TaxTMI 
TaxTMI 
2019 (8) TMI 1891
X X X X Extracts X X X X
X X X X Extracts X X X X
....he juvenile court. Seven were summoned Under Section 319. The Trial Court convicted three persons. One of them, Ishwar has been acquitted by the High Court. 2. Sri S.R. Singh, learned senior counsel, on behalf of the Appellants submits that once the other Accused have been acquitted, the two Appellants alone cannot be convicted with the aid of Section 149 of the Indian Penal Code. The High Court erred in convicting with the aid of Section 34 in absence of a charge framed under that Section. There is no evidence of any common intention, displaying a prior meeting of minds to commit the assault. PW-1 and PW-8 were not eye witnesses. They reached after the occurrence. Their claim to be eye witnesses is highly improbable from their own evidenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad been released on bail and was returning from the house of PW-1 on 16.06.1995 at about 9.00 P.M. when the assault is stated to have taken place. 5. PW-8 and PW-1 are husband and wife holding arms licence in their individual names. They are stated to have been accompanied to the place of occurrence by Kamla the sister of PW-8 and one Pali Ram who was also an arms licensee. Surprisingly, the latter two have been given up by the prosecution and have not been examined. All four are stated to have moved away from the place of assault out of fear, as claimed. If three of them were possessed of weapons there has to be an explanation why they did not act in self defence when the assault is alleged by lathis, gandasi and guns. It is also difficul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....event, the number of injuries on the deceased leaves us satisfied that it was the result of a mob assault and not an assault by the two Appellants alone. 7. The High Court has committed an error of record by considering PW-8 to be an eye witness without any discussion when his presence at the time of occurrence has been disbelieved by the Trial Court. With regard to PW-1, the Trial Court has itself observed that her deposition "does not contain the entire truth and it makes the court to sit up and to find out the kernel out of the chaff". This observation assumes significance in view of the acquittal of the remaining Accused by the Trial Court itself, excluding the juveniles. 8. The question that arises to our mind is that in the mob assa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mplication therefore cannot be ruled out completely in the facts of the case. 9. The High Court concluded that the Appellants alone were the assailants of the deceased. Ishwar is also stated to have assaulted with a lathi capable of causing lacerated wounds. We find it difficult to hold that the Appellants were any differently situated than Ishwar. The susceptibility of eleven injuries, including incised wounds, by two Accused is considered highly improbable. 10. Therefore, in the entirety of the facts and circumstances of the case, the relationship between PW-1 and the deceased, the existence of previous animosity, we do not consider it safe and cannot Rule out false implication to uphold the conviction of the Appellants on the evidence ....