M. C. JAIN, J. - (1.) THE appellants were convicted by the Sessions Judge, Bharatpur, by his judgment Dated November 7, 1973, for the offences under Sections 302/149, 326/149, I. P. C, and some of them have been convicted under Sections 148, 147, 326, 324, and 323 I. P. C. Under Section 302/149, I. P. C. , they have been sentenced to imprisonment for life and under section 326/149, and 326, I. P. C, they have been sentenced to five years' rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of fine to undergo a further rigorous imprisonment for one year. Those, who have been convicted for the offence under Sec. 323, I. P. C, have been sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 200/-, in default of payment of fine to undergo further rigorous imprisonment for six months and those who have been convicted under Sec 148, I. P. C, have been sentenced to three years rigorous imprisonment and those, who have been convicted under Sec. 147, I. P. C, have been sentenced to two years' rigorous imprisonment. THE substantive sentences have been ordered to run concurrently.
(2.) THE prosecution case, as unfolded at the trial, is that there is a Rathe-wala field situated in the out skirt of village Khainchtan belonging to Chav Khan and Naval Khan. THEre had been commission of theft on that field earlier as well, so before dawn on 24. 3. 1969 Chav Khan and his brother Amru (P. W. 11) concealed themselves in the field of Mehtabi. THEy observed Kalu alias Muhruddin and lliyas tying the cut crop of gram in bundles. THEy lifted those bundles and started from the field. Amru (P. W. 11) was sent to the village by Chav Khan to call some men from the village. He, thereupon, visited the village and awoke Atar Khan, Hulla and Dhoop Khan and told them that Kalu and Iliyas are tying gram, so they have been called by Chav Khan. THEreupon all the three accompanied Amru to the fields of Rathewala, which was at a distance of 10-12 fields. Kalu and Iliyas met them carrying bundles of gram at the Charkhi of Sallu Hazi. Chav Khan had also arrived at the Charkhi of Sallu Haji following Kalu and Iliyas. On seeing them, both of them dropped their bundles and ran away towards the bungalow of Papaiya, which was at a distance of about 3-4 fields from Sallu Hazi's Charkhi. THEn they lifted the two bundles and brought them to the Per (thrashing floor) of Atar Khan THEy did not carry the bundles to the Per of Chav Khan, but Chav Khan's Per adjoins the Per of Atar Khan. In the F. I. R. Statement (Ex. P/1), by Makbooli (P. W. 1), it was stated that when Hulla and Atar Khan had gone to the field of Rathewala before dawn, they observed Kalu, Iliyas and Rujdar tying the cut crop of gram. THEy were prevented there. THEn they left the bundles and ran away. THEreafter Hulla and Atar Khan brought the gram crop at the thrashing floor, which is near the village on the way of Kundan Nagla and they along with Dhoop Khan started winnowing operations, it is alleged that at 8. 03, a. m. , 17 accused persons assembled at the bungalow of Papaiya and thereafter they come to the Per of Atar Khan armed with Pharsas, Ballam and Lathis. According to Amru, Sallu came a little ahead of them by 10-12 paces and told that they will settle the matter regarding the gram and the report may not be lodged to the police. Soon thereafter the accused persons opened an attack on Atar Khan, Hulla and Dhoop Khan. On hearing their alarm Kamal Khan (P. W. 2), Ajmat (P. W. 3), Muttar (P. W. 9), Sampat (PW 10), Amru (P. W. 11), Smt. Mahto (P. W. 19), and Chand Mal (PW. 20) were attracted to the crime scene. Makbooli was already at the place of occurrence. THEse witnesses were also dealt with injuries by the members of the accused party. According to F. I. R. version Lila (P. W. 21), Ratti (P. W. 22), Chahat (P. VV. 23) and Inayat (P. W. 24), residents of Sindhara had also arrived there and rescued them. THE accused persons then went away from the spot. Out of the injured persons, Atar Khan and Hulla died. Atar Khan died on the way to Kama and Hulla died on the way when he was being carried from Kama to the General Hospital, Bharatpur. Jaswant Singh (P. W. 4), A. S. I. , Police Station, Kama, when came to know about the occurrence, visited the Govt. Dispensary, Kama, at about 3. 00, p. m. He recorded the statement (Ex. P/1) of Makbooli (PW. l), wife of the injured Chand Mal. He sent the statement to the Police Station for registration of the case and he commenced investigation. On receipt of the F. I. R. statement (Ex, P/l), case under Sections 148, 149, 302, 307 and 324, I. P. C , was registered by the S. H. O. at 4. 30, p. m. Shri Jaswant Singh then prepared the Panchnama Lash (Ex. P/3 ). At about 5. 00, p. m. , investigation was taken by Shri Karan Singh (C. W. I ). Dr. Nathta Mal (P. W. 8) conducted the autopsy on the dead body of Atar Khan. He found eleven injuries on the person of Atar Khan, out of which, eight were incised wounds, two were contusions and one was an abrasion. Two incised wounds were grievous and one contusion was grievous. THE contusion has caused fracture of the right humerus bone. Out of the two grievous incised wounds, one grievous wound was an ulna bone cut at the wrist. THE grievous incised wound, which proved fatal, was an incised wound 8" x 1-1/4" and bone deep, whereby the left parietal and temporal bones were cut down to the brain matter. According to him, this injury No. 7 on the head, was sufficient to cause death in the ordinary course of nature. THE Post Mortem Report is Ex. P/25. He also examined the injuries on the persons of Muttar (P. W. 9) Mst. Kapoori, Mst. Mehto (P. W. 19) and Sampat (PW. 10) on 25. 3. 1969 between 10. 00, a. m. , to 10. 35, a. m, Muttar had two contusions vide injury report Ex. P/21, Mst. Kappori had one swelling and one abrasion vide injury report Ex. P/22, Mst. Mehto had one swelling and two abrasions vide injury report Ex P/23, Sampat had six abrasions and two swellings vide injury report Ex. P/24. THE injuries on the persons of all these injured were simple in nature. Dr. Banshi Dhar (P. W. 15) conducted the Post Mortem Examination on the dead body of Hulla on 25. 3 1969 at 12. 35, p. m. In all he found eleven injuries on the person of Hulla, out of which three were incised wounds, three were lacerated wounds, one bruise, one contusion, two abrasions and one injury in the nature of bleeding from the left ear and both sides of nose. Out of the eleven injuries, three injuries were grievous, two by blunt weapon and one by sharp weapon. THE blunt weapon grievous injuries were in the nature of compound fracture of tibia of fibula resulting from the lacerated wound on the right lower one third of the leg and the other was fracture of nasal bone resulting from contusion 1/2"x1/2" withecchymosis on the nose just near the nasal bridge. Injury No. 9 was a fatal injury. According to the Doctor, the incised wound of the occipital region was sufficient in the ordinary course of nature to cause death, as the bone underneath was cut. THEre was one lacerated wound on the left parietal occipital region, which was bone deep. He also examined the injuries on the person of Kundan, Ajmat Amru, Dhoop Khan and Chand Mal. He found one abrasion and one complaining of pain on the person of Kundan. On the person of Ajmat be found one lacerated wound, one contusion, one bruise and one abrasion. On the person of Amru one incised wound was found on the left groin and one abrasion on the left shoulder. On the person of Dhoop Khan, he found one incised wound on the left upper arm causing fracture of the humerus bone and the rest of the three injuries on his person were in the nature of lacerated wound, abrasion and bruise. Chand Mal had two incised wounds and one contusion. THEre was a depressed fracture of the frontal bone. THE other incised wound was on the middle of vertex vertical touching the fore-head. Karan Singh S. H. O. (CW 1) conducted spot investigation and also arrested the accused persons on various dates and on their information and at their instance recoveries of weapons were also effected. After completion of investigation, 15 accused persons were challaned and they were committed by the Addl. Munsif-Magistrate, Deeg, by his order dtr 28. 4. 1971. In respect of two accused persons, namely Suleman and Sahab Khan, cognizance was taken by the learned Magistrate on 14 10. 1970 and he conducted an inquiry against them, but during the pendency of the inquiry, the accused Suleman died. However, after inquiry Sahab Khan was committed on 8. 1. 1973 to stand trial for the offences under Sections 147, 323 and 302/149, I. P:c, Both the Sessions Cases, that is, Sessions Case No. 12 of 1971 against fifteen accused persons and Sessions Case No. 7 of 1973 against the accused Sahab Khan, were consolidated by the learned Sessions Judge, vide order dated 8. 1. 1973 and a joint trial was conducted. During the pendency of the trial, the accused Sallu also died. Thus, in all fifteen accused persons were tried. THE accused were charged of the various offence, but they denied the charges and claimed to be tried. At the trial, the prosecution examined as many as twenty- five witnesses and the statement of the Investigating Officer was recorded as a Court witness. THE statements of the accused persons were recorded, in which they denied the prosecution case and stated that they have been falsely roped in out of ill-will, as they belong to the party of Suleman. While the complainant and the prosecution witnesses belong to the party of Bhagwat and Kamal Khan. THEy denied having given any information and having effected any recoveries. THE accused persons examined one witness in defence Ishaq (D. W. I ). THE learned Sessions Judge found the case against the appellants proved, whereas benefit of doubt was given by the learned Sessions Judge to the six accused persons, namely. Sahab Khan, Iliyas, Deenu, Majra, Bhagmal and Kamar Khan. It was found by the learned Sessions Judge that the nine accused persons were the members of the unlawful assembly, the common object of which was to cause murder and to cause grievous injuries with sharp weapons. Consequent to that finding, the learned Sessions Judge convicted and sentenced the accused persons for the offences under Sections 302/149 and 326/149, I. P. C. , and for other individual offences. Dissatisfied with their convictions and sentences the present appeal is filed. We have heard Shri M. L. Garg, learned counsel for the accused-appellants, and Shri R. C. Maheshwari, learned Public Prosecutor, for the State. Mr, M. L. Garg, learned counsel for the appellant, first of all submitted that the origin and the genesis of the occurrence has not been established by the prosecution beyond all reasonable doubt and so it is not known as to what led to the occurrence. The version given by Amru neither finds corroboration from the statement of Dhoop Khan, nor it finds corroboration from the F. I. R. Chav Khan has not been examined by the prosecution, so it cannot be said that stealing of gram on the part of Iliyas and Kalu or Rujdar ultimately culminated in the press it occurrence. He urged that when Sallu begged to be excused, on behalf of the accused party and when he had expressed that they are prepared to settle the matter of stealing of gram, there was no occasion for the accused party to have opened an attack on the complainant party. The prosecution has not come out with the case that Kalu and Iliyas were given good thrash, which actually enraged and infuriated the members of the accused party, so in order to take revenge they assembled at the bungalow of Papaiya armed with various weapons and proceeded to wage in aggression on the accused party. He pointed out that according to Amru. Chav Khan sent him to the village and in the village he informed Atar Khan, Hulla and Dhoop Khan and brought all the three with him, but Dhoop Khan has not supported this version of Amru. Dhoop Khan has stated that he does not remember that whether Amru had come to his house to awake him in the early morning on the day of occurrence and he also stated that he does not remember whether he along with Atar Khan, Hulla and Amru, went towards the field of Chav Khan or not. He was confronted with portion A to B of his police statement (Ex. p/14), then he stated that he cannot recollect whether he stated that portion or not, as his memory is weak. Makbooli gave a different version. According to her F. I. R. statement Hulla and Atar Khan had gone to Rathewala field and they observed not only Kalu and Iliyas, but also Rujdar tying gram crop and asked them not to tie the gram. Thereupon they left the potlis. It is true that the version given by Amru, has not been fully supported by Dhoop Khan, but Dhoop Khan has not contradicted what Amru has stated. He simply stated that he does not remember. As regards the version given by Makbooli (P. W. 1), it may be stated that she had no personal knowledge. It appears, that whatever information she had, she gave out that version on the basis of that information. However, it appears from her version as well that some accused persons were concerned with the act of stealing gram from the field of Rathewala and it was in that back-ground or context that the occurrence took place. From the side of the accrued persons, the F. I. R. lodged by Chav Khan at the Police Station, Kama, in connection with the theft of gram, has been placed on record as Ex. D/21. This F. I. R. was lodged on 25. 3. 1969, at 2. 00, p. m. , regarding the occurrence, which took place on 24. 3. 1969. F. I. R. Ex. D/21 was put to Shri Karan Singh (C. W. 1) in cross-examination, who has proved that F. I. R. The version given by Amru finds corroboration from the report Ex. D/21. The version in Ex. D/ 21 is that Chav Khan and Amru concealed themselves in their field and they saw Kalu and Iliyas tying gram crop and that Amru was sent to the village to call people. Chav Khan followed them and from the village Amru came accompanied with Atar Khan, Hulla and Dhoop Khan. All of them surrounded Kalu and Iliyas, Shen Hulla and Atar Khan inflicted Lathi blows on them and thereafter they left the bundles and begged to be excused- Thus, in our opinion, it cannot be doubted that the present occurrence took place in the background of stealing of gram by Kalu and Iliyas and both of them must have been belaboured and in order to take revenge thereof the accused persons who were all closely related to each other, assembled at the bungalow of Papaiya armed with weapons It may be stated that it may be that Sallu pleaded for excuse on behalf of the accused-party and to settle the matter, but it does not appear that the matter was in any way settled. It is worth taking note of that besides the two deceased persons, as many as nine persons had been injured, including Kundan (P. W. 25), who has not supported the prosecution case, as such, but in fact had received injuries. If some sort of settlement had been arrived, the occurrence culminating into two deaths and sustaining of blows by nine persons, would not have taken place. It is clear beyond all shadow of doubt that the occurrence took place in the background as stated by Amru and in all probability Kalu and Iliyas must have been belaboured by Atar Khan and Hulla or by any one or more of those persons Chav Khan, who happened to meet Kalu and Iliyas near Sallu Haji's Charkhi. It is this previous incident of act of stealing of gram by Kalu and Iliyas and belabouring of them, which in our opinion, ultimately culminating in the present occurrence. Mr. M. L. Garg further submitted that the prosecution case hinges on the evidence of the injured witnesses, who are closely related with each other, so they are highly interested witnesses and not only that their evidence is a tutored one, the possibility of over-implication of the accused persons, cannot be ruled out, as the major members of the families of the accused persons have all been implicated. All the witnesses have deposed uniformly, the sequence, of events which look place during the occurrence. He urged that the graphic description of the sequence of events uniformly given by the witnesses, clearly point out not only that the witnesses have conspired and decided to give version of the occurrence in an uniformly manner, but it also shows that the version given by them is highly unnatural and improbable. The occurrence can in no way take place in the manner, as stated by the witnesses. Their testimony also stands falsified by the medical evidence. So no reliance should be placed on the testimony of the injured witnesses when such is their state of evidence. We have considered the above submissions of Mr. Garg Whatever be the evidence of the injured witnesses relating to the sequence of events, the question will arise whether the whole of their testimony can be discarded on the grounds contended by Shri Garg. It is true that the injured witnesses are all near relatives. Ajmat is the husband of Chandmal's sister and Chandmal injured is the husband of Makbooli. Sampat is also Chandmal's Behnoi. Ajmat and Sampat, both are brothers. Kamal Khan is the nephew of Chandmal. Muttar is also Chandmal's Behnoi. Mst. Mehto is Mokbooli's Domni and Mst. Kapoori is Makbooli's Phuphi. Dhoop khan and the two deceased Atar Khan and Hulla and Kamar Khan are her Devar. On the side of the accused party Shri Mohammed is the son of Sallu and Deenu is the grand son of Sallu. The accused Sampat is the nephew of Sallu. Iliyas is the son of Sampat. Pitalla is the nephew of Sallu and Rujdar is the son of Pitalla. Kamar Khan, Sahab Khan and Sharab Khan are real brothers. Papaiya, Majra. Gafoor' Zuhruddin and Kalu, all the five are real brothers and are related to Sallu being brothers in relations. Mst. Makbooli (P. W. I) has deposed that Suleman, Zuhruddin, Kalu, Gafoor, Bhagmal, Sallu, Shri Mohammed, Deenu, Sampat, Iliyas and Sahab Khan were armed with Pharsa. Rujdar and Majra were armed with Ballam. Papaiya, Pitalla, Sahab and Kamar Khan were armed with Lathis and one Suleman was also there. The Bungalow was of a distance of about 50 paces from Makbooli's Per. Makbooli stated that when the accused persons came near the Per, Suleman exhorted 'mardo' Aur Kat Do. Police Meri Hai. Adalot Meri Hai. Thereupon she raised an alarm. Then she stated that Suleman inflicted a Pharsa blow on the head of Atar Khan followed by Pharsa blow on his head by Sallu. Then Kalu inflicted Pharsa blow on right shoulder, which was followed by Deenu on left wrist. Sharab then cut the right thigh with Pharsa, followed by cutting of left thigh by Zuhruddin When he was groaning lying Majra gave a thrust with Ballam in his abdomen and all the accused persons inflicted blows with Pharsa, Ballam and Lathi. Then she stated that when Hulla tried to save Atar Khan, then first Sampat gave a Pharsa blow on Bulla's head, followed by Pharsa blow by Iliyas on his head, which was further followed by Gefoor, who inflicted Pharsa blow on the back of the neck. Majra gave a challam blow on his left ear. Rujdar gave Ballam blow on the back, again followed by Ballam blow by Majra on the chest, which was again followed by a Ballam blow on the chest by Rujdar. Bhag Mal inflicted a Pharsa blow on his right thigh. Then all the seventeen accused persons inflicted Lathi, Pharsa and Ballam blows. Then Dhoop Khan came for rescue. Suleman inflicted a Pharasa blow on Dhoop Khan, which hit his left arm, which was followed by a Pharsa blow on the head by Zuhruddin. Iliyas inflicted Pharsa blow on the left blow. Then all the accused persons gave blows with their weapons. Then Chandmal, her husband, came to rescue. Sahab gave Pharsa blow on his left eye. Sahab gave Lathi blow on his head, followed by a Lathi blow by Papaiya on his right side of the head. Then the accused persons continued giving beating with Pharsa and Lathis. Her son Amru came to rescue his father Chandmal. A Ballam blow was given by Rujdar on his right thigh and Papaiya gave Lathi blow on his left shoulder Then Makbooli stated that Sampat, Muttar and Ajmat also came for rescue. Then all the seventeen accused persons beat them. She also stated that a reverse blow of pharsa was also given on her left buttock by Sharab, but she was not medically examined. She stated that after beating having been given, alt the accused persons kept them-selves away, but she further stated that the eight accused persons, namely, Papaiya, Zuhruddin, Gafoor, Majra, Iliyas, Deenu and Sahab again came on the Per and they gave beating to Hulla and Atar Khan. The other injured witnesses have also likewise deposed with some variations relating to the sequence of events. The specific injuries assigned to some of the accused persons on the person of Atar Khan, Hulla, Dhoop Khan, Ajmat, Amar and others, do not find support and corroboration from the medical evidence. No stab or piercing wound has been found on the person of any one. So to some extent the evidence of the witnesses is discrepant with medical evidence. In the F. I. R. statement, specific overt acts have been attributed to only seven accused persons and to the rest no specific overt acts have been attributed in the F. I. R. It is also unbelievable that the occurrence could have taken place in the sequence and in the manner as stated by Mst. Makbooli, that first Atar Khan was given beating in the sequence, as deposed by her. Thereafter Hulla came to rescue him and then the accused persons dealt blows in the sequence, as stated by her. Then Dhoop Khan came to rescue and then followed by Chandmal, who was followed by Amru An individual witness may be able to depose about the assailants of 2-3 injuries along with the part of the body on which the blow was given, but every witness, who has either witnessed the occurrence or who had sustained injuries in the occurrence, by no stretch of imagination can be in a position to depose the sequence of injuries along with their authors and the parts of body on which the injury or injuries were inflicted. In the F. I. R. statement, Mst. Makbooli came out with the version that the accused person pounced upon Atar Khan, Dhoop Khan & Hulla, who were working on the Per, with Lathi, Ballam and Pharsa. Then she gave out specific injuries on the part of the seven accused persons, that is, Sallu on the head of Amru with Pharsa, Sharab on Chandmal with Pharsa, Kalu and Gafoor with Pharsa on Dhoop Khan, Sari Mohammed and Sampat with Pharsa on Hulla and Ballam by Rujdar on Amru. On what parts of the bodies these accused persons have inflicted blows, have not been stated, except the injury on the head of Ataru by Sallu. It may be stated that when a number of assailants armed with various weapons, open an assault on number of victims, then it is impossible to observe, who inflicted what blow on which part of the body of the victim. Thus, to our mind it was impossible to observe the occurrence and to give graphic description as to sequence, as stated by Mst. Makbooli and other witnesses. This criticism of Mr. Garg appears to be correct that the witnesses have came out with the version as if they have decided to give that version and their testimony appears to be to some extent tutored. But still the question is whether on the above basis their testimony looses all its credibility and value. No doubt with regard to sequence of events, there are improvements and embellishments and even exaggerations in the statements of the witnesses and it can be said that it was not possible for them to have given the account of individual injuries on the persons of the victims by each assailant, but the main question is, who were the members of the assailants' party and in this connection the F. I. R. statement of Smt. Makbooli assumes great significance. The question of implication of the accused persons, has to be considered in the light of the F. I. R. statement (Ex. P/l) of Mst. Makbooli. That statement was completed by 4 00, p. m. , on 24. 3. 1969 by Jaswant Singh at Kama Dispensary. In that statement Mst. Makbooli has named as many as 16 accused persons, and, there is omission of the nare of Iliyas. For Iliyas, nothing has been stated by description or otherwise and only 16 accused persons have been named. The question arises as to whether the names of the 16 accused persons in the F. I. R. can be the result of any deliberation? Was there any time for deliberation? An argument has been advanced by Mr. Garg that the F. I. R. was ante-timed and whatever time has been stated by Jaswant Singh, even that time was sufficient for deliberation, so the possibility of over implication of the accused persons in the F. I. R. cannot be ruled out He pointed out certain suspicious circumstances relating to F. I. R. If F. I. R. would have been recorded on 24. 3. 1969, then the witnesses should have been interrogated on that very day or on 25. 3. 1969, but the interrogation from the witnesses began from 27. 3. 1969. Some of the witnesses were interrogated on 29. 3. 1969. Delayed interrogation of witnesses casts a serious suspicion on the question of recording of the F. I. R. at the time at which it is said to have been recorded. Besides that, the F. I. R. reached the court on 3. 4. 1969, though in the original F. I. R. the date recorded by the official of the Court is 3. 9. 1969, which may be a slip on the part of the official and it may be taken to be 3. 4. 1969, still it had reached very late. This again casts a serious doubt in the time and date of the recording of the F. I. R. We have considered the aforesaid submissions of Mr. Garg. But we are of the opinion that these circumstances, which on their face appears to be some what suspicious and the court witness Shri Karan Singh has also not explained any reason for delayed interrogation of the witnesses, the F. I. R. statement was not ante-timed. It was recorded on 24. 3. 1969 at 4. 00, p. m. , as deposed to by Jaswant Singh (P. W. 4), whose statement further gets corroboration from the two independent witnesses, who are Motbirs to Panchnama, namely, Bhagwat Prasad (P. W. 12) and Kaluram (P. W. 14 ). The statement of Jaswant Singh further gets corroboration from Makbooli's statement. It may be mentioned that the Panchnama was prepared on 24. 3. 1969 after recording of the F. I. R. statement (Ex. P/l ). The Motbirs of this Panchnama (Ex. P/5) are Bhag-wat Prasad and Kaluram. Bhagwat Prasad is the resident of Jurhara and is Sunar by caste and Kaluram is a resident of Vadhcheda and is Jatav by caste According to Kaluram, he had visited the Dispensary in connection with obtaining medicine The Panchnama (Ex. P/3) embodies whole of the F. I. R. statement of Makbooli, so looking to this part of the investigation conducted by Jaswant Singh, proved by Jaswant Singh, Bhagwat Prasad and Kaluram, we are clearly of the opinion that the F. I. R. statement (Ex. P/l) was recorded on 24. 3. 1969, at 4. 00, p. m. , as deposed by Jaswant Singh. Further to our mind there was no time for deliberation. Atar Khan had already died. Hulla was in a troubled state and was swinging between life and death. Dhoop Khan Chand Mal too have received grievous hurts. The occurrence had taken place at about 8. 00, a. m. Kama is at a distance of about nine miles from the place of occurrence. Time must have been taken to remove the injured persons to Kama. Thus, it is unbelievable that there was any time for deliberation and that Makbooli gave out her statement as a result of any deliberation in connection with implication of the accused persons. When Kalu and Iliyas were intercepted and when in all probability they must have been belaboured, then it can be that major near relatives of Kalu and Iliyas had assembled at Papaiya's bungalow with arms. The learned Sessions Judge, on the basis of some omissions and discrepancies, has given the benefit of doubt to six accused persons, namely, Sahab Khan, Iliyas, Deenu, Majra, Bhagmal, and Kamar Khan. Suleman and Sallu have already died. So now the question arises whether the present nine appellants were the members of the unlawful assembly or not? In that connection Mr. Garg submitted that no participation has been alleged on the part of Shri Mohammed. No piercing wounds had been found on the person of Hulla and Amru So Rujdar's presence also becomes highly doubtful. Injuries attributed to Zuhruddin do not find corroboration from the medical evidence. So their presence becomes doubtful and as such it should be found that they were not the members of unlawful assembly. As regards participation we may state that participation is not essential, If it is established that any person is a member of an unlawful assembly with a common object, then that is sufficient and it is not necessary that any specific overt act should further be established on his part. Reference in this connection may be made to Bhe Ram v. State of Haryana (1 ). In that case it was observed that : - "in a case of rioting under Section 149, it is not necessary that any specific act should be attributed. It is sufficient if it is proved that all the members of the unlawful assembly shared the common object of the said assembly which was undoubtedly to cause the murder of the deceased. Therefore, it could not be argued that no overt act was attributed to the appellants except a general statement that they took part in the beating of the deceased person. " As already stated, it was not possible for the witnesses to have deposed about the specific injuries by each individual accused on the persons of the victims. Even when some specific injuries have been assigned to any of the accused and if it does not find corroboration from the medical evidence, it cannot be said that he was not a member of unlawful assembly, but if the weapon of offence is such, which causes a particular type of injury and there is absence of that type of injury, then that may raise a serious doubt about such an assailant being a member of unlawful assembly. This may apply to Rujdar, although his name finds mention in the F. I. R. , but such is not the case of other accused persons, as they were armed with Pharsas and Lathis, and there were Pharsa and Lathi blows on the person of the victims and it was not possible for the witnesses to have come out with any specific overt act on the part of each of the assailants Although, Rujdar's name finds mention in the F. I. R. and he may be a member of the unlawful assembly, but still no spear or Ballam injury has been found on any of the victims, that is, no penetrating or piercing wound has been found on the person of any of the victims. In our opinion, it would be reasonable to extend the benefit of doubt to him. So we hold that it is not established beyond all reasonable doubt that Rujdar was the member of unlawful assembly. But so far as the case of the other appellants are concerned, we hold that they were members of the unlawful assembly. It is next urged by Shri M. L. Garg, learned counsel for the appellants, that the common object of the unlawful assembly was not to cause the death of Atar Khan and Hulla. The complainant party and the accused party are the descendants of the common ancestor. There was no previous enmity. The occurrence is only an offshoot of the incident relating to stealing of gram by Kalu and Iliyas and they were belaboured when they happened to meet Atar Khan, Hulla, Amru and Dhoop Khan. Considering the background, in which the occurrence has taken place, the common object of the unlawful assembly, at the most, could only be to cause grievous injuries and it could not be to open any murderous assault on the complainant party, as they were their own kith and kin and the relations in the past between both the parties were cordial Mr. Garg submitted that even this knowledge cannot be imputed to the members of the unlawful assembly that they knew that death is likely to result in the assault of and or more members of the complainant party. Mr. Garg submitted that the injury on the person of Atar Khan and Hulla would be indicative of the fact that the common object of the unlawful assembly was only to give severe thrashing. Atar Khan and Hulla had only one injury each on their heads, which had proved fatal The other injuries are not on any vital part of the body. If the common object would have been to cause death of Atar Khan and Hulla, blows would have been repeated on the vital and venerable part of the deceased persons. The prosecution has also not established that the fatal head injuries on the persons of Atar Khan and Hulla, were first in point of time. In what order the injuries were caused, cannot be known, so it cannot be said that the members of the unlawful assembly continued to associates themselves in beating the two deceased persons despite the fact that fatal blows had already been inflicted on them, so this knowledge cannot be attributed to the members of the unlawful assembly that they knew that there is likelihood of causing of death of the two victims. Besides that, Mr. Garg also submitted that the fatal blows have been attributed to two accused persons in case of each of the victims, that is, Atar Khan and Hulla. As regards Atar Khan, the head injuries had been attributed to Suleman and Sallu and as regards Hulla, the head injury had been attributed to Sampat and Iliyas. As the fatal injuries had not been attributed to any single accused person, so none of the accused persons can be held guilty of the offence under Sec. 302, I. P. C. , simpliciter and all the accused persons, who may be found to be members of the unlawful assembly, according to Mr. Garg, can only be held guilty for the offence under Sec. 326 read with Section 149, I. P. C. Mr. Garg cited some case law in support of his submissions. Mr. R. C. Maheshwari, learned Public Prosecutor, on the other hand, submitted that as many as seventeen accused persons went armed with Pharsa, Spears and Lathis and inflicted grievous injuries not only on Atar Khan and Hulla, but also on Chandmal and Dhoop Khan. The injuries were not only on non-vital parts of the bodies, but also on vital part of the bodies with lethal weapons, then the common object of the members of such an unlawful is obvious and apparent that they inflicted blows in prosecution of the common object of causing death of Atar Khan and Hulla and further causing grievous injuries with sharp weapons on some other members of the complainant party. Even if it is found that the common object of the members of the unlawful assembly was only to cause grievous injuries on the members of the victim-party, still when the members of the accused-party were armed-with Pharsas and spears, then it is reasonable and legitimate to attribute this knowledge on the part of the members of the accused party that they knew that the death may be the likely result of their assault. Mr. Maheshwari, therefore, submitted that in any case the case would be covered under the second part of Sec. 149, so the accused, who were found to be members of the unlawful assembly, would be held guilty of the offence under Sec. 302, read with Sec. 149, I. P. C. Mr. Maheshwari also referred to some case law.
(3.) WE have carefully considered the rival submissions made before us. It is a serious question in the instant case as to what was the common object of the unlawful assembly? Was it simply giving of severe thrashing or beating with Pharsas and Lathis So far as spears are concerned, it appears that spears where not used) or the common object was to cause murder of Atar Khan and Hulla? For the determination of this question, relations between the parties are quite significant Along with the relations, what culminated in the occurrence, cannot also be ignored. Along with the relations and the back-ground, in which the occurrence took place, the injuries, which had been inflicted in the occurrence, are also required to be given due consideration. But the first two factors need to be given much more weight and predominantly those factors would give us the clue to the state of mind of the assailant-party. Makbooli (PW. l) and other witnesses have clearly stated that before this occurrence they had no quarrel with the accused persons. They had love and affection with each other. The accused persons were not inimical or hostile to them and the members of both the parties are the descendants of a common ancestor. When such were the relations between the members of the two parties, then it is unbelievable that in the background of a tripple incident of stealing, the members of the accused-party would have formed a common object to kill any member or members of the victim-party. So looking to the relations and the circumstances, which led to the occurrence, it cannot reasonably be inferred, said and found that the accused persons formed an unlawful assembly with a common object to kill any member or members of the complainant party. Even the injuries on the person of Atar Khan and Hulla indicate that such was not the common object of the unlawful assembly, as there were only single blow on the heads of both. The other injuries mostly are on limbs and other on non-vital parts of the body. On the person of Hulla, there were two grievous injuries caused by blunt object resulting into fracture of tibia and fibula bones of the right leg and fracture of nasal bone. There was one lacerated wound on the left parietal occipital region. Besides a fatal blow on the head with sharp weapon, there were two incised wounds, one on the left forearm and the other on the left scapular region. Atar Khan had only one head injury and there were no other injuries on any vital part of the body, although he had eight incised wounds and as a result of incised wound, his ulna bone was also cut. The death of the two had also not be instaneous. From the injuries as well, thus it can be inferred that the common object of the unlawful assembly was to, cause grievous injuries on the person of Atar Khan and Hulla and any one or two members of the unlawful assembly exceeded the common object and inflicted fatal blows on the heads of Atar Khan and Hulla. Still the question is that when the members of the assailant-party were armed with pharsas and Lathis and intended to open attack with such lethal weapons causing grievous injuries, whether knowledge can be attributed to them that their actions may likely to result in death? In order that the case may fall under the second part of Sec. 149, I. P. C. , the prosecution is required to establish not only the mere possibility of action resulting into the death, but a probability of that and a definite knowledge on the part of the assailant-party of that probability. In Charan Singh vs. State (2) the provision of Sec 149, I. P. C. , has been analysed as under:- "an analysis of Section 149, I. P. C. shows that it has two portions: - the first will apply if- (1)there was an unlawful assembly, (2)the person concerned was a member of that unlawful assembly, (3)the offence was committed by a member of the assembly, and (4)it was committed in prosecution of the common object of the said assembly. For the application of the second portion of the Section the first three essentials mentioned above must be present but the fourth need not be there. Instead, in addition to the first three essentials, it must be proved, (a)that the person who is sought to be made liable knew, (b)that the offence which has actually been committed was likely to be committed, (c)in prosecution of the common object of the said assembly. " It was further observed, - "the most important requirement necessary for the application of both the portions of the Section therefore is that the act for which each of the members of the assembly can be made liable should be an act which was either actually committed or was in any case likely to be committed in prosecution of the common object of the assembly. The purpose for which the members of the assembly set out or desired to achieve is the object. Each member may have an object in view and may also have his own idea of the means with which that object is to be attained and the extent to which he is prepared to go for attaining it. 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, the object becomes the common object of the assembly. Normally a determination to achieve an object includes a resolve to meet with force any resistance that may be offered and to remove any obstruction that may be found to exist in the path leading to the attainment of the object. A common object may be formed by express agreement after mutual consultations but that is by no means necessary. It may be formed at any stage by all or 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. 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 of the nature of the assembly, the arms it carries and the behaviours of its members at or near the scene of the incident. " xx xx xx xx "even if the act is an individual act of one member and it is not actually done in prosecution of the common object all the other members will be liable for it, provided they knew and it must be noted here that positive knowledge is necessary, it is not sufficient to show that they ought to have or might have known or that they had reason to believe that it might happen that the act was likely to be committed in prosecution of the common object. The use of the word 'likely' in the second part of Section 149, I. P. C. implies something more than a possibility. A thing is 'likely' to happen only when it will probably happen or may very well happen. " In Sambhu Nath Singh v. State of Behar (3) it was observed as under :- "sec. 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a 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 Sec. 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. " Jahiruddin v. Queen Empress, ILR 22 Cal. 306. " In Moti v. State (4) their Lordships of the Allahabad High Court considered the reasons as to why it cannot be the common object of the unlawful assembly to cause the death of Harkeshi. In that case the accused persons were armed with Kantas, Gandassas, Spears and Lathis and Harkeshi had received incised wounds on the left ear, left mastoid region, left side neck, left cheek bone and temple, on the neck above the thyroid cartilage and on the left side of the front of the neck, two stab wounds, one in-front of the upper part of the left thigh and the other on the right side of the abdomen and both these injuries were dangerous and sufficient in the ordinary course of nature to cause death. It was considered that lethal weapons were used by the appellants is no doubt a circumstance, which weighs against them, but that circumstance alone cannot determine what the common object of the unlawful assembly was, Much depends upon other circumstances of the case. Reliance was placed in that case on Hanif v State (5) and Sambhu Nath Singh v. State of Bihar (6 ). The convictions of the appellants for the offence under Secs. 302/149, I. P. C. was set aside and they were convicted of the offence under sec. 326/49, I. P. C. ;