Failure to Prove Shared Common Object for Murder Limits Liability of Unlawful Assembly Members to Rioting and Hurt.

The deceased, Umesh Pandey, worked as a guard at Aganur High School.

He had previously reported the illegal activities of one Pankaj Kumar to the police.

On 24.06.2015, an unlawful assembly including the appellants allegedly dragged the deceased out of the school gate, physically assaulted him, and eventually shot him.

Two sons of the deceased (PW-5 and PW-6) claimed to be eyewitnesses.

The deceased died en route to the hospital, allegedly making an oral dying declaration to his sons.

The Trial Court convicted Rajesh Yadav, Fiddu Yadav, Ram Brat Yadav, and Jalendra Yadav under Sections 302/149 of the IPC and Section 27 of the Arms Act.

The appellants challenged these convictions on grounds of interested testimony and lack of independent corroboration.

1. Whether the prosecution established the existence of an unlawful assembly with a common object to commit murder under Section 149 IPC.

2. Whether the oral dying declaration attributed to the deceased was reliable and voluntary.

3. Whether the testimonies of the deceased’s sons (PW-5 and PW-6), being interested witnesses, could form the basis for conviction.

The court applied Section 141 and 149 of the IPC regarding unlawful assembly and vicarious liability.

Precedents such as *Sikandar Singh v. State of Bihar* and *Subal Ghorai v. State of W.B.* established that "common object" can be formed on the spur of the moment and is determined by the conduct and arms carried by the assembly.

Regarding oral dying declarations, the court followed *Poonam Bai v. State of Chhattisgarh* and *Arun Bhanudas Pawar v. State of Maharashtra*, which dictate that such statements must be treated with extreme caution, especially when medical evidence suggests the deceased might not be in a fit state to speak.

As for interested witnesses, the court relied on *Gajula Venkateswara Rao v. State of A.P.*, holding that relationship is not a ground for discarding evidence if it has a "ring of truth".

The court found the medical evidence (post-mortem report) confirmed three gunshot injuries, including a fatal wound to the head that lacerated brain matter.

Given these injuries, the court rejected the oral dying declaration, noting it was not recorded in the initial fardbeyan (FIR) and lacked medical certification of the deceased’s fitness to speak.

However, the court upheld the direct eyewitness accounts of PW-5 and PW-6, ruling that their presence at the school was natural and their testimony regarding the assault was consistent.

The court distinguished between the roles: Fiddu and Rajesh were identified as the active shooters, whereas Ram Brat and Jalendra were found to have participated only in the initial physical assault (fists and kicks).

Therefore, while the shooters were liable for murder, the other members of the assembly were only liable for the overt acts of rioting and causing hurt.

The court partially allowed the appeals of Ram Brat Yadav and Jalendra Yadav, setting aside their murder convictions and instead convicting them under Sections 147 (rioting) and 323 (voluntarily causing hurt) of the IPC, sentencing them to one year and six months respectively, with the sentence to be set off against time already served.

Moving forward, the period of incarceration for Ram Brat and Jalendra shall be adjusted accordingly.