1 Judgment reserved on 23.04.2025 Judgment delivered on 22.07.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1940 of 2019 1. Manoj S/o Mangaldas Chaturvedi, aged about 29 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 2. Mangaldas S/o Late Ghasiya Chaturvedi, aged about 35 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 3. Smt. Kushi Bai W/o Mangaldas Chaturvedi, aged about 50 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 4. Kumari Dashoda D/o Mangaldas Chaturvedi, aged about 20 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 5. Pitamber S/o Mangladas Chaturvedi, aged about 26 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 6. Hemin Bai W/o Pitamber Chaturvedi, aged about 24 years R/o Village Mudiyadih, P. S. Palari, Balodabazar, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh ... Appellants versus 2 State Of Chhattisgarh Through P. S. Palari, District Balodabazar-Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh ... Respondent For Appellants : Shri Rahil Arun Kochar and Shri Leekesh Kumar Advocates For Respondent : Shri Ajay Pandey, GA DB : Hon’ble (Smt.) Justice Rajani Dubey & Hon’ble Shri Justice Sachin Singh Rajput C A V Judgment Per Sachin Singh Rajput, J. Accused/appellants herein happen to be the husband and in-laws of deceased Bangla Bai who suffered burn injuries on 26.10.2017 at about 5 AM in her matrimonial home and succumbed to the same on 27.10.2017 at 8:00 AM in the hospital. Marriage of the deceased with accused/appellant Manoj is said to have been solemnized in the year 2009-2010. 2. Facts relevant for disposal of this appeal: Complainant namely Dhanesh (PW-1) in a written complaint dated 07.11.2017 (Ex. P-1) addressed to Superintendent of Police, Baloda Bazar with a copy given to Station House Officer, Palari has stated that after marriage his elder sister (deceased) lived in a joint family and for that there used to be disputes amongst them. Whenever the deceased visited her maternal home, she told about the tortuous attitude of the matrimonial family members towards her. Partition related dispute was also allegedly going on in the family of the accused persons where husband of the deceased along with his parents had subjected her to beating. Just before Diwali festival also such property related dispute had taken place and for that the deceased along with her husband lived elsewhere for some time, but after family discussion they again started 3 living in the joint family. On 26.10.2017 accused/appellant Manoj is stated to have told this witness on phone about the deceased having suffered burns and being taken to the hospital. He along with his elder brother went to Community Health Centre, Palari and about 15-20 minutes thereafter accused/appellant Manoj brought Bangla Bai in burnt condition. However, on account of her serious condition, she was referred to Medical College Hospital, Raipur. On being asked by his relative Madhu Giri (PW-8), the deceased had disclosed to her that when she asked for kerosene to cook food, her in-laws picked up dispute and in pursuance of that her brother-in- law poured kerosene on her whereas her sister-in-law (Devrani) set her afire by igniting the match stick in front of her father-in-law and mother-in-law. The complaint further says that on hearing shrieks, her husband Manoj came out but instead of saving her he got back saying “do die”, and thus she was held up and burnt by her brother-in-law, sister-in-law, father-in-law and mother-in- law (Devar, Devrani, Saas and Sasur respectively). It says that after seeing his sister in burnt condition, this witness went to her matrimonial home but the sister-in-law (Devrani) of his sister did not let him get in. Then on hearing his voice, his nephew and niece (son and daughter of deceased) came out weeping whom he took with him. Complaint further mentions that on the way his elder nephew then aged about seven and a half told him that in the morning his uncle, aunt, grandmother and grandfather picked up quarrel with his mother and set her on fire putting him under threat of the same consequences if he told anyone of the incident. Merg intimation (Ex. P-17) was registered on 27.10.2017 at 11:30 AM, FIR (Ex. P-24) was registered on 17.11.2017 at 7:50 PM for the offence under Section 302 and 147 IPC. Postmortem examination on the body of the deceased was conducted on 27.10.2017 vide report (Ex.P-24 - appears to be 4 repeated) and thus after completing the investigation charge sheet was filed for the offence punishable under the same sections as in the FIR). Charges were framed against the accused persons under sections 147 and 302/149 IPC which they denied and claimed trial. 3. 21 witnesses have been examined by the prosecution followed by statements of the accused persons recorded under Section 313 CrPC where they have pleaded their innocence and false implication in the case. Two defence witnesses namely Manoj Chaturvedi (DW-1) and Dr. Chhavi Jangde (DW-2) have also been examined in this case. 4. Having concluded the trial (ST No. 15/2018), the III Additional Sessions Judge Balodabazar acquitted the accused/appellants under Section 147 IPC but convicted them under Section 302/149 IPC and sentenced each of them to undergo life imprisonment with fine of Rs. 500/-, plus default stipulation, vide judgment impugned dated 07.12.2019. 5. Learned counsel for the appellants makes the following submissions:- (i) that the judgment impugned is not based on proper appreciation of the evidence of the witnesses; (ii) that the only witness who is said to have witnessed the incident is a seven year old child but his deposition appears to have been made after being tutored and therefore cannot be placed implicit reliance upon; (iii) that other witnesses namely Dhanesh Giri (PW-1), Dhan Singh Giri (PW-4), Devmati (PW-5) and Madhu Giri (PW-8) being the interested witnesses cannot also not be relied upon to convict the accused/appellants; (iv) that the prosecution has failed to establish the motive which prompted the appellants to eliminate the deceased; 5 (v) that even the medical evidence is not decisive; and (vi) that there is delay of about 15 days in recording the statement of the eyewitness Khuman (PW-9) which was taken down on 12.11.2017 whereas the incident took place on 26.10.2017 and no plausible explanation has been offered by the prosecution, and so also there is unexplained delay of 23 days in recording the police statements of PW-1, PW-4, PW-5 and PW-8; (vii) that there is delay of about 20 days in lodging the FIR which also creates doubt in the case of the prosecution; and (viii) that the seized articles were not sent for forensic examination. (ix) Reliance is placed on the decisions of the Supreme Court in the matter of Digamber Vaishnav and another v. State of Chhattisgarh reported in (2019) 4 SCC 522, in the matter of Uttam v. State of Maharashtra reported in (2022) 8 SCC 576. Thus according to the counsel for the appellants the findings so recorded being perverse and illegal are liable to be set aside. 6. On the other hand, the State counsel supports the judgment impugned to be just and proper and based on due appreciation of the evidence on record. That apart, he submits that the child witness (PW-9) who had seen the incident with his own eyes cannot be disbelieved. He thus submits that the judgment impugned being a well reasoned one does not call for any interference in this appeal. 6 7. Heard counsel for the parties and perused the evidence on record including the judgment impugned. 8. Dhanesh Giri (PW-1) is the brother of the deceased, and according to him, the marriage of his sister with accused/appellant Manoj had taken place about 9-10 year prior thereto and since then she was being harassed by all the accused/appellants. Deceased is stated to have accompanied her husband for earning livelihood, and that her in-laws had an eye on her earning. They also allegedly asked her to get money from her parents’ house. After a partition related dispute on Diwali festival, the deceased and accused Manoj started living elsewhere but at the insistence of other accused persons they again came to the joint family. On 26.10.2017, this witness is stated to have received a phone call regarding the deceased having suffered burns and asking him to reach hospital at Palari. 15-20 minutes after he reached the hospital along with his elder brother, mother and uncle, accused/appellant Manoj brought his sister with burns. Thereafter, he went to have water for his sister. On being asked by his elder brother and mother, his sister told them that after latching the door, accused/appellant Pitamber sprinkled kerosene on her body and then put her ablaze by igniting match stick given to him by his wife Hemin Bai. While she was burning, her in-laws who were standing there are stated to have extinguished the fire but accused/appellant Manoj who was also there went into the room. This witness has stated that his sister also told Madhu Giri (PW-8) to have been set ablaze by all the accused/appellants after sprinkling kerosene on her body. He has further stated on the next day when he was taking the children of his sister to his village, on the way they told him that accused/appellants had put the deceased on fire after sprinkling kerosene on her body. In cross-examination however this witness has stated that deceased had not told him anything at 7 CHC Palari as he at that time had gone to take water. He however has stated that she had told his mother and brother about the incident. Likewise, in the hospital at Raipur also she had not told him anything but had disclosed to others. He has admitted the police did not ask anything to his sister in his presence and that whatever he mentioned in the written complaint (Ex.P-1) was based on the information given to him by his mother and elder brother. He has admitted that whatever he had heard was mentioned in the written complaint. He has stated that the second page of the written complaint (Ex.P- 1) mentions the date as 02.11.2017 but the first page mentions it as 07.11.2017. On being asked as to when he had made the written complaint, he has stated that first he had gone to police station Palari on 02.11.2017 but as the Station House Officer was not present he was called on some other day and therefore he had again gone there on 07.11.2017 with the written complaint. He has stated that though the written complaint appears to have been addressed to Superintendent of Police, Baloda Bazar, it was given in the Police Station Palari. He has again admitted that he had stayed in the hospital at Raipur for one and a half hour but in his presence the deceased had not told anyone about the incident. He has now stated that on 26.10.2017 he had not gone to Raipur from Palari with his sister. This witness has admitted that on 27.10.2017 he had not gone to village Mudiyadih to take his nephew and niece. Now he says that perhaps on 26.10.2017 itself he had gone there. He has admitted since 26.10.2017 his nephew and niece had been in his house till 03.07.2018 – the date on which his Court statement was recorded. He has stated that statement of his nephew (PW-9) was recorded in the presence of several people including himself, and not in isolation. He has admitted that he did not make any report in the police station in respect of the quarrel of the accused/appellants with his sister. He has denied that 8 being upset with uterus related problem his sister committed suicide by setting herself ablaze in the absence of the accused/appellants, rather he has stated that at the time of incident all the accused/appellants were present in the house in question. This witness has reiterated that he had not seen the incident and that he gave his statement in the Court as was told to him. He has further admitted that Dhan Singh (PW-4), Devmati (PW-5), Anand Giri (PW-6), Madhu Giri (PW-8) and Kaushilya (PW-7) happen to be the members of his family. 9. Sukul Yadav (PW-2) - the witness to seizure of a kerosene container made under Ex. P-2 has admitted his signature thereon, as also on arrest memo (Ex. P-3). He however has been declared hostile. Bhuvan Bandhe (PW-3), Anand Giri (PW-6), Kaushilya Kurre (PW-7), Shivlochan Yadav (PW- 12, Ram Charan (PW-13) and Panchram Ratre (PW-16) have also not supported the case of the prosecution and have been declared hostile. Likewise, Narendra Kurre (PW-14) and Uttam Sahu (PW-15) being the formal witnesses have not stated anything specific. 10. Dhan Singh Giri (PW-4) – one of the brothers of the deceased has stated that accused/appellant Manoj had telephonically informed him about the deceased having suffered burns while cooking food, and also about her being taken to hospital at Palari by ambulance. He has further stated that in Palari Hospital when he and his mother asked the deceased as to how she suffered burns, she had told that it was her brother-in-law (Devar) Pitamber who had set her ablaze after pouring kerosene on her body, and at that time all the family members were present there. He has stated that while being taken to Raipur by ambulance he had tried to talk to the deceased but she was not in a position to speak and was just asking for water. He has stated 9 that leaving his mother in the hospital, he had returned home and on the next day he came to know through Madhu Giri (PW-8) about his sister having expired. He has also stated that just after marriage, the accused/appellants did not like his sister and used to harass her by picking up quarrels. This, she used to inform whenever she visited her parents’ house. He has stated that his brother Dhanesh had not gone to hospital at Raipur. This witness has denied that in the hospital at Raipur the deceased was not able to speak. He now states that she was able to speak a little but not much. He has admitted that in Raipur hospital the deceased had not told anything to anyone in his presence. He has further admitted that no report about the quarrel among the accused/appellants and his sister was ever lodged in the police station. He has further stated that when the deceased had disclosed to them in the hospital about the involvement of accused/appellant Pitamber in setting her on fire, no one else was there. Devmati (PW-5) – mother of the deceased has stated that in Raipur Hospital when she asked the deceased as to how she suffered burns, she had told that it was her brother-in-law (Devar) Pitamber who had set her ablaze after pouring kerosene on her body, and at that time all the family members were present there. Madhu Giri (PW-8) has also made almost the same statement like PW-5, but as regards accused/appellant Manoj she has stated that the deceased had told her that he was not present at the time of incident. 11. Khuman (PW-9) is a 09 year old witness who is stated to have seen the incident. Learned trial Court after putting preliminary questions to ascertain his capability to give evidence, proceeded to record the same. In examination-in-chief he has stated that after his mother (deceased) returned from the field, accused/appellant Pitamber poured kerosene and set her on fire in the presence of other accused persons. This, he is stated to have seen 10 sitting in the courtyard. She is stated to have been taken to hospital but did not get well. To a question ‘it was cold on the day of incident’ this witness answered saying ‘yes’. Whether on the day of incident he was not at home and had been out of the house to play with his friends, he answered in negative saying that he was at home and had not gone outside. Whether there was a Peepal tree near his and the house of Sukul Yadav, he answered saying ‘yes’. Whether he had come into the house after hearing about the incident of fire, he answered saying that ‘no’ ‘he was already in the house’. Whether he was told by his maternal uncle Dhanesh as to what was to be told to the Court, he answered in the negative. As to the distance between the place where he was sitting and the one where his mother was present, he answered it to be about 15 ft. As to the question who all had seen the incident, he has answered saying that all at home. 12. Dr. Ulhas Gonnade (PW-21) is the witness who conducted postmortem examination on the body of the deceased and gave his report (Ex.P-24) has stated that except palm, foot and lower part of the back, remaining portion of her body was burnt. Cause of death, according to this witness, was cardio respiratory failure as a result of burns and their complications. Death was within 24 hours from examination time. Ram Gopal Soni (PW-19) is the investigating officer who has supported the case of the prosecution. During investigation, he seized a matchstick and container from which smell of kerosene was emanating under Ex. P-2. 13. Accused Manoj who has examined himself as DW-1 has stated about the stomach ailment of his wife and the treatment being provided to her in the year 2016. As regards the allegation against him of setting his wife on fire, it 11 has been denied. Dr. Chhavi Jangde (DW-2) has also stated about the stomach ailment of the deceased the treatment given by her. 14. Having thus discussed the evidence on record, this Court finds that except one child witness (PW-9), rest of the witnesses are the hearsay ones that too the parents and relatives of the deceased. Further, the incident where Bangla Bai allegedly was put on fire by the accused/appellant Pitamber in connivance with other accused/appellants had taken place on 26.10.2017 at about 5:00 AM but for the first time the written complaint (Ex.P-1) was given by Dhanesh (PW-1) – the brother of the deceased on 07.11.2017 stating that after marriage of his elder sister (deceased) with accused/appellant Manoj which had taken place 9-10 years prior thereto, she lived in a joint family and that there used to be disputes in the family. Tortuous attitude of the matrimonial family members towards her has also been alleged in the said written complaint. In the wake of the said dispute, accused/appellant Manoj even lived elsewhere with the deceased but on the insistence of his family members, he again started living in the joint family. The allegations made in the written complaint also find place in the Court statement of this witness. Undisputedly, this witness has not seen the incident but has made the allegation as if everything happened in his presence. The version of this witness is rather based on the information conveyed to him by an eight year old son of the deceased who while accompanying him to his village had told him on the way that his uncle, aunt, grandmother and grandfather picked up quarrel with the deceased and set her on fire, putting him under threat of the same consequences if he told anyone of the incident. Apart from Dhanesh (PW-1), the other witnesses PW-4, PW-5 and PW-8 who happen to be the mother, brother and relative of the deceased have also stated that whenever deceased visited her parents’ house she used to tell that she was harassed at 12 her matrimonial home. They are also the witnesses whom the deceased had told in the hospital at Raipur that it was her brother-in-law (Devar) Pitamber who had set her ablaze after pouring kerosene on her body, and at that time all the family members were present there. However, PW-4 himself has stated in his evidence that while being taken to Raipur by ambulance he had tried to talk to the deceased but she was not in a position to speak and was just asking for water. He has then denied that in the hospital at Raipur the deceased was not able to speak. Then he states that the deceased was able to speak a little but not much. He then has admitted that in Raipur hospital the deceased had not told anything to anyone in his presence. The factum of deceased not being in a position to speak on 26.10.2017 is further strengthened by the note appended by Dr. Arti Pandey (not examined) of Raipur Hospital to the request letter (Ex.P-10) written by Station House Officer of Moudhapara Police Station to record dying declaration of the deceased, that “Pt. Is not in the condition to give statement”. Though in the medical jurisprudence there is no hard and fast rule about the fact that when the victim of burns can be said to be in a fit condition to give statement, but the commonsense experience shows that normally the victim with 92% burns like in the case in hand is hardly in such a condition. In these circumstances, the statement of PW-4, PW-5 and PW-8 that the deceased disclosed to them about the role played by the accused/appellants in setting her fire becomes doubtful. Furthermore, these three witnesses do seem to be consistent to their own version. From the medical evidence it is quite vivid that the deceased was not in a position to give dying declaration despite the efforts made by prosecution, therefore, it can safely be inferred that she had not told anything to these witnesses and thus their statement in this regard cannot be accepted as a gospel truth. 13 15. Further, almost all the witnesses from the parental family of the deceased have spoken about the subjection of the deceased to harassment at the hands of the accused/appellants immediately after marriage which had taken place about 9-10 years before the incident but there is nothing to show that any step was taken by them to report the matter to the police. On the contrary, these witnesses themselves have stated that no such step was taken during the lifetime of the deceased. This also creates doubt in the statements of the witnesses examined by the prosecution. More importantly, except a plastic container and a matchstick, no seizure of other articles such as clothes of the deceased and her other belongings, has been made by the police which could have proved a little advantageous to the case of the prosecution. Furthermore, none of the witnesses including the doctors has stated about the kerosene smell from the body of the deceased. 16. Here the evidence of Madhu Giri (PW-8) also appears to be apposite to be referred to. This witness has stated that after coming to know through her father about Bangla Bai having suffered burns, she went to Medical College and Hospital, Raipur where Bangla Bai was admitted. According to this witness, on being asked as to how she suffered burns, Bangla Bai told her to have been set afire by accused Pitamber in presence of other family members except accused/appellant Manoj. After this, Bangla Bai is stated to have become unconscious. Thus according to this witness, accused/appellant Manoj was not present on the spot. 17. Now turning to the testimony of the child witness (PW-9) who at the time of incident was aged about seven and a half years. From his testimony, it is evident that he purportedly saw the incident from a distance of about 15 ft. by sitting in a Bajawat where his mother was being burnt alive by the 14 accused persons. To question No. 13 put by the trial Court whether the kitchen of his house was surrounded by wall from all the four directions with one door, he answered the same saying “no – two sides it had wall and it was open from two sides.” To another question i.e. question No. 14 – which side of the kitchen the Bajawat was kept, he answered the same saying that “it was kept in the direction which had no wall.” If the spot map (Ex.P-19) is referred to, the room of the deceased is shown to be surrounded by walls in all the four directions and that too it is not shown in the map as to where the Bajawat was kept. The spot map however does not show anything like kitchen as stated by PW-9. Ramesh Kumar Dhruv (PW-17)- the Patwari who prepared the spot map has stated that on 26.12.2017 he had prepared the spot map (Ex.P-19) and marked the place where the incident had taken place with red ink. In cross examination he has stated that he did not remember that in the place marked with red ink, in which direction the door was there, but it was there in one of the walls. He has specifically denied that the room of the deceased had walls in two sides and in other two sides it was open. He has further stated he did not mark any place in the spot map as kitchen. Thus the statement given by the child witness that the room of the deceased had two walls and it was open from two sides, gets falsified. Further, neither the spot map nor the statement of the Patwari depict whether there was anything like Bajwat in the house in question. Thus in view of the spot map and the statement of the Patwari (PW-17) it is not deducible that the child witness could have seen the incident, and thus his presence on the spot itself becomes doubtful. 18. What emerges from the record is that after the incident, Khuman (PW- 9) had been in the house of PW-1 who happens to be his maternal uncle for about ten months before recording of his evidence, the possibility of his being 15 tutored cannot be ruled out. While dealing with a case as to the reliability of a child witness in the matter of Pradeep v. The State of Haryana reported in (2023) 19 SCC 221 the Supreme Court has held as under:- “8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. 9. Before recording evidence of a minor, it is the duty of a Judicial Officer to as preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.” 19. The gist of the aforesaid judicial pronouncement is that the Court has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. However, the preliminary questions asked in the case in hand appear to have been simply introductory and cannot hold him competent to understand the sanctity of the evidence given before the Court. The trial Court does not appear to have 16 done its duty in making an assessment of his competence to make the statement in the Court. It should have made the preliminary examination keeping in mind the fact that the child witnesses due to their tender age are more susceptible to be easily swayed away with the outside influence. 20. Furthermore, the incident where the victim was allegedly set on fire had taken place on 26.10.2017, she succumbed to the burns on 27.10.2017 but for the first time the written complaint by Dhanesh (PW-1) was made on 07.11.2017 i.e. after a long gap of about 20 days. It has been held by the Supreme Court on numerous occasions that the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. This is what appears to have happened in the case in hand also where the written report lodged after abut 20 days appears to be a well thought of carrying in its fold embellishments implicating all the family members in a fabricated murky plan. 21. Though presence of child witness (PW-9) stands disbelieved yet looking to the material available on record, the trial Court has palpably fallen in error in bringing all the accused persons within the sweep of Section 149 IPC which speaks of forming an unlawful assembly to do something in prosecution of a common object. The trial Court has seriously erred in treating all the family members to be the members of an unlawful assembly 17 with a common object of eliminating the deceased by setting her afire. No finding based on a concrete evidence has been recorded to the effect that the accused/appellants who are the members of the same family, had the common object of doing away with the deceased. Mere presence of one on the spot is not sufficient to be a member of unlawful assembly to achieve a common object of the other unless there is material to establish that the object of all was common. Even the knowledge of that object cannot be attributed merely being present on the spot. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behavior of the members soon before, at or after the actual commission of the crime. However, none of them is present in this case. The people passively present at the place and time of occurrence is not indicative of the fact that they are also interested in the offshoot of the object nurtured by the active participant. There may be numerous reasons holding such passive people back from coming forward to pacify the flare up or move away therefrom, one of them being the fear of un-necessary victimization. 22. The summation thus is that the prosecution has utterly failed to prove its case beyond reasonable doubt, and so also the trial Court has fallen in error in not appreciating the evidence in its proper perspective. Giving benefit of doubt to the accused/appellants, they are acquitted of the charge levelled against them by allowing the appeal. 18 23. Appeal is thus allowed, judgment impugned is set aside and the accused/appellants are acquitted of the charges levelled against them. They are in jail, therefore, let they be set free forthwith, if not required in any other case. 24. Let a copy of this judgment along with the record be sent back to the trial Court for due compliance. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Jyotishi