SHARMA, J. - (1.) SINCE all the three appeals arise out of the judgment dated 31. 5. 1984 in one Sessions case No. 25/81 (29/81), they are being decided by this common judgment.
(2.) THE appellants were tried for offence under Sections 148, 307/149, 324/149 and 323 IPC and at the conclusion of trial, the learned trial Judge convicted and sentence them in the following manner : Appellants Shyam Sunder @ Munna Under Sec. 307/149 Five year's rigorous imprisonment with a fine of Rs. 1000/ -. Appellants Surendera @ Pappi, Surendra @ Guddu, Shyam, Anil Kumar and Mahesh Chandra: Under Section 307/149 Three years Rigorous' rigorous imprisonment with a fine of Rs. , in default thereof, to under to two months rigorous imprisonment. All the appellants Under Section 147 IPc One year's rigorous imprisonment Appellant Shyam Sunder @ Munna Under Section 148 IPc Two years' rigorous imprisonment Appellant Shyam Sunder @ Munna Under Section 324 IPc Two years' rigorous imprisonment Appellants Surendra @ Pappi, Shyam, Anil Kumar, Mahesh Chand and Surendra @ Guddu Under Section 324/149 IPc One year's simple imprisonment Appellant Anil Kumar and Mahesh Chand Under Section 323 IPc Six months' simple imprisonment Appellants Shyam Sunder @ Munna, Surendra @ Pappi, Shyam, and Surendra @ Guddu Under Section 323/149 IPc Two months' simple imprisonment On 6. 8. 80 complainant Umesh Chand (PW12) lodged a written report at Police Station Ramganj, Ajmer, alleging therein that on the day of incident at 9. 30 PM he along with Roshan Singh, after taking meals, left the house situated in Govind Nagar and while they were sitting at the bridge known as `mandir wali pulia', all of a sudden two Tempos stopped there at 9. 45 PM. Ten persons, five in each tempo were sitting inside. Soon they alighted from the tempos, all the them pointing towards Roshan Singh shouted "maro SALE KO JAANSE". Describing the names of 6 known accused as Avtar Singh Punjabi, Munna @ Shyam Sunder, Shyama Sadhu, Anil Sharma, Mahesh, Surendra @ Gudu Gulab Badi-wala, the complainant alleged that Avatar Singh had a naked sword (Katar), while Shyam Sunder @ Munna had a knife. Accused Avtar Singh struck a Katar blow on the left side of chest of Roshan Singh, while Munna inflicted knife blow on the left of back. When Munna tried to repeat the blow, Roshan Singh saved his head by raising right hand, as a result of which 3 fingers of his right hand were cut. Thereafter Roshan Singh fell down. Hearing the cries, Davendra Singh and Rajendra Rawat came running from the side of Govind Nagar. Thereafter all the three intervened and the accused persons left the place in the tempos. The complainant also alleged that injured was also beaten by legs and fists. Lastly the complainant alleged that accused said "jinda na rah pawe". On the above written report, the police registered a case for offence under Section 307 IPC vide FIR No. 88/1980 and proceeded with the investigation. Having completed entire formalities as to the investigation, the police submitted a charge sheet against the appellants. The learned trial Judge framed charges against the accused appellants. The accused pleaded not guilty and claimed trial. During trial he prosecution examination as many as 19 witnesses and got exhibited some documents. Thereafter the accused were examined under Section 313 Cr. P. C. At the conclusion of trial and on hearing the counsel for the parties, the learned trial Judge found the accused appellants guilty and accordingly convicted and sentenced them in the manner stated herein above. Hence the present appeals: At the first instance, learned counsel for the appellants contended that the Trial Court has committed serious error in convicting appellant Surendra @ Pappi, inasmuch as there is not an iota of evidence even to infer his presence, what to say of his participation in the commission of offence. Learned counsel submitted that he was not named in the detailed report, Ex. P. 12, lodged by the complainant. He also drew my attention to the statement of injured Roshan Singh PW11 wherein the witness has specifically deposed that Surendra did not assault him. He was not sure whether Surendra was intervener or was an associate of accused. In this back-ground, learned counsel argued that appellant Surendra @ Pappi deserves to be acquitted of the charges.
(3.) I find force with the above argument. It is true that name of appellant Surendra @ Pappi does not find place in the written report Ex. P. 12, lodged by PW12 Umesh Chand, upon which regular FIR, Ex. P13 was registered and it contains the names of the accused and the manner in which the incident took place. That apart, PW11 injured Roshan Singh has merely stated about the presence of Surendra at the place of incident. At the end of cross examination, this witness has admitted that appellant Surendra did not assault him. He further stated that he cannot say whether Surendra was with the interveners or was a member of the team which assaulted him. In this view of the matter, the conviction of appellant Surendra @ Pappi cannot be sustained and he is entitled to be acquitted of the offences charged with. For rest of the accused, namely, Shyam Sunder @ Munna, Shyam, Anil Kumar, Mahesh, and Surendra Singh @ Guddu, learned counsel frankly conceded that they do not wish to challenge their conviction under Sections 147, 148, 324, 324/149, 323 and 323/149 IPC and in my view rightly so. On scrutiny of evidence it appears that three eye witnesses, injured Roshan Singh (PW11), Umesh Chand PW12 and Rajiya Kanjar PW13 have categorically deposed that appellant Shyam Sunder @ Munna inflicted knife injuries at the back and fingers of hand of injured Roshan Singh, PW19 Ramrakh has deposed that Mahesh caught him by waist and appellant Anil Kumar inflicted injuries on his nose. This fact stands in corroboration with the medical evidence. The evidence on record further establishes that all these accused appellants came together in two auto rickshaws, demand Rs. 500/- from injured Roshan Singh. When Roshan Singh refused to fulfill their demand and left the place, the appellants chased him and inflicted injuries and thereafter all the appellants left the place together in the auto rickshaws. It is true that out of five appellants, only three appellants namely Shyam Sunder, Anil Kumar and Mahesh, as per the evidence of eye witnesses have actively participated in the commission of crime and rest of the appellants were members of unlawful assembly. In the instant case, all the accused appellants, came together in two auto rickshaws, chased the injured, committed the crime and then left the place together, meaning thereby all the appellants were together right from beginning till the end and thus were members of unlawful assembly. In my view, in order to convict the members of an unlawful assembly by the application of Section 149, it is not necessary to decide as to which of the accused persons inflicted what particularly injury. Once it is held that there was an unlawful assembly then each and every member of that unlawful assembly who acts in the prosecution of its common object is equally liable irrespective of whether some of them have not been assigned any role of actually committing that particular offence. Lastly, learned counsel appearing for the appellants have strenuously contended that conviction of appellants under Section 307 read with Sec. 149 IPC cannot be sustained. Referring the evidence, learned counsel contended that common object of the appellants was simply to give beating to injured Roshan Singh and they cannot be said to have intended to cause his death. According to the prosecution, it was accused Avatar Singh who was responsible for causing grievous injury to the injured, which according to medical opinion was sufficient to cause death in the ordinary course of nature. ;