the sent articles. However, another report dated 28.08.2015 was received from the regional FSL Ambikapur Ex.P/37, according to which, human blood was found on the shirt, piece of sari and jacket of deceased whereas, the blood found on the knife and pant of deceased was disintegrated. 6. The statement of witnesses under Section 161 CrPC have been recorded and after completion of usual investigation charge sheet was filed against 11 accused persons for the offence under Sections 147, 148, 149 and 302 IPC before the Judicial Magistrate First Class, Surajpur. 7. On 29.05.2014 an application under Section 7 read with Section 20 of Juvenile Justice (Care & Protection of Childrens) Act, 2000 was filed by the accused Jaisingh and he claimed juvenility on the date of incident. After hearing the parties and calling upon enquiry report from police Station Bhaiyathan, the trial court has passed its order on 20.06.2014 holding the accused Jaisingh Juvenile in conflict with law on the date of incident and directed the concerned police to file supplementary charge sheet against juvenile in conflict with law before the Juvenile Justice Board, Ambikapur. During trial of the case, vide order dated 30.01.2017 and 16.03.2017 the appellant Lala @ Larbhar and Smt. Sunita respectively were declared absconding and 6 thereafter the trial court proceeded for trial of remaining eight accused persons. 8. The trial court framed charge against all the accused persons for the offence under Sections 148, 302 read with Section 149 of IPC. The accused persons denied the charge and claimed trial. 9. In order to prove charge against the accused persons, the prosecution has examined as many as 16 witnesses. The statement under Section 313 CrPC of the accused persons have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 10. After appreciation of oral as well as documentary evidence led by the prosecution, the trial court has convicted and sentenced initially eight accused persons namely Ramfal, Nanku, Ramsunder, Hridesh, Bhondu, Tijo Bai, Smt. Supali and Rambai as mentioned in the earlier paragraph of this judgment. 11. After passing of the judgment against eight accused persons on 23.03.2017, the absconding accused Sunita was arrested on 28.04.2017. Her trial was concluded and she was convicted and sentenced vide judgment dated 17.05.2017. Further, the appellant Lala @ Larbhar also arrested on 15.02.2018 and after conclusion of his trial on 28.04.2018 he too have been convicted vide judgment dated 28.04.2018 and sentenced as mentioned in the earlier part of the judgment. Hence all these appeals. 12. Learned counsel for the appellant Nanku, Ramsunder and Smt. Supali Bai would submit that the prosecution has failed to prove its case 7 beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses and their evidence are not sufficient to hold conviction of the appellants. There is no involvement of these appellants in the offence in question and no allegation that they actively participated in the offence in question. Being the resident of same vicinity, they were only present on the spot when the incident occurred, yet they have been convicted in the alleged offence with the aid of Section 149 of IPC which is erroneous. There is no cogent and clinching evidence that they being member of unlawful assembly acted in furtherance thereof by which the deceased received injury on his body. There is lack of sufficient evidence to hold them guilty for the alleged offence and they are entitled for acquittal. 13. Learned counsel appearing for the appellant Ramfal, Hirday, Bhondu and Tijo Bai have also submitted that there is no eyewitness to the incident. There is not motive also to cause such injury to the deceased. The evidence of prosecution witnesses are inconsistent with each other and such evidence cannot be relied upon for their conviction. During quarrel with the complainant Lalsai, the deceased intervened and in that scuffling he fell down on the ground where a pointed iron rod was lying by which he received injuries and it is not that the appellant Hirday had inflicted injury by knife. Even if it is found proved that the appellant Hirday had given knife blow on the deceased, the other accused persons were not in knowledge that he was having knife with him and he may have assaulted the deceased. There was no common object to cause culpable homicide of the deceased and these appellants are also entitled for acquittal. 14. Learned counsel appearing for the appellant Smt. Sunita have also 8 submitted that there is no overt act by her in the alleged commission of offence. There is no allegation of common assault or active participation of present appellant in the offence in question that in furtherance of common object she has also actively participated with the other accused persons. All the witnesses are relative of the deceased and interested witness. There are several discrepancies in the evidence of prosecution witnesses. Merely presence on spot does not make her liable to convict in the offence in question and therefore she too is entitled for acquittal. 15. Learned counsel appearing for the appellant Lala @ Larbhar, in addition to the argument raised by the other appellants, have submitted that the evidence of complainant as well as other witnesses are contradictory with each other. The appellant Lala has not given fatal blow to the deceased. Even, there is no allegation that he has assaulted the deceased or assisted the other accused persons in any manner in assaulting the deceased. There is lack of cogent and clinching evidence against appellant Lala. There is no premeditation or unlawful assembly and it is only Hirday who gave knife blow on the deceased. There was previous quarrel between the complainant Lalsai and the accused persons with respect to the access way to his house and for that reason, the appellants have been falsely implicated in the offence. The incident is occurred at the house of complainant himself and he is responsible for the injuries caused to the deceased and to shift his burden upon the accused persons, he made a false complaint 9 against them. Therefore, the appellant Lala @ Larbhar is also entitled for acquittal. 16. On the other hand, the counsel for the State opposes the submissions made by the counsel for the respective appellants and have submitted that but for minor omissions or contradictions the evidence of prosecution witnesses are fully reliable. The incident is witnessed by eyewitnesses who have duly supported the prosecution case and stated about involvement of the accused persons. All the accused persons came together to the house of complainant. They were having previous enmity with the complainant and as and when the deceased came out from the house of complainant, the appellants attacked him who were armed with deadly weapon like knife. Although there was no enmity between the appellants and deceased, but there was a dispute between the appellants and the complainant Lalsai and they targeted the complainant Lalsai but unfortunately the deceased first came out from his house who was attacked by the accused persons. There are overwhelming evidence against the appellants to convict them in the offence in question and the trial court has rightly appreciated the evidence available on record and convicted them for the alleged offence. Their appeals are devoid of merit and are liable to be dismissed. 17. I have heard the counsel appearing for the parties and perused the records of the case. 18. The homicidal death of deceased have not been specifically challenged by the appellants. The homicidal death of the deceased has been proved by PW-7, Dr. P.C. Paikra, who conducted the 10 postmortem of the dead body of deceased. He stated in his evidence that on 10.02.2014 the dead body of deceased was brought before him for its postmortem. During postmortem, he noticed once incised wound below the chest having size of 1.6inch x1cmx3inch and due to said injury his omentum were come out. On internal examination, spleen and left 12th Rib were also found cut. He opined that cause of death is syncope due to excessive internal bleeding which is homicidal in nature. In cross examination, he admitted that only one injury was found on the body of the deceased. He admits that if the deceased would have received immediate treatment, he could have saved. He also states that injury found on the body of deceased could have been caused by the said weapon which he has examined i.e. knife. The homicidal death of deceased and his death due to injury found on his body has not been specifically challenged in his cross examination by the defence. 19. The homicidal death due to injuries has further been supported by the evidence of PW-1 Lalsai who saw the incised wound on the body of the deceased. 20. PW-2, Sarita, PW-3 Meera Bai, PW-4, Jeetan and PW-15 Bhukhal Ram all have supported that they saw injury on the abdomen of deceased and it is proved that deceased died due to injury found on his body and thus, the findings recorded by the trial court that death of deceased was homicidal in nature is based on proper appreciation of evidence and it was neither perverse nor contrary to the record. 11 21. So far as the involvement of appellants in crime in question is concerned, I again examine the evidence of witnesses. 22. The allegation against the appellants are that they formed unlawful assembly and in furtherance thereof they caused injuries to the deceased. Section 149 of IPC is relevant here to reproduce which reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—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.” 23. In the matter of Dani Singh & Others Vs. State of Bihar, 2004 (13) SCC 203, the Hon’ble Supreme Court has considered the aspect as to when and how the common object comes into existence and held that the effect of Section 149 IPC may be different on different members of same assembly. In paragraph 11 to 13 it was observed as under: “11. The emphasis in Section 149 IPC is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in 12 prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to 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, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 12. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. 13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act 13 which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore (AIR 1956 SC 731.)” 24. PW-1, Lalsai, the complainant, have stated in his evidence that on the date of incident i.e. 09.02.2014 the accused persons came to his house to attack him. Ashok was his guest who after having his dinner came out from his house first to wash his hand and at that time the accused Hridesh gave a knife blow on the abdomen of Ashok. He raised alarm and after hearing his noise, his neighbor Jeetan, Bhukhal, Meera Bai, Bhajju and wife of Bhajju came there however till that time the accused persons fled away. He immediately informed to police station and when the police persons along with the ambulance came there, the deceased already died. He lodged merg intimation and FIR Ex.P/1&P/2 respectively to the police. He further states that there was a dispute in between him and the accused persons with respect to the passage way adjoining to his house. On the date of incident they could 14 not assault him, but they regularly threatened to commit marpeet with him. In cross examination he states that at the time of incident his wife and children also reached there. Just beside his house, the house of Ramfal is there in which he residing. He admits that Nanku, Bhondu and Lala are the resident of village Unrokha. Just infront of his house, the house of Sambhu and Ratan are situated. He admits that he is not having any dispute with Nanku, Bhondu and Lala. He denied that he is not having any dispute with Supali and Sunita. His previous dispute was disclosed in his police statement and if it is not there, he could not tell the reason. He admits that Nanku, Bhondu, Lala, Supali and Sunita are the members of same family. He further admits that Nanku, Bhondu, Lala, Supali and Sunita have not assaulted him or Ashok. He voluntarily stated that they only assisted. In further cross examination he admits that there was no dispute between the accused persons and Ashok and accused persons were not known the deceased Ashok previously. At the time of incident, there was hurling abuses between his family and family of Ramfal. At that time, Ashok was standing at his door. He denied the suggestion that during hurling abuses, Ashok tried to intervene and fell down on the ground by which he received injuries. From the evidence of this witness, it is quite vivid that as and when the deceased Ashok came out from the house of complainant, he was given knife blow by accused Hridesh. There is no allegation against other accused persons that they also assaulted the deceased or assisted in any manner to give blow on the body of the deceased. 25. PW-2, Sarita, is the wife of complainant Lalsai, who have stated in her 15 evidence that on the date of incident at about 9 PM when her brother came out from house to wash his hands after taking dinner, the appellant Hridesh assaulted him by knife. Prior to the incident, the accused persons were exhorting that if anyone will come out from the house, they will kill him. The accused persons were armed with Lathi, Danda and Axe. She witnessed the assault made by the appellant Hridesh to her brother. After receiving injury, her brother fell down and the accused persons fled away. When the Ambulance came there, they disclosed that Ashok has died. They were having previous dispute with the accused persons. In her cross examination she states that she disclosed in her police statement that accused persons were standing outside of her house and exhorting that if anyone comes out from her house, they will kill him and if it is not there she could not tell the reason. She also states that she has not given the statement that when she heard hue and cry of her brother she came out from the house and till that time the accused Hridesh had already inflicted the knife injury on her brother and fled away. She further admits that at the time of incident there was no electricity in the vicinity. Since it was pitch dark in the night, she did not see faces of accused. Only mob were visible. From the evidence of this witness also there is not overt act of other accused persons, except the appellant Hridesh. Further, it was a pitch dark in the night and there was no electricity and only mob was seen by the witness. It is not alleged that when the deceased came out from the house of complainant, firstly he was beaten by all the 16 accused persons and then he was being inflicted knife injury by the appellant Hridesh. 26. PW-3, Smt. Meera Bai, sister in law of the complainant Lalsai, have stated in her evidence that on the date of incident the accused persons were roaming around their house. They locked their house and went to the house of Jeetan in the night. At about 5 PM in the evening, the accused persons dug a pit in front of her house and when her husband came there, the accused persons tried to assault him and somehow he could enter inside the house and closed the door. In the night, when the brother of her sister in law came out to wash his hand after having dinner, the accused persons caught him hold and then Hridesh gave a knife blow on his abdomen and thereafter they fled away. She saw the incident and they called 108 vehicle, but before coming to 108 vehicle, the deceased died. In cross examination, she states that whatever she disclosed in her chief examination has been disclosed in her police statement Ex.D/3 & D/4, but if it is not there, she could not tell the reason. She admits that there was a dispute with respect to passage way and the said passage way belongs to Ramfal. She admits that police has recorded her first statement after 5-6 days of the incident and second statement was recorded after 10-15 days of incident. At the time of incident she was inside the house and serving food to family members. 27. PW-4, Jeetan, is the maternal Uncle of the deceased Ashok. He stated in his evidence that on the date of incident there was a dispute between Ramfal and Lalsai with respect to passage way. At about 9 17 PM all the accused persons came to the house of Lalsai and Hridesh exhorted that if anyone comes out from the house of complainant, he will murder him. At that time, Ashok came out from the house of Lalsai who was being surrounded by the accused persons and Hridesh gave knife blow on his abdomen and thereafter all the accused persons fled away. Deceased Ashok died on the spot. In cross examination he states that at the time of incident it was pitch dark night, but he saw the incident from his house. At the time of recording his police statement Ex.D/5, the incident of day time and exhorting by the appellants to the complaint party were disclosed in his police statement, but if it is not there, he could not tell the reason. In further cross examination, he stated that deceased is his nephew and there was a property dispute between him and the accused persons. Litigation was also ensued between them. He did not know names of female accused persons and in his police statement he did not disclose their names. He also states that when Ashok came out from the house of complainant, the accused persons got him surrounded. 28. PW-15, Bhukalram, have stated in his evidence that he saw dead body of Ashok in the house of Lalsai and thereafter police came there and Panchnama was prepared. He admitted his signatures in the memorandum statement Ex.P/20 and seizures Ex.P/5 to P/10. When this witness was declared hostile and cross examined by the prosecution, he admits that police persons caught the appellant Hridesh and he was present there. Thereafter he proved the memorandum statement of Hridesh. In cross examination he has stated that at the time of incident he was taking his dinner and when 18 he came out from the house, he saw that Ashok already fell down on the ground. 29. From all these evidences, the story comes out is that there was previous dispute between the appellants and complainant Lalsai. On the date of incident, when Ashok came out from the house of Lalsai, he was being assaulted by the accused Hridesh by knife by which Ashok received incised wound on his abdomen and died on the spot. Although, the witnesses have stated that the accused persons were exhorted, but who were the accused persons who made unlawful assembly or exhorted is not clear from evidence of any of the witnesses and an omnibus allegations have been levelled by the complainant as well as witnesses that accused persons were exhorting. There is no active participation of other accused persons except accused Hridesh. It also comes in the evidence that it was a pitch dark night and faces of the persons were not visible. Only mob were seen. Since dispute between the accused persons were going on with respect to passage way adjoining to the house of complainant and in the day time some quarrel took place between them, it was possible that the complainant party have made allegations against all the accused persons who were related with each other. 30. In absence of any specific role played by them or their presence on the spot, they cannot be considered to be the member of unlawful assembly and acted in furtherance of their common object. PW-1, the complainant himself have stated that as and when the deceased came out from his house, the accused Hridesh gave knife blow on his abdomen. He has not stated anything about other accused persons 19 that they were exhorted or they assisted the accused Hridesh in giving knife blow upon the deceased. Even he has not named any other accused persons in his deposition that they were present on the spot at the time of incident except Hridesh. There are discrepancies in the evidence of PW-1, Lalsai, PW-2, Sarita, PW-3, Meera Bai and PW-4 Jeetan with respect to presence of other accused persons on the spot or member of any unlawful assembly. Though they have stated that the accused persons were exhorting at the time of incident but who were they is not clear in their evidence. In absence of any evidence with respect to their involvement or participation in the alleged offence or even in absence of any evidence that they were the member of unlawful assembly, the other accused persons cannot be convicted to commit culpable homicide not amounting to murder or rioting armed with deadly weapon. When their presence on the spot itself is doubtful, they cannot be convicted for any offence. 31. For the forgoing reasons, this court is unable to uphold conviction of the appellants except the appellant Hridesh who caused injury to the deceased Ashok. Therefore, the conviction and sentence awarded to the appellants Sunita (CRA No.1374 of 2017), Nanku, Ramsunder and Smt. Supali (in CRA No.324 of 2018), Ramfal, Bhondu and Tijo Bai (in CRA No.1999 of 2019) and appellant Lala @ Larbhar (in CRA No.880 of 2018) are set aside. However, the conviction of appellant No.2 Hirday (in CRA No.1999 of 2019) (As per judgment dated 23.03.2017 his name is mentioned as accused No.4-Hridesh S/o Ramfal) is hereby maintained. 32. It is reported that appellant Hridesh S/o Ramfal has completed his 20 entire sentence and released from jail on 02.04.2022. Therefore, he is not required to surrender before the trial court. The appellant Lala @ Larbhar is reported to be in jail since 24.04.2018. He be released forthwith, if not required in any other case. The other accused persons namely Ramfal, Bhondu and Tijo Bai are also released from jail after completion of entire jail sentence and other accused persons were reported to be on bail. Their bail bond shall continue for a further period of six months as provided under Section 481 of BNSS, 2023. 33. With the aforesaid conclusion, the appeal filed by the appellants (except Hridesh in CRA No. 1999 of 2019) are allowed and appeal filed by the appellant Hridesh is dismissed. 34. The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. inder Sd/- (Ravindra Kumar Agrawal) Judge