L.S. Mehta, J.
1. By his judgment, dated De. camber 6, 1967, Sessions Judge, Partapgarh has convicted the accused Uda Barad and Laxman for the offence of murder of Mst. Laduri w/o Pyara Meena, aged about 45 years, Under Section 302/34, IPC, and sentenced them to imprisonment for life each. They have also been convicted under B. 363, IPC. for kidnapping Mst Rajki d/o Pyara. aged about 16 years, and sentenced to rigorous 4 imprisonment for two years each. They were further convicted Under Section 148, IPC, and sentenced to rigorous imprisonment for one year each. The accused Laxman has also been found guilty Under Section 392, I. P.C., for taking away a silver 'Hansali' of Mst. Rajki and sentenced to rigorous imprisonment for three years. The appellants Hariram and Onkar have been convicted Under Section 302/149, I. P.C., and each of them has been sentenced to imprisonment for life. They have further been convicted Under Section 363, I.P.C., and sentenced to two years' rigorous imprisonment each. They have also been held guilty Under Section 148, I.P.C. and a sentence of one year's rigorous imprisonment has been imposed on each of them. The aforesaid sentences have been directed to run concurrently. Against the above verdict the four convicts have taken the present appeals
2. The material facts of the case as alleged by the prosecution are that on March 24, 19G7, at about 2 a.m. 40 to 50 persons, mostly belonging to the village Jethiya Kbeai, assembled and went to the village Borwana, which is at a distance of about H miles from the police station, Partabgarh. They were armed with guns, daggers, lathis etc. They wanted to takeaway by force. P.W. 3 Mat. Kajki, daughter of Pyara. This they decided to do by way of retaliation, as the accused Laxman'a wife had been taken away by the deceased Pyara's nephew Nagji and subsequently by his another nephew Vajja P.W. 14. The accused first went to Hanoi's house, situate a| No. 8, in the Bite plan Ex. P. 5. Borne of the accused, including Hariram, and Onkar appellants, asked 'Biris' from Hamji. He got up to give them 'Biris', but hid himself at the place marked No. 7 in the plan. Tho place marked 3 is where Rakma Lambra and Vajja were sleeping. Lambra, P.W. (5, was injured. Then some of the assailants went to the place marked No. 1 in the map. There they palled out Mst. Kajki. Her mother Mst. Laouri offered resistance, but she was done to death. Thereafter they proceeded to the place, marked No. 2 in the plan and removed a she. buffalo and its young one after cutting the ropes with which they wore tethered. Then some of them proceeded towards the place marked No. 4 in the above document, wherein Chokhla and Pyara were sleeping. On hearing gun fire reports, both of them got up and were stunned to see a large number of people surrounding them. They, in order to escape impending danger, ran away from the 'Path-shal'. Chokhla concealed bimaelf at the place marked No. 6 in Ex. P. 5 and Pyara ran away towards point No. 5. Some of the miscreants pursued Pyara and fatally wounded him, as a result of which he died instantaneously Chokhla also sustained certain gun shot injury on the backside of his bead when he was being chased by the attackers. Mst. Rajki, P.W. 3, wan taken by force to the village Jethiya Khedi. She was kept in the house of the accused Amra for sometime. The accused Laxman took out from her neck silver 'Hansali' Ex. 6, which she was wearing. Next day morning ehe arailed hersalf of an opportunity of making good her escape and succeeded in reaching her in law's house in the nearby village Atinera. First information report of the occurrence wag lodged by Arjun Singh P.W. 7 with the police station, Partabgarh. Thereupon the police registered a case under 8s. 148, 302/149/34, 380, 364 and 109, Penal Code, and took up investigation. Description memo Ex. P. 4, site plan Ex. P. 5, recovery memo of the 'Hansali' Es. P. 16, inquest reports Exs. P. 18 and P. 11) and other requisite documents were prepared. Poat. mortem examination of the dead body of Mst. Laduri was conducted by Dr. Kamal Nayan, Medical Officer, Partabgarh, on March 25, 1: 67. Following injuries were found on her person:
1. Stab wound right II intercostal space 2' from the mid-eternal line. 1/2' x 1/2 ' x deep penetrating into thoracic cavity.
2. Incised wound 1 ' + 3/4 ' x 1' right chest wall near axilla.
3. Incised wound 1 ' x 1/2 ' x 1/2' forehead near hair line in middle.
4. Incised wound 1 ' x 1/2 ' x 3/4' right arm anteriorly in middle.
In the opinion of the Doctor the cause of her death was internal haemorrhage into the pleural cavity and shock, produced as a result of tear into the right lung and rib fracture caused by stab wound over the right intercostal space. All the injuries were anta-mortem and were caused by a sharp edged weapon. Injury No. 1 to the rib and the lung as erievous in nature. Injury to the lung waa sufficient in the ordinary course of nature to cause her death. The dagger Ext. 7, shown to the Doctor, was capable of causing such injuries.
3. The Doctor also conducted the postmortem examination of the dead body of Pyara, Following injuries were foucd on hia person :
1. Incised wound on the top of the scalp 7 ' x 1 ' x 3/4'.
2. Incised wound left occipital region 3 ' x 1/2 ' x 1/2'.
3. There is a wide area of contusion left chest wall back below the scapula 10 ' x 7.
All the injuries were aute.mortem. Injuries Nos. 1 and 2 were caused by a sharp edged weapon. Injury No. 3 was caused by a blunt object. Injury No. 3 was sufficient in the ordinary course of nature to cause his death. In the opinion of the Doctor the victim must have died immediately after receiving the injuries.
The Doctor also examined Chokhla. The following injury was found on his person:
A circular wound lacerated 1/10' in diameter and 1/3' deep on the right occipital region caused by a fire arm. Nature of the injury was simple. On X-ray examintion a small radio opaque thing was seen in the light occipital region probably a shot. Duration of the injury wa3 about 40 hours.
4. The same day the Doctor examined Lambra. He noticed the following injuries on his person:
1, Incised wound l'x1/2'x1/2' on the left fore-arm posterior aspect 1/2' above the wrist caused by sharp weapon.
2. Contusion 2'x 1' on the left scapular region caused by blunt weapon.
5. Aftar the investigation case to a close, the police put up a challan against Motiya and 21 others in the Court of the First Class, Magistrate, Partabgarh. The learned Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207.A,, Criminal P.C., and committed all the accused to the court of the Sessions Judge, Partabgarb. The accused were charged by toe trial court under various sections of the Penal Code, including 8s. 302/ 149, 147, 148, 363/149, Penal Code. The accused Laxman and some others were further charged Under Section 392, Penal Code. All the accused denied to have committed the offences incorporated in the charge-sheets. In support of its case the prosecution examined 17 witnesses. In their statements recorded Under Section 342, Criminal P.C., the accused stated that they knew nothing in the matter and were ignorant of the alleged happening. They produced 2 witnesses, Arjun D. W. 1 and Manglia, D. W. 2, in their defence. Eventually the trial court convicted and sentenced the four appellants, as aforesaid.
6. In this Court, counsel for the appellants Laxman, Uda Barad, Onkar and Hariram contended that practically no case has been brought home against the accused Oakar and Hariram Under Sections 302/148, 363 and 148, Penal Code. learned Counsel further urged that because of the order of acquittal passed by the trial court in favour of Id accused per. Bona, convictions of the remaining 4 appellants for the offence Under Section 302, read with Section 19, Penal Code, is not in law sustainable. Counsel argues that if 18 accused, who, according to the prosecution, were responsible for causing the death of Mat. Laduri have been acquitted, the appellants, who were charged with Bbaricg the common object of the unlawful assembly, cannot be convicted for the vicarious liability arising out of the offences committed in prosecution of the common object of the assembly, In the end, counsel submitted that when the informant Arjun P.W. 7 collected material from the eye-witnesses for embodying in the first information report and the witnesses themselves did not know all the accused, the appearance of their names in Ex. P, 30 was improbable and, therefore, the prosecution story must be considered to be faked.
7. As for the first point, most important witness is P.W. 4 Hamji Mina. During the night of the occurrence he went to bed inside his house. At about mid.night both Onkar and Harimam came to his house and demanded ''Biris' from him. When he got up to give 'Biris',he saw 50 to 60 persons surrounding the locality. He was overwhelmed and suspected some foul play. He went away at a distance-of about 45 paces and concealed hirns&lf; behind a heap of cowdung. A little later he heard gun fire reports and also eaw Mst. Eajki being dragged away by the accused. The witness further says that Hariram and Onkar were carrying guns with them. He knew Hariram ani Onkar from before. The witness baa further said that Hariram and Onkar proceeded from his house towards the deceased Pyara's residence and surrounded it. In th& cross-examintion he Btatea that after the occurrence Chokhla P.W. 2 also mentioned to him the names of Hariram and Onkar. learned Counsel for the appellants submits that when the witness says that Hariram and Onkar had never been to his house, how it was possible for him to recognise them at the time of the occurrence. Its convincing answer is given in the cross-examination of the witness himselL He has stated categorically that both he and these accused UBed to take alcoholic beverage at the liquor shop of Arnod. The trial court, which recorded the statement of the witness, has relied upon his testimony and we do not see any reason why a contrary view should, be taken in the matter. It is also mentioned in the first information report that Hariram and Onkar fired gun shots at the time of the occurrence. In our opinion, evidence of Hamji is worthy of credence.
8. P.W. 2 Chokhla states that both he and Pyara were Bleeping during the night of the incident in the 'Dagla.' There is another 'Pathshal' nearby where Vajja, Lambra and Eatna were lying asleep. He knew the accused Hariram and Onkar from before. He heard 2 or 3 gun-fire reports. Soonafter Onkar came there, armed with a gun and a lathi. Hariram, armed with a gun, also accompanied him. He received one pellet in- injury on the back of his head. The total number of assailants were 50 to 60. When he and Pyara ran away, Onkar and Hariram fired their guns. The trial court placed reliance on his testimony and we believe rightly so.
9. From the statements of the above two witnesses, of whom Chokhla sustained an injury (vide medical report Ex. P-8 and P.W. 1 Dr. Kamal Nayan's statement), it is established beyond doubt that the accused 'Hariram and Onkar did form part of the unlawful tusernbly. The testimony of Chokhla and Hamji is sufficient to establish beyond reasonable doubt that Hariram and Onkar were present on the spot at the dead of the might, well-armed, and were the members of the unlawful assembly collected there. They also took active part towards the prosecution of the common object of the assembly.
10. In so far as Laxman and Uda are concerned, there is the precise statement of P.W. 2 Chokhla that he saw both of them on the spot and that the total number of assailants was 50 to 60. The most important witness regarding the presence and brisk activity of Laxman and Uda is Mst. Rajki, P.W. 3. She says that both of tnem were well armed. They entered the house wherein she and her mother were sleeping. Uda caught hold of her and tried to pull her out Her mother withstood the onslaught. Thereupon Uda and Lachman inflicted injuries to her. Then her mother fell down. Uda and Laxman pulled the witness out. When she was taken out, she saw 40 to 50 persons standing there, armed with lathis, swords and guns. She was then forcibly taken to the Village Jethiya Khedi. The accused Laxman took out from her neck her Silver 'Bansali' Ex. 6. She knew Laxman and Uda from before. The trial court, which watched the demeanour of the witness, relied upon her testimony and in our view rightly so. Nobody challenges her presence in the house of Pyara during the night of the occurrence. She is, therefore, a natural witness and her evidence can safely be acted upon.
11. The above evidence demonstrates with unerring certainty that both Uda and Laxman were part of the unlawful assembly and they played an active role in the commission of the various crimes.
12. As regards the second point, we may Straight-way say that there is no substance in the argument advanced by the learned Counsel that the appellants, who were charged with sharing the common object with tha unlawful assembly, cannot be convicted for the vicarious liability because as many as 18 persons were acquitted and there remained only four who were convicted.
13. The case for the prosecution, when analysed, consists of 4 parts:
1. that there was an unlawful assembly of 40 or SO persons, the common object of which wa3 to forcibly kidnap Mst. Rajki;
2. that two persona Pyara and Mat. Luduri were beaten by the members of the unlawful assembly and both of them died in conse. quence of the injuries suffered by them;
3, that the injuries caused by the members of the unlawful assembly in prosecution of the common object were such that the members of the assembly knew to be likely to be caused; and
4. that the four accused were the members of the unlawful assembly. The result of the findings of the trial court is that all the 4 parts were made out. On that account, we are unable to hold that the appellants, who are proved to be members of the unlawful assembly, could escape liability for conviction Under Section 302, read with Section 149; Penal Code. On the finding recorded by tbe trial Court, and from the evidence produced by the prosecution, it inevitably follows that fatal injuries were caused to Mst. Laduri by some of the members of the unlawful assembly which the members of the assembly knew to be likely to be caused in prosecution of the common object of the assembly. Failure to bring home that a member or members of unlawful assembly, named by the witnesses for the State, caused a particular injury, which resulted in the death of the deceased, would not result in the rejection of the case of the State against persons proved to be members of the unlawful assembly, if the common object of the assembly and the commission of the offence in the prosecution of the common object of the assembly or which the members knew to be likely to he committed, be proved. Where a member of an unlawful assembly is named as an offender who committed an offence for which the members of the assembly are liable Under Section 149, Penal Code, and the evidence at the trial is insufficient to establish that the named person committed the act attributed to him, he may still be convicted of the offence, if it is proved that he was a member of the unlawful assembly and that the act was done by some member of the assembly in proeecu. tion of the common object or which the members knew to be likely to ba committed in prosecution of that object. Failure to prove the presence of the named offenders among the members of the unlawful assembly will not affect the criminality of those who are proved to be the members of the assembly, where other conditions of the applicability of Section 149, Penal Code are established. Simply because the testimony of a witness, who deposed to the assault by the named offender is not accepted, other members proved to be members of the unlawful assembly cannot escape liability arising from the commission of the crime.
14. In the present case the trial Court found that on the day in question more than 40 or 50 persons formed an unlawful assembly, the common object of which was to forcibly take away at all costs Mst. Rajki and to kill those who resisted. The offence being such that it was known to be likely to be committed, every person who was a member of that unlawful assembly at the time of commission of the offence would, by virtue of Section 149, Penal Code, be guilty of the offence committed.
15. The argument that some of the accused persons alone bad the object of causing the death of Mst. Laduri cannot on the evidence be accepted as correct, the object to beat up and kill those who resisted the kidnapping of Mat. Rajki was, according to the case of the prosecution, common to all the members of the unlawful assembly and that object stands proved by the abundant evidence. Failure to establish which of the particular persons form, ed unlawful assembly does not, in our judgment, affect the liability of the persons proved to be the members of the unlawful assembly for the acts done in prosecution of the common object, or which they knew to be likely to be committed in persecution of the object thereof. Where, as here, a concerted attack ii made on the victim by some persons, it ii often difficult to determine the actual part played by each offender. But on that account for an offence committed by the members of the unlawful assembly in the prosecution of the common object or for an offence which was likely to be known to be committed in prosecution of the common object, persons proved to be members cannot escape the con-sequences arising from the doing of that act which amounts to an offence,
16. learned Counsel for the appellants referred to a Supreme Court decision reported as Mohan Singh v. State of Punjab : AIR1963SC174 wherein it has been observed that if both the charge and the evidence are confined to the person named in the charge and out of the persons so named two or more are acquitted leaving before the Court less than 5 persons to be tried, then Section 149, IPC, cannot be invoked. On the basis of the authority learned Counsel urged that as all the offenders have not been named in the charge and out of the 22 accused persons 18 have been acquitted, Section 149, I. P.C. is not applicable to this case. In this connection, suffice it to say that the charge is not confined to only 22 persons. Besides that the prosecution evidence suggests that the unlawful assembly consisted of some 40 to 50 persons, all of whom could not be identified. In that', situation the Court may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried would not not necessarily displace the charge Under Section 149, IPC, because along with the four accused persons] convicted, there were others who composed the unlawful assembly but who could not be identified. In support of this proposition we would like to quote below a relevant passage from A.I.R. l963 S 0 174 (supra) :
There is no legal bar preventing the Court of facts from holding that though the charge specified only 5 or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified.
The above judgment further elucidates :
It is possible that though the charge names five or more persons as composing an unlaw-ful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named.
17. Here we may also refer to 3 representative decisions of the Supreme Court ; Dalip Singh v. State of Punjab : 1SCR145 , B. M. Dana v. State of Bombay : 1960CriLJ424 and Kartar Singh v. State of Punjab A.I.R. 1861 S C 1787. The ratio decidendi in these decisions is that when the number of the alleged assailants is definite and all of them are named and the number of persons found to be proved to have taken part in the incident is less than 5, then it cannot be held that the assailants' party must have comprised of 5 or more persons. If the judgment concludes that the unlawful assembly consisted of more than 5 persons, out of whom persons less than five were identified and not the rest, then it is[ open to the Court to resort to Section 149, IPC, as the prosecution case is not confined only to the persona so identified. These decisions illustrate how Section 149,1. P.C., can be applied even if some of the persons actually charged are acquitted. In that view of the matter, there being positive evidence in the present case that the assailants were 40 to 50 in number, the appellants are not entitled to contend that as 18 persons have been given benefit of doubt, Section 149, IPC, cannot be invoked against them. We accordingly hold that the conviction of the accused Hariram and Onkar Under Section 302/149,1. P.C., cannot be assailed,
18. We may now switch over to the last point regarding the alleged defect in the first information report. Arjun P.W. 7 lodged this report. He collected information from Hamji, Chokhla, Vaja, Lambra and Lakhma and then went to the police station, Pratabgarh and lodged an oral report regarding the mishap. learned Counsel submits that when the witnesses themselves did not know the names of all the accused persona, how the names of several accused in Ex. P-30 could be mentioned has not been explained by the prosecution and, therefore, the whole prosecution story should be jettisoned or thrown overboard.
19. The first information report is the information recorded Under Section 134, Criminal P. G. It is an information given to a police officer relating to the commission of a crime. It is also an information given by an informant on which the investigation starts. It is not a substantive piece of evidence, but it can only be used to corroborate or contradict the evidence of the informant given in Court or to impeach his credit. It follows that a Judge cannot consider such a report as a substantive evidence, but can only refer to that portion of it which had been used for one or the other aforesaid purposes : vide State of Bombay v. Rusy Mistry : AIR1960SC391 . That being V the settled law, we cannot use document Ex. P-30 for the purpose not permitted by the statute and reject the entire prosecution version. Inclusion of some more Dames in the first information report does not indicate that the whole story is concocted. This does not affect the unimpeachable direct evidence available on the record. In this manner, the last point advanced on behalf of the appellants is also devoid of substance. No other point was pressed in the course of arguments.
20. In the result, these two appeals having no force stand dismissed.